In re D.C. CA4/2

Filed 3/24/23 In re D.C. CA4/2
See dissenting opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re D.C., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
E078193
Plaintiff and Respondent,
(Super.Ct.No. J279005)
v.
OPINION
D.C.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Bryan K. Stodghill,
Judge. Affirmed.
Jennifer A. Gambale, under appointment by the Court of Appeal, for Defendant
and Appellant.
1
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski, Donald W.
Ostertag and Juliet W. Park, Deputy Attorneys General, for Plaintiff and Respondent.
On June 10, 2019, when defendant and appellant D.C. was 16 years old, and
already on probation, he had a confrontation with the victim inside a Stater Bros. grocery
store in Baseline. Defendant pulled a handgun from his fanny pack and pointed it at the
victim. The victim walked out of the store and defendant put away the handgun. The
victim then ran back into the store and tackled defendant. Defendant’s friend, Justin Bell,
was able to pull the victim off defendant. Defendant pulled the handgun out of his fanny
pack and shot the victim. The victim fell to the ground and defendant kept shooting him
until defendant finally fled the store. The victim died at the scene.
A juvenile wardship petition was filed against defendant pursuant to Welfare and
Institutions Code section 602, subdivision (a), charging defendant with murder, several
weapons-use allegations and a gang allegation. After a contested jurisdictional hearing,
the juvenile court found defendant guilty of the lesser included crime of voluntary
manslaughter; the weapons-use allegations were dismissed; and the gang allegation was
found not true.
On appeal, defendant contends insufficient evidence supported the juvenile court’s
finding that he committed voluntary manslaughter because the People failed to prove he
was not acting in self-defense when he fired the fatal shots.
2
FACTUAL AND PROCEDURAL HISTORY
A. PROCEDURAL HISTORY
On February 6, 2019, defendant was placed on probation and was released to his
mother’s custody after an incident involving an assault on a peace officer and possession
of a firearm. On July 5, 2019, the San Bernardino County District Attorney’s Office filed
a subsequent juvenile wardship petition pursuant to Welfare and Institutions Code section
602, subdivision (a), charging defendant with a violation of Penal Code section 187,
subdivision (a). In addition, he was charged with personally and intentionally
discharging a firearm causing great bodily injury or death within the meaning of Penal
Code section 12022.53, subdivisions (d); personally and intentionally discharging a
firearm within the meaning of Penal Code section 12022.53, subdivisions (b) and (c): and
that the crime was committed on behalf of and at the direction of a criminal street gang
within the meaning of Penal Code section 186.22, subdivision (b)(1)(C).
A jurisdictional hearing commenced on October 29, 2021. After the hearing, on
November 23, 2021, the juvenile court found defendant guilty of the lesser included
offense of voluntary manslaughter within the meaning of Penal Code section 192,
subdivision (a). The juvenile court found the gang allegation pursuant to section 186.22,
subdivision (b)(1)(C) not true and dismissed all the weapons-use allegations under
section 12022.53 finding they did not apply to voluntary manslaughter. On December 9,
2021, defendant was continued as a ward of the court. He was given a total sentence of
seven years four months to be served in a youth treatment facility, with credit for 950
days already served in custody.
3
B. FACTUAL HISTORY
1. EYEWITNESS TESTIMONY1
On June 10, 2019, at 4:13 p.m., defendant entered the Stater Bros. grocery store in
Baseline (store) with another male identified as Justin Bell and a female who was
identified as Alisha Turner. When they entered the store, Joseph Ramirez, an employee,
was restocking sodas in the front of the store. He observed a man in a red shirt, later
identified as the victim, walk by a man with a fanny pack, who was identified as
defendant. Joseph2 saw defendant pull a gun out of the fanny pack and saw the victim
leave the store. As Joseph was restocking, he heard fighting behind him. He then heard
five gunshots; he ran and hid in the janitor’s closet.
