People v. Solano CA2/3

Filed 10/20/20 P. v. Solano CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE, B288587
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. VA125790
v.
JULIO SOLANO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Raul A. Sahagun, Judge. Judgment of
conviction affirmed; matter remanded for further proceedings.
Valerie G. Wass, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Chief Assistant Attorney General, Susan Sullivan Pithey,
Assistant Attorney General, Steven D. Matthews and
J. Michael Lehmann, Deputy Attorneys General for Plaintiff
and Respondent.
_________________________
A jury convicted Julio Solano of the first degree murder
of his wife Farrah Lindsay Solano and he pleaded no contest
to possession of a firearm by a felon. Solano appeals and
we affirm his conviction and remand for further proceedings.
BACKGROUND
On July 15, 2013, an information charged Solano with
murdering Lindsay1 on July 15, 2012 (Pen. Code,2 § 187,
subd. (a)), and alleged he personally discharged a firearm
resulting in her death (§ 12022.53, subds. (b), (c), (d)). Count 2
charged Solano with possession of a firearm by a felon (§ 29800,
subd. (a)(1)). The information alleged Solano had a prior
conviction for robbery, which was both a prior serious or violent
felony (§ 667, subd. (a)(1)) and a prior strike conviction (§§ 667,
subds. (b)-(i), 1170.12, subds. (a)-(d)).
Solano pleaded no contest to count 2 and went to trial
on the murder charge in February 2018.
1. Prosecution evidence
a. William Ortiz
Ortiz was Lindsay’s mother’s first cousin, and he had
known Lindsay all of her life and Solano since he was 14. On
July 15, 2012, Lindsay and Solano were separated and had been
fighting on the telephone. She called Ortiz and asked him to go
with her to pick up her kids in Huntington Park, where Solano
was staying with his family. She drove her Honda Pilot to Ortiz’s
house and picked him up around 3:00 or 4:00 p.m., with her
1 For clarity, we use her middle name Lindsay (most often
used by witnesses) and we use the first names of other members
of the Solano family.
2 All subsequent statutory references are to the Penal Code.
2
18-year-old daughter Lizette in the back seat. When they arrived
at the Solano house 10 or 15 minutes later, Lindsay parked in
the street, facing and blocking the driveway, in which a car was
parked. Lindsay went into the house, and Ortiz waited in the
driveway.
Lindsay came back out of the house, with Solano walking
behind her. They both seemed upset. As she passed Ortiz, she
said, “ ‘The fool’s got a gun.’ ” Ortiz walked to where Solano stood
on the porch steps. Lindsay yelled at Solano from the sidewalk.
Solano yelled back: “ ‘You abandoned this family. You are
no longer a part of this family,’ ” and “ ‘Get the fuck out of here.’ ”
Solano looked under control, and Ortiz told him to keep it cool.
Solano nodded and said, “ ‘Yeah. We’ll talk later.’ ”
Ortiz walked back toward Lindsay and Lizette, who stood
on the sidewalk in front of the Pilot, and said: “ ‘Let’s go.’ ”
Lindsay said, “I want to kiss my kids,”3 and headed back to
the house. Her hands were completely empty. Solano was still
on the porch. Lizette got into the driver’s side back seat of the
Pilot, and Ortiz leaned in the passenger side back window talking
to Lizette. He heard three pops, and saw Lizette turn “ghostly
white.” He asked: “ ‘Did something terrible just happen?’ ”
Lizette nodded yes.
Lizette and Ortiz ran back toward the house. Lindsay
was staggering, and dark red blood ran down her arm. Ortiz
put an arm around Lindsay to steady her and walked her to the
passenger side of the Pilot. He heard a commotion and headed
toward the house to take Lizette away from the situation.
3 At the preliminary hearing, Ortiz testified Lindsay said:
“ ‘I’m going to get my kids.’ ”
3
Lizette was trying to enter the house, but family members
held her back. Ortiz grabbed Lizette and said, “ ‘Let’s get out
of here.’ ” They went back to the Pilot. He looked around for
Lindsay, who wasn’t where he had left her by the car. Solano
walked down the driveway and barked at Ortiz to open the gate.
Ortiz nodded at Lizette to move the Pilot. She moved the car,
and Solano drove away.
A neighbor pointed Ortiz to a box van parked across
the street. He rushed over and found Lindsay lying there.
Her brown eyes turned pale gray, and she died.