In his statement to police, Joseph stated that he saw “three guys” together in the
store; one of them had a fanny pack. Another man in a red shirt walked past them. The
man pulled a gun out of his fanny pack and pointed it at the man in the red shirt; the man
in the red shirt left the store. The three men ran toward the front door. The man in the
red shirt “starts coming at the guy with the fanny pack.” They started fighting. The man
with the fanny pack pulled out the gun and then Joseph heard two shots. Joseph ran to
the janitor’s closet and hid. He heard several more gunshots.
1 Several witnesses were presented to support the gang allegation. Since the trial
court found the gang allegation not true, we will not provide the facts from these
witnesses.
2We refer to some witnesses by their first names for clarity due to shared last
names (Cal. Rules of Court, rule 8.90(b)). No disrespect is intended.
4
Maritza Mendez was in the store at approximately 4:30 p.m. on June 10, 2019.
She had seen the victim while she was waiting in line at the store. He was paying for
groceries in another line. The victim approached defendant, who was standing farther
back in the same checkout line. Mendez heard defendant tell the victim to step away
from him or he was going to shoot him. Defendant pointed a gun at the victim. When
defendant pointed the gun at the victim, the victim backed up and walked away.
Defendant was cussing at the victim.
Mendez observed the victim start to leave the store but came back when defendant
said something to him. Defendant jumped out of the line. Defendant told the victim that
they should handle their problems outside and the victim said he was not leaving the
store. Defendant then shot the victim. Mendez heard three gunshots. She ran to the back
of the store. Mendez did not see a physical altercation between the victim and defendant
prior to the shooting. Mendez did not see any weapons in the victim’s hands before he
was shot by defendant.
Virginia Pedersen was also shopping at the Stater Bros. store around 4:00 p.m. on
June 10, 2019. While shopping, she observed defendant and the victim arguing. They
were fighting while the victim was in the process of paying for his groceries. Defendant
asked the victim to go outside the store but he refused. Defendant pulled out a gun.
Pedersen did not see shots fired as she hid behind the cashier. She heard five gunshots in
rapid succession. She did not see anything in the victim’s hand prior to him being shot.
She identified defendant as the shooter.
5
Kevin Davis was working at one of the checkstands at around 4:20 p.m. on June
10. He heard “yelling and scuffling.” He then heard a woman yell that someone had a
gun. He saw defendant pull a gun out of his fanny pack. At some point, defendant and
the victim were fist-fighting. The victim appeared to be leaving the store, but ran back in
the store and he and defendant were again fist-fighting. It was then that defendant pulled
the gun out of his fanny pack. Davis ran to the janitor’s closet and did not see the shots
that were fired. He heard between four and six gunshots. There were two initial
gunshots and then a few single shots. The victim did not appear to have a weapon.
Teresa Ramirez, an employee at the store, was on her lunch break at 4:20 p.m.
She was in the break room. As she was headed back into the store after her lunch, she
observed the victim and defendant fighting in the store. She did not see how the fight
started. As they were fighting, defendant pulled out a gun and shot the victim. Ramirez
recalled one gunshot and the victim kept fighting. She then heard more shots fired and
the victim fell to the floor. She heard a total of four gunshots. She recalled that all of the
shots fired by defendant were while the victim was still standing. She told law
enforcement on the night of the incident that defendant also shot at the victim while he
was on the floor. She insisted she did not intend to the tell the officers that defendant
shot at the victim while he was on the ground. The victim did not have a weapon.
A portion of Teresa’s statement made to the police was played. She stated, “There
was one when he was about to fall on the floor, and then there was three more once he
was already on the floor.”
6
B. INVESTIGATION
San Bernardino Police Detective Flesher responded to the shooting at around 5:00
p.m.. Bullet fragments were found near the victim’s body. There were three bullet
strikes to the tile floor and to the railings near the cash register lanes in the store. A bullet
ricocheted off the ceiling. A metal object shaped like a cat’s head was found near the
victim. It could possibly be used as a weapon.
San Bernardino Police Sergeant Plummer responded to the shooting. He showed
Joseph a photographic lineup on June 12, 2019. Joseph identified defendant’s
photograph as the person who was the shooter. Defendant was arrested on July 2, 2019,
at a motel in San Bernardino.
Gregory Romano worked at the Stater Bros. as the supervisor of investigations.
He was in charge of maintaining the surveillance video at the store. Romano stated there
were surveillance cameras both inside and outside the store. They all showed different
angles of the shooting. He provided the video surveillance taken at the time of the
shooting to law enforcement. Romano described the videos. One angle of the video
showed defendant, Bell and Turner entering the store at 4:13 p.m. and grabbing a
shopping cart. They went toward the first aisle in the store. The victim and his friend
were also in the store and passed by defendant’s group. The groups went to opposite
areas of the store.
The confrontation and shooting began at 4:23 p.m. Defendant appeared to be
walking toward the exit of the store and the victim could be seen running toward him.
The victim did not appear to have anything in his hands. Defendant put his hand over his
7
fanny pack. The video showed Bell “in a physical hold” with the victim while defendant
had a gun in his hand. The video then showed Bell running towards the exit door, and the
victim “down to his knee and in a physical hold with” defendant. Customers in the lines
at the store appeared to be ducking down behind the registers and running away from the
register area.. The next image from the video surveillance showed the victim down on
the ground and defendant standing over him. The next image was the victim on the
ground and defendant standing over him holding a gun in his hand.
Detective Flesher stated that the video surveillance did not show the bullets
striking the floor or any other objects. You could see the location where the
confrontation occurred and approximately when the shooting occurred. Defendant was
seen fleeing the scene and still shooting, approximately one or two times, toward the
victim, who was lying on the ground. On the video, “you can see the suspect reaching
into the fanny pack, removing a revolver, and engaging with the victim again. The victim
falls to the ground. The suspect then starts retreating away from the victim as he is
pointing the gun and firing at him on the ground.” No revolver was found that was
suspected to be the murder weapon.
The videos were shown to the juvenile court.3 In pertinent part, the video showed
defendant standing at the entrance of the store. The victim rushed back into the store and
ran directly at defendant. They struggled. Bell grabbed the victim while defendant
turned his back and pulled his gun out of his fanny pack. Defendant pointed the gun at
3 Defendant has provided these videos to this court without objection from the
People.
8
the victim and Bell ran. Defendant was about one foot from the victim at this point. The
victim then fell toward defendant and the victim went to the ground. Although obscured
somewhat from view, defendant can be seen close to the victim as the victim is on the
ground. Defendant appears to be standing over the victim pointing the gun directly at
him. Defendant then ran from the store, shooting back at the victim, who lay on the floor.
The prosecution submitted still photographs from the video surveillance.
Defendant could be seen with the shopping cart and wearing a white fanny pack. The
victim and defendant appeared to be staring at each other. The victim walked out of the
store. The victim returned to the store and grabbed defendant. Bell held onto the victim
while defendant had his back to them but was within a few feet. In the next image,
defendant was facing both of them. The next images showed defendant and the victim
holding onto each other and then the victim falling to the ground. A gun cannot be seen
but everyone in the store was either running or ducking down. Bell was running out the
door. The next image showed defendant standing directly over the victim who was on
the ground. Defendant’s hand was stretched toward the victim. The victim appears to be
on his side while defendant shoots down at him with his arm outstretched looking to
nearly touch the victim. Defendant was then seen running away and still facing back at
the victim with his hand outstretched with the gun in his hand.
Dr. Changrsi performed an autopsy on the victim. Both bones in the victim’s
upper arms were broken; this was caused by gunshots. There were projectile fragments
in the right side of the victim’s chest, both upper arms, and left upper back. The victim
had five gunshot wounds. There were entry gunshot wounds on his left upper chest, left
9
side of his abdomen, front of both upper arms, and the back of his left thigh. There was
soot around the gunshot wound to the left upper chest. This meant that the gun was
within one-half inch of the victim when it was fired. The bullet traveled through his body
and exited the right side of his back injuring his left lung, pulmonary artery, heart, aorta,
right lung, and liver. There was internal bleeding associated with this gunshot in both the
lungs and heart.