On cross-examination, Ortiz said Lindsay asked him
to go with her so Solano “wouldn’t do something crazy” in what
he understood was a heated situation. He did not see Solano
with a gun, or in a shooting stance.
b. Aracely Solano Araujo
Solano’s sister Aracely testified she lived in Huntington
Park with her husband and two children. Her sister Catalina
lived in a detached back house. Solano moved into Aracely’s
house in February 2012. His and Lindsay’s two younger children,
12-year-old Julio and five-year-old Rene, lived with him every
other week.
On July 15, 2012, Aracely was cooking rice when she heard
footsteps. She turned around to see Lindsay and Solano passing
through the kitchen as if to go to the back house. Aracely was
surprised Lindsay did not hug or kiss her as she always did.
She asked what happened, and Lindsay said, “ ‘Nothing.’ ” After
a few minutes, Solano walked quickly back through the kitchen
with Lindsay behind him.
A short while later, Aracely went out to the front porch to
see what was going on. Ortiz and Lizette were inside the Pilot,
4
Lindsay was in the driveway, and Solano was on the porch.
Solano said: “ ‘I’m not gonna give you the kids,’ ” and Lindsay
shouted things like: “ ‘Watch. You’ll see. You’ll see what’s
gonna happen. Watch, mother fucker.’ ” Solano shouted:
“ ‘Get out of here. Nobody wants you here anymore. This is
not your family anymore. This is private property.’ ”
Aracely went back inside to check the rice, and heard pops
that were not like fireworks. She went to the front door and saw
Lindsay stumbling and trying to hold onto the side of the car.
She ran back inside to tell her sister to take her mother to
the back house. When she went out again, she saw Lindsay
on the ground by the trash cans behind the car.
Aracely called 911 from inside the house. Solano knocked
on the door of the second living room, asking five-year-old Rene
to open it. After Aracely testified Solano was not holding a gun,
the prosecutor played a recording of Aracely telling the police she
saw Solano holding a gun. Rene opened the door. Solano went
into his room, went back outside, and got into his car.
On cross-examination, Aracely said she loved Lindsay and
Solano did not shoot her. The police had told her what to say,
and she felt pressured. At the preliminary hearing, she testified
she did not see Solano with a gun. Lindsay, however, “always
carries guns,” and once shot one of Aracely’s younger sisters.
c. Lizette Solano
Lizette was 18 in 2012 and lived with her mother in
Rancho Cucamonga. Her little brother and sister split their
time between Lindsay and Solano, who was living with her
aunt Aracely. It was still light on July 15 when she, Lindsay,
and Ortiz arrived at Solano’s house and parked halfway into
the driveway. Solano was smoking a cigarette on the porch,
5
looking upset. Lindsay got out of the car and went up to Solano.
They had what looked like a serious conversation. Lindsay
returned to the Pilot looking worried. She said Solano was
keeping the kids until Wednesday and they were about to leave,
but she wanted to say goodbye to the kids. Lizette asked if it was
okay to say goodbye to her father. She went up to Solano on
the porch and tried to say goodbye, but he was very upset and
said nothing. She went back to the car.
Lindsay was halfway back to the Pilot from the house
as Lizette got into the car. She heard a pop she thought was
a gunshot. She turned around and saw Solano on the porch in
a shooting stance and pointing a gun at Lindsay, who was facing
him. He shot Lindsay two more times, as Lindsay twirled in
a circle to move away, yelling at him to stop, and then stumbled
away. Lizette did not hear Lindsay make any threats. Solano
fled into the house and Lizette ran after him, but one of Lizette’s
aunts pushed her back. She searched for her mother and found
Lindsay across the street lying on her stomach, bleeding
everywhere.
Lizette was screaming, and Ortiz came over. Solano had
jumped into his car, but the Pilot blocked the driveway, and
Lizette moved it so he could get out. “[H]e had a gun in his
hands, so I was scared for my safety so I just let him leave.”
Solano drove away.
Lizette testified Lindsay never got back into the Pilot or
reached in to remove anything, and she never handed anything
to her mother. She had never seen Lindsay with any type of
weapon.
A year later, on July 14, 2013, Solano called Lizette from
jail. He told Lizette, “[I]t’s not a joke in here, baby” and “these
6
people are not playing around.” Solano said, “[E]verything
I wanted was for our family to be together, Lizette,” and she
responded: “You don’t get that. I lost both of my parents.” He
insisted, “[T]his is not what I had planned. . . . I wanted to be
happy with my wife, with my kids again.” Lizette reminded him
it had been a year since her mother was gone, and he replied,
“[T]omorrow is going to be the day for me too.” (The information
was filed the next day.)