The wound to the abdomen also had soot around it revealing that the gun was
within one-half inch of the victim when it was fired. This bullet exited through the left
side of the back injuring the victim’s spleen and kidney. There was internal bleeding
from this gunshot wound. The one shot to the upper arm entered the front upper arm,
broke the bone, and then exited the inner upper arm. There was no soot or stippling on
this wound. The gun was fired from at least two feet away from the victim to cause this
injury. The gunshot wound to the left upper arm had stippling but not soot. This showed
that the gun was fired from between one and two feet away. This bullet broke the upper
left arm and moved into the upper back. The projectile was recovered. There was no
soot or stippling on the gunshot to the left thigh. The gun was fired at least two feet from
the victim. The bullet exited the front of the thigh. The victim had other superficial
injuries that may have been caused by bullets hitting something else and then hitting the
victim.
The cause of death was multiple gunshot wounds. The victim would have died in
minutes. The gunshots to the chest and abdomen would be fatal. The gunshot wounds to
the upper arms and left thigh were not fatal. Dr. Changrsi could not determine which
10
gunshots wounds happened first and which ones happened last. He only knew that the
wound to the chest occurred before the wound to the abdomen. Based on toxicology
reports, the victim tested positive for marijuana and methamphetamine. There was no
way of knowing based on the levels how it would have affected him. Autopsy photos
showed the location of the gunshots. The gunshot to the victim’s abdomen was on the
side of the abdomen closer to the victim’s back.
Defendant presented no evidence on his behalf.
DISCUSSION
Defendant contends the juvenile court erred by finding him guilty of voluntary
manslaughter. He claims the juvenile court erred by concluding that when defendant
fired the initial shots, he was entitled to defend himself from the victim, but by
continuing to fire, he used more force than was reasonably necessary. Defendant insists
the fatal shots were the first two shots fired at the victim. Accordingly, when defendant
killed the victim, he was acting in self-defense. It was “irrelevant” that defendant
continued to shoot at the victim while the victim was on the ground. Defendant’s claim
is based on the conclusion that the first two shots fired by him were the fatal shots.
While the evidence could support such a claim, it is not the only interpretation of the
evidence. As such, the juvenile court properly concluded that defendant used
unreasonable force and was guilty of voluntary manslaughter.
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A. ADDITIONAL FACTUAL HISTORY
At the end of the trial, the juvenile court found, “The Court finds in this case that
at the time that the minor fired a weapon that he was entitled to use self-defense. He was
entitled to defend himself from the attack by the identified victim in his case.
“There is, at least in this Court’s mind, and after reviewing the video, there is no
indication that the minor intended, prior to shooting, to kill or further assault the
identified victim in this case.
“The evidence is that the identified victim approached the minor in the grocery
store. The evidence is that as soon as the . . . victim approached the minor, based on the
crowd reaction there was a confrontation. There was no explanation for the victim
approaching the minor. But the evidence suggests that when he made contact with the
minor that the contact was either hostile or confrontational.
“The minor responded by pulling a gun and pointing at the victim and told him to
[g]et away from me or I will shoot you. The Court finds that that is a defensive statement
and not offensive. There was also evidence from witness statements that there was some
discussion as to the parties agreeing to meet outside.
“The victim then immediately left the location where he made contact with the
minor. He then walked outside of the store. Before he walked outside, he looked right at
the minor’s companion. It was clear that the minor and his companion were going to—at
least heading towards the exit to the store.
“As the minor got near the exit, he stopped and he turned to looked [sic] into the
interior of the store. At the time that he turned to look, the gun was in his fanny pack.
12
He didn’t have the gun in his hand. So the minor’s actual intent is not clear to this Court.
What he intended or what he planned to do is not clear.
“However, the victim began to approach the minor in a very quick manner while
the minor’s back was turned.
“As he got closer to the minor, the minor turned around, and it was only when he
saw the victim approaching him that he reached for his fanny pack.
“So the Court can conclude from that that the minor reached for his fanny pack to
defend himself. After he was attacked by the victim, he was able to pull the gun out, and
he fired the gun. At the time that he fired the gun, the Court does believe that he had a
right to defend himself.
“There is—the evidence is, I should say, that the victim was confrontational and
was hostile towards the minor. And he was of unknown—of an unknown capacity and
unknown capability, although we have concluded here from reviewing the video and after
the victim was searched that he didn’t have a firearm. But it’s not clear to this Court
where or not he had any other weapon. It’s possible that he had another weapon.
“And—but what is more important is that in the brief interim of time that the
minor interacted with the victim, he could not have known when the victim came back
into that store whether or not he was armed or not. He could not have known whether or
not he possessed a firearm, whether he possessed a shank or something else. So the
Court believes his initial reaction to being attacked by the victim, of the shooting [of] the
shooting the victim, was justified.
13
“However, under the law for self-defense, the minor could use no more force than
reasonably necessary to defend himself. And the evidence is that he shot the victim five
times. And that there were additional shots that were fired while the victim was on the
ground. To that extent, the self-defense is not available to the minor as he used more
force than was necessary. It’s the Court’s belief that at the time that he formed the
opinion to kill the victim. And, therefore, the self-defense claim does not apply to him.
“The Court does, however, find that being attacked in the manner that the minor
was attacked provided adequate provocation. And that his response to the assault and
then his shooting of the victim was in the heat of passion. And that his killing of the
victim was during the heat of passion in the middle of a quarrel. So the Court believes
that based on the fact that he was—or that the allegation that this is a voluntary
manslaughter is true.”
B. SUFFICIENCY OF THE EVIDENCE
Defendant essentially claims the evidence does not support that he used more
force than necessary to defend himself. The fatal shots were the first two shots and the
remaining gunshots were “irrelevant.”
To review claims of insufficient evidence, “ ‘[w]e presume in support of the of the
judgment the existence of every fact the trier of fact reasonably could infer from the
evidence.’ ” (People v. Westerfield (2019) 6 Cal.5th 632, 713.) “ ‘The same standard
governs review of the sufficiency of evidence in adult criminal cases and juvenile cases:
we review the whole record in the light most favorable to the judgment to decide whether
substantial evidence supports the conviction, so that a reasonable fact finder could find
14
guilt beyond a reasonable doubt.’ ” (In re A.G. (2020) 58 Cal.App.5th 647, 653; see also
In re James B. (2003) 109 Cal.App.4th 862, 872.) Substantial evidence is that which is
“reasonable, credible, and of solid value.” (Westerfield, at p. 713.)
“Where the circumstances reasonably justify the trier of fact’s findings, a
reviewing court’s conclusion the circumstances might also reasonably be reconciled with
a contrary finding does not warrant the judgment’s reversal.” (People v. Zamudio (2008)
43 Cal.4th 327, 358; see also, People v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)
“Even if different inferences can reasonably be drawn from the evidence, we
cannot substitute our own inferences or deductions for those of the trial court. We must
consider all of the evidence in the light most favorable to the prevailing party, giving that
party the benefit of every reasonable inference from the evidence tending to establish the
correctness of the trial court’s decision, and resolving conflicts in support of the trial
court’s decision. (In re Ryan N. (2001) 92 Cal.App.4th 1359, 1373.) “ ‘ “If the
circumstances reasonably justify the trier of fact’s findings, the opinion of the reviewing
court that the circumstances might also be reasonably reconciled with a contrary finding
does not warrant a reversal of the judgment.” ’ ” (People v. Bean (1988) 46 Cal.3d 919,
933.) “[T]he relevant inquiry on appeal remains whether any reasonable trier of fact
could have found the defendant guilty beyond a reasonable doubt.” (Ryan N., at p. 1372.)