Solano asked Lizette to talk to her aunts, and she answered
that when she did “all I get is questioned.” Her little brother and
sister didn’t want to go over there either, and the kids were hers
now. Solano said, “I loved you with all my heart,” but “[t]hings in
here are—are—are different and difficult for me,” and she needed
to talk to her aunts. Then he said: “You could change a lot. You
could just—you—you have the opportunity to bring me home,
baby. This DA wants to give me life, Lizette.” She answered:
“I’m gonna tell the truth, and what I saw is what I saw. . . . I’m
sorry to say it like this too, but it’s a life for a life. You took my
mom’s life.” He responded: “I didn’t take her life, Lizette. That’s
where you got it wrong. I didn’t take her life. God took her life.”
Solano told Lizette he loved her and was proud of her, but
“accidents happen Lizette, and this [is] not what I planned it.
This is not what I wanted. This is—you know that I wanted my
wife back. . . . I wanted to build my family back . . . . You know
your mom was out of control. You—I know what you guys were
doing in the house. I know you guys were partyin’ in the house
and everything.” Lizette responded: “Excuse me. We weren’t
even partying at the house . . . so why do you even say that? . . .
[Y]ou’re [sic] fuckin’ family thinks that shit too.” Solano
explained he meant she had her friends over when Lindsay
7
wasn’t there, and if a minor got hurt, “who do you think would’ve
got blamed for that?”
Solano told Lizette he loved her, and repeated: “That’s not
what I intended. . . . I didn’t take your mom’s life, baby. He
[God] did. . . . God told me to call you today and just ask you to
forgive me.” She told him she loved him and missed him. He
responded: “[L]ike you say, you’re not gonna lie. Sometimes—
you know, we have to do—” and Lizette interjected: “I’m not.”
Solano continued: “. . . what we have to do. I know you don’t
want to. I know you don’t want to, baby. And I know it’s wrong,
but, baby, my life depends on it, love.” Only God could judge him,
and, “All I wanted was her in my life. I just wanted my family.
I don’t got nobody no more.” Lizette answered: “And you think
I do?”
Solano told Lizette he wanted to come back home and live
with her and her little brother and sister, and he promised not
to remarry. “I trust you with my life. And I trust you that you’re
gonna do the right thing . . . . So please momma, I’m begging
you. If you can’t do it for me, do it for [Rene]. Do it for your
brother.” Lizette replied she trusted no one, not even her own
family: “I’m seriously on my own.” Solano said, “They want to
kill me in here, baby.” He urged her: “You do that right choice,
momma. You do that right thing now, because God’s gonna bless
you.” Solano repeated he loved her and was proud of her, and
ended the call with, “[D]o the right choice, momma. Do the right
choice. You hear me?”
On cross-examination, defense counsel grilled Lizette about
insurance money she received after Lindsay’s death and what
she told the Department of Children and Family Services (DCFS)
two months later. Lizette testified Solano, Aracely, and Catalina
8
all were on the porch when Solano shot Lindsay. Solano had
been upset that a male friend of Lizette’s was staying at the
house in Rancho Cucamonga. On redirect, she explained she
did not go into detail when she talked to DCFS, because the
criminal case was ongoing.
d. Forensics and sheriff’s investigation
The medical examiner testified multiple gunshot wounds
caused Lindsay’s death. The fatal wound was from a bullet that
entered the right side of her back and passed through her left
lung and a portion of her heart. The other wounds were caused
by bullets that entered the side of her right arm and the upper
bicep area of her left arm, and there was an exit wound on her
right forearm by her wrist.
Deputy Sheriff Audrey Detreville responded to the scene
and found Lindsay lying on the curb next to a moving truck,
unresponsive and without a pulse. The three or four people
standing around were hysterical. Ortiz told Deputy Detreville
Lindsay said she wanted to kiss her kids before returning to
the house. Aracely did not tell the deputy Lindsay threatened
Solano by yelling, “ ‘You’ll see what’s gonna happen. Watch,
mother fucker.’ ” A detective who arrived at the scene after
midnight marked what appeared to be blood on the third step
of the porch stairs, the driveway, the sidewalk, the street,
and the bumper of a van. No shell casings were found.
Deputy Carlos Delatore testified he searched the Pilot at
the scene. He found an unloaded .32-caliber Beretta in the glove
compartment in a nylon holster and a small magazine in the left
rear compartment. About seven hours after Solano fled and
five hours after the deputies contained the crime scene, two cars
pulled up and Solano and a group of people got out. Solano said:
9
“ ‘I’m the guy you’re looking for. I don’t have any weapons on me.