“ ‘Self-defense, when based on a reasonable belief that killing is necessary to avert
an imminent threat of death or great bodily injury, is a complete justification, and such a
killing is not a crime.’ ” (People v. Beck and Cruz (2019) 8 Cal.5th 548, 648.) “[A]
defendant acts in lawful self-defense if ‘one, the defendant reasonably believed that he
15
was in imminent danger of suffering bodily injury . . . or was in imminent danger of
being touched unlawfully; two, the defendant reasonably believed that the immediate use
of force was necessary to defend against that danger; and three, the defendant used no
more force than was reasonably necessary to defend himself against that danger.’ ”
(People v. Clark (2011) 201 Cal.App.4th 235, 250.)
“ ‘The principles of self-defense are founded in the doctrine of necessity. This
foundation gives rise to two closely related rules. . . . First, only that force which is
necessary to repel an attack may be used in self-defense; force which exceeds the
necessity is not justified. [Citation.] Second, deadly force or force likely to cause great
bodily injury may be used only to repel an attack that is in itself deadly or likely to cause
great bodily injury. . . . Under these two principles a person may be found guilty of
unlawful homicide even where the evidence establishes the right of self-defense if the
jury finds that the nature of the attack did not justify the resort to deadly force or that the
force used exceeded that which was reasonably necessary to repel the attack.’ ” (People
v. Hardin (2000) 85 Cal.App.4th 625, 629-630.)
Substantial evidence supports the juvenile court’s finding that defendant used
more force than reasonably necessary to defend himself. The question in this case turns
on whether the juvenile court could reasonably conclude that the fatal shot occurred after
defendant no longer had the justification to defendant himself. We must determine if the
trial court reasonably could conclude that fatal shot was inflicted when the victim was on
the ground.
16
This court has reviewed the still photographs from the video, the video itself, and
the witness testimony, and find the evidence supports the juvenile court’s finding that the
fatal shot could have been fired against the victim while he was on the ground. The video
from the side angle is the most helpful in this case. The victim is seen rushing back into
the store and going directly for defendant. Defendant has his gun in his fanny pack when
the victim approached him. The victim was held back from defendant by Bell while
defendant pulled his gun out of his fanny pack.4 From some distance it appears that
defendant shot at the victim, who appeared to go toward defendant, and fell toward
defendant. Defendant had the gun pointed at the victim the entire time. It is not possible
to determine when defendant actually shot the gun from the video. The victim fell to the
ground and defendant leaned directly over the victim still with the gun pointed directly at
the victim. The still photograph appears to show that the victim at this point was on his
side. The autopsy photograph shows that the abdomen shot entered on the victim’s side.
The evidence supports that defendant shot the victim at very close range while the victim
was on the floor and reasonably could have been the fatal shot to the abdomen.
4 We question whether the juvenile court should have concluded that defendant
acted in self-defense in this case. The video makes clear that while the victim first rushed
at defendant, Bell was able to grab the victim and hold him back by both arms. The
juvenile court did not address that Bell was able to stop the victim. Defendant had his
back to the victim and pulled the gun out of his fanny pack. He was in no immediate
danger. While the victim was still being held by Bell, defendant turned and pointed the
gun at the victim. Although the video is not conclusive, it appears that at this point
defendant shot the victim. Bell ran away. Defendant could have fled the scene once Bell
was able to hold back the victim. He also could have used lesser means to defend himself
than shooting the victim, as both he and Bell could have subdued the victim.
17
The juvenile court did not conclude in its ruling that the fatal shots were the first
two shots while defendant and the victim were still struggling.5 Rather, the juvenile court
found that the force used was unreasonable because there were five shots fired , some of
which were while the victim was on the ground. The still photographs from the video do
not conclusively show that the fatal shots were the first two shots fired by defendant. In
fact, the photograph of the victim on the ground shows defendant’s arm outstretched very
close to the victim’s body. The video also shows the victim falling on the ground and
defendant still very close to the victim. The defendant equally supports that the
defendant shot the fatal shot while the victim was struggling with him and falling, as it
does that the defendant fired the fatal shot while the victim was on the ground. The
coroner could not conclusively state that the fatal shot was the one to the chest or to the
abdomen. While the video and still photographs appear to show that defendant shot the
victim in the chest while they were struggling, it also shows that defendant could have
shot defendant in the abdomen after he fell to the ground. Again, the autopsy
photographs show that the abdomen gunshot was to the victim’s side, and the coroner
could not definitely state whether the fatal shot was to the chest or the abdomen. In the
still photograph, defendant was leaning over the victim while he was on the ground and
5 The prosecutor argued in support of first degree murder in his closing that the
first two shots were fatal and defendant kept shooting showing he clearly intended to kill
the victim. The juvenile court rejected that defendant committed first degree murder and
did not state in its ruling that the fatal shots were the first two shots fired. The trial court
independently viewed the evidence, including the video, and could reasonably determine
that the evidence did not conclusively support the prosecutor’s argument that defendant
committed first degree murder. The prosecutor was not required to argue an alternative
theory.
18
the victim appears to be on his side. It was reasonable for the juvenile court to conclude
that defendant shot the victim in the abdomen while he was on the ground.
None of the witnesses described where the victim was shot. The evidence does
not establish the timing of the fatal gunshots, and the juvenile court could reasonably
conclude that shooting five times, especially after the victim fell to the ground, was force
that exceeded defendant’s necessity to defend himself. Even if this court were to review
the evidence and believe it also supports that the two fatal shots occurred while the victim
was still standing, “we cannot substitute our own inferences or deductions for those of the
trial court.” (In re Ryan N., supra, 92 Cal.App.4th at p. 1373.)
Defendant contends this case is unlike People v. McCurdy (1934) 140 Cal.App.
499. In McCurdy, defendant was at a bar and got into an argument with the victim. The
victim rushed at the defendant with a pool cue, and defendant shot him one time causing
the victim to fall to the floor. The defendant then shot the victim several more times. An
autopsy showed that the victim had been shot seven times and that some of the fatal shots
were fired while the victim was on the ground. (Id. at pp. 501-503.) The defendant
claimed he shot the victim in self-defense. The jury rejected the self-defense claim. The
appellate court upheld the finding, holding that while “defendant may have fired the first
shot in self-defense, disabling his assailant, he was not justified in continuing firing or in
fatally wounding the assailed, particularly while the deceased lay upon the floor.
[Citations.] The testimony of the doctor was to the effect that two of the shots fired while
the deceased lay upon the floor would of themselves have caused death. It was within the
province of the jury to determine whether the defendant acted in self-defense and whether
19
the means used were justified. Having resolved these issues against defendant upon
conflicting evidence the verdict of the jury is conclusive.” (Id. at pp. 503-504.)
Here, the evidence established that the victim had been shot five times, two of
which were fatal. The evidence, however, did not establish when the fatal shots were
fired. The juvenile court could reasonably conclude that the fatal shot was fired after
defendant was acting in self-defense. The evidence supports that defendant committed
voluntary manslaughter.
DISPOSITION
The judgment is affirmed in full.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
I concur:
RAMIREZ
P. J.
20
[E078193, In re D.C.]
RAPHAEL, J., dissenting.
Sixteen-year-old D.C. shot his attacker at point-blank range in the heart. The entry
wound showed the gun fired no more than a half-inch from the attacker’s chest.
As the coroner described the shot in his testimony: “the bullet perforates the left
upper chest. It injured the left lung, the pulmonary artery, the heart, the aorta, the right
lung, the liver, and the bullet exited the right side of the back.”
The shot instantly dropped the attacker to the ground, with his legs in the air. It
was a “fatal wound . . . [b]ecause of the injuries to both lungs, the heart, and the liver.”
As the coroner further testified about the shot’s immediate effect: “with this massive
injury . . . the heart is no longer, or slowly becoming, dysfunctioning and it was going to
stop and the decedent was going to die.”