You can search me,’ ” and asked to see his children before he was
arrested. Tests found no gunshot residue on Solano or Lindsay.
Detective John Duncan and his partner interviewed
Aracely early the next morning at the sheriff’s station. She told
them she heard three shots and saw Solano following Lindsay.
Solano was holding a gun after the shooting, when he asked Rene
to open the door. Detective Duncan also interviewed Lizette,
who said she heard gunshots, turned around, and saw Solano
holding a gun. He shot Lindsay in the back.
2. Defense evidence
Solano’s sister Catalina testified that when she was young,
she and Lindsay were arguing and Lindsay shot her with a gun
Lindsay had in a diaper bag. Catalina went to the hospital
and Solano visited her. On the day of the shooting Catalina—
not Ortiz—was the one who found Lindsay. He was seven houses
away.
3. Closing arguments
The prosecutor argued strong evidence proved Solano
murdered Lindsay, including witness interviews and testimony,
evidence of motive, and Solano’s flight. The defense had
presented no evidence of a conspiracy to take the children
by force. The jail phone call from Solano, in which he asked
Lizette to lie, removed any possible doubt that he fired the shots.
No evidence showed self-defense; the unloaded gun in Lizette’s
car never left the glove compartment. Solano shot Lindsay in
the back. He was angry with someone he once loved, and the
shooting was an intentional act done with malice. Nor did the
evidence show provocation adequate for voluntary manslaughter,
so the jury had to decide “[i]s it a second degree murder or do
10
you go up to first degree murder?” Solano had enough time to
premeditate and make the decision to shoot Lindsay, and then
to shoot twice again. This was a calculated first degree murder.
Defense counsel argued “the government lied to you in your
face.” Lindsay drove to Solano’s house to kidnap her children
when it was Solano’s custodial time. She had a gun, and brought
Ortiz (her “boyfriend”) with her to “break up the fight,” but he
was never searched for a gun or tested for gunshot residue. The
magazine found in the car was missing bullets. Ortiz testified
he did not see the shooting, which meant “at the time of the shots
my client wasn’t there.” Lizette changed her story about seeing
Solano shoot Lindsay after she got the insurance money. No gun
was found. Solano turned himself in, and no gun residue was
detected on him or his clothes. “There is no evidence my client
shot anybody. . . . But there is evidence that the government has
been taking people and having them change their testimony.”
It was not the defense’s job to say who shot Lindsay, but Lizette
and Ortiz were behind Lindsay as she walked to the porch from
the car, they were the only people “that knew they were going
to a fight and needed a weapon,” a gun and a partially loaded
magazine were in the car, and “it’s a level shot” for both Lizette
and Ortiz.
Defense counsel argued first degree murder was “silly.”
Repeating that the prosecutor did not prove beyond a reasonable
doubt that Solano shot Lindsay, he argued “[a]nyone would
be provoked” if someone came to “steal my kids,” and the
instructions on provocation applied. And as for justifiable
homicide, “[y]ou can, by the law, stop someone from coming
to your house and taking your kids,” which was kidnapping.
“You must find the defendant not guilty of murder.” Even if the
11
jury believed the prosecution had proved Solano shot Lindsay,
a defendant was entitled to stand his ground and defend himself
until the danger of kidnap had passed.
Counsel concluded “there is a reasonable doubt as to who
the shooter was because we don’t know who the shooter was,”
and asked the jury to find Solano not guilty.
In rebuttal, the prosecution argued defense counsel was
trying to distract the jury from the evidence by arguing that
Lizette or Ortiz might have killed Lindsay. “[E]very single
shred of circumstantial and direct evidence points one direction,”
toward Solano. He armed himself before he went out to the
porch, and did not act in self-defense or under adequate
provocation. When he called Lizette from jail, Solano did not
tell Lizette he had been angry with Lindsay or defended himself
from her; instead, he asked Lizette to lie.
4. Verdict and sentencing
The jury found Solano guilty of first degree murder and
found the firearm allegation true. Solano admitted the prior
serious felony allegations. The court sentenced him to two years
for his no contest plea to the possession of a firearm by a felon,
doubled for the prior strike. The court imposed a concurrent
term of 25 years to life for the murder, doubled under sections
667, subdivisions (b)-(i) and 1170.12, subdivisions (a)-(d), an
additional 25 years to life under section 12022.53, subdivision (d),
and a five-year enhancement under section 667, subdivision (a).
The total term was five years plus 75 years to life. The court
also imposed fines and fees, which we discuss below.
12
DISCUSSION
1. The trial court properly instructed the jury on
provocation
Solano argues the instructions did not inform the jury
about provocation sufficient to reduce first degree murder to
second degree, and this prejudiced him. CALCRIM No. 520 told
the jury if they decided that Solano committed murder, “it is
murder of the second degree, unless the People have proved
beyond a reasonable doubt that it is murder of the first degree
as defined in CALCRIM 521.” CALCRIM No. 521 instructed
the jury that Solano was guilty of first degree murder if the
prosecution proved he acted “willfully, deliberately, and with
premeditation,” and “[a] decision to kill made rashly, impulsively,
or without careful consideration is not deliberate and
premeditated.” Without objection from Solano’s counsel, the trial
court instructed the jury on the effect of provocation on a murder
charge using CALCRIM No. 522: “Provocation may reduce a
murder from first to second degree and may reduce a murder
to manslaughter. The weight and significance of the provocation,
if any, are for you to decide. [¶] If you conclude that the
defendant committed murder but was provoked, consider the
provocation in deciding whether the crime was first or second
degree murder. Also, consider the provocation in deciding
whether the defendant committed murder or manslaughter.”
Solano argues the court was required to give the jury
an additional instruction, explaining that provocation sufficient
to reduce the crime to second degree murder is judged by
a subjective standard. He claims such an instruction was
necessary to distinguish the provocation sufficient to reduce
murder to heat-of-passion manslaughter, which must meet an
13
objective standard (as the jury was instructed with CALCRIM
No. 570, “provocation [that] would have caused a person of
average disposition to act rashly and without due deliberation,
that is, from passion rather than from judgment” (italics added)).
The People respond that, because Solano failed to object
or request a modification or an additional instruction, he has
forfeited this argument. In People v. Mayfield (1997) 14 Cal.4th
668, 778, the trial court gave an instruction on how provocation
should be considered in evaluating whether the defendant
deliberated and premeditated. The defendant argued the
instruction was ambiguous and failed to tell the jury what
subjective factors to consider in deciding how provocation related
to the elements of first and second degree murder. Our Supreme
Court pointed out, first, that the instruction was a pinpoint
instruction the trial court did not have to give sua sponte, and,
second, that the court was under no obligation to amplify or
clarify the instruction in the absence of a request. (Id. at pp. 778-
779.) Nevertheless, if the court gave misleading instructions
to the jury, the error would affect Solano’s substantial rights,
so we address the issue. (People v. Hernandez (2010) 183
Cal.App.4th 1327, 1333, fn. 3.)
In People v. Jones (2014) 223 Cal.App.4th 995, Division 4
of this district faced the same contention. As here, the jury had
been instructed with CALCRIM Nos. 520 (First or Second Degree
Murder with Malice Aforethought), 521 (First Degree Murder),
522 (Provocation: Effect on Murder), and 570 (Voluntary
Manslaughter: Heat-of-Passion Lesser Included Offense).
(Jones, at p. 999.) Like Solano, the appellant argued “that jury
instructions on the doctrine of provocation were misleading
because they did not, or did not explicitly, inform the jury that
14
the objective standard applies only for reduction of murder to
voluntary manslaughter, and does not apply to reduce first to
second degree murder.” (Ibid.) The instructions were correct,
because “[t]hey accurately inform the jury what is required for
first degree murder, and that if the defendant’s action was in fact
the result of provocation, that level of crime was not committed.
CALCRIM Nos. 521 and 522, taken together, informed jurors
that ‘provocation (the arousal of emotions) can give rise to a rash,
impulsive decision, and this in turn shows no premeditation and
deliberation.’ ([People v.] Hernandez, supra, 183 Cal.App.4th at
p. 1334.) As the jury also was instructed, a reduction of murder
to voluntary manslaughter requires more. It is here, and only
here, that the jury is instructed that provocation alone is not
enough for the reduction; the provocation must be sufficient
to cause a person of average disposition in the same situation,
knowing the same facts, to have reacted from passion rather than
judgment.” (Id. at p. 1001.) Similarly, here, the instructions
were not incorrect or misleading. “What appellant is arguing is
that a more specific instruction, actually a pinpoint instruction,
should have been given informing the jury that the objective test
did not apply to reduction of the degree of murder. [Citation.]
Defense counsel did not request such an instruction, and his
failure