The dispute at trial was about whether D.C. fired in self-defense. The trial court
found that shot was in self-defense. “[A]t the time that the minor fired a weapon [] he
was entitled to use self-defense. He was entitled to defend himself from the attack by the
identified victim in this case.”
Had D.C. stopped shooting when the attacker dropped, the trial court’s self-
defense finding meant that he could not be convicted of a crime, despite killing the man.
But D.C. shot the victim four more times, over less than five seconds, as he fled
from the store. The trial court found that the shots while the victim was on the ground
were not covered by the defense: “there were additional shots that were fired while the
victim was on the ground. To that extent . . . self-defense is not available to the minor as
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he used more force than was necessary.” For those shots, the court found D.C. guilty of
voluntary manslaughter: “being attacked in the manner that the minor was attacked
provided adequate provocation,” so he shot the supine victim “during the heat of
passion.”
With self-defense an all-or-nothing trial issue, a verdict of voluntary manslaughter
could have been supported on either of two theories that encompassed all D.C.’s shots.
First, the trial court could have rejected self-defense but found that the attacker’s
provocation caused all D.C.’s shots to have been made in the heat of passion. Second,
the trial court could have found imperfect self-defense, meaning D.C. had an actual but
unreasonable belief of a need to defend himself. (See, e.g., People v. Rangel (2016) 62
Cal.4th 1192, 1226). But the trial court did not apply these theories, as it found that the
initial shot was in self-defense.
The question that D.C. raises on appeal is whether, where the attacker would have
died from the shot fired in self-defense, the later shots alone can legally support the
manslaughter conviction.
In explaining its verdict, the trial court did not address whether the later shots
caused the death. An act may constitute manslaughter only by causing the death of a
human. (People v. Blakely (2000) 23 Cal.4th 82, 86; People v. Bernhardt (1963) 222
Cal.App.2d 567, 591 [state “must establish the ‘causal connection’ between the violation
and the loss of life”].) Homicide crimes require proximate causation, meaning that “the
death would not have happened without the act.” (People v. Carrillo (2008) 163
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Cal.App.4th 1028, 1038; People v. Bland (2002) 28 Cal.4th 313, 335; CALCRIM No.
572.)
Could the shots on the prone victim — already dropped by a shot in the heart —
have proximately caused his death?
Three shots hit the man’s upper arms and thigh. Those shots obviously cannot
support a manslaughter conviction, as they were not fatal. Shooting the felled man was
criminal, perhaps assault with a deadly weapon, but not manslaughter.
The majority opinion upholds the trial court’s verdict by finding that the shot that
entered the man’s abdomen supported manslaughter. That shot could have been fatal.
But that shot was not the direct (or sole) cause of the death. The death would have
happened anyway from the point-blank shot to the heart. That shot was in self-defense.
Under a concurrent causation theory, a second fatal shot can proximately cause a
death even if a victim would have died from a fatal first shot. If the second shot was a
“substantial factor” in causing the death, a homicide conviction is supported. (People v.
Skiff (2021) 59 Cal.App.5th 571, 581; see CALCRIM No. 572.) The shot cannot be a
“trivial or remote factor.” (Ibid.)
Here, that theory lacks evidence. The point-blank shot to the heart was so lethal
that the coroner explained that the abdomen shot engendered “less blood in the abdomen
than expected” because the heart had already stopped or slowed pumping. The coroner
testified that the attacker “died within minutes” at the scene, and we do not know how he
would have testified if asked whether the abdomen shot hastened the death from the fatal
heart shot—even by a bit. As the shot made in self-defense floored the victim and
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stopped his heart, the further shot may have been a trivial factor in causing the death.
There is no evidence that it was a substantial factor. A concurrent causation theory
simply wasn’t addressed at trial.
The gratuitous shots while fleeing deserve punishment, so it is tempting to rescue
the manslaughter verdict. To do so, the majority opinion resorts to a factual theory not
identified by the trial court and not developed by the People at trial. It lacks substantial
evidence. I respectfully dissent, as I would reverse this conviction.
RAPHAEL
J.
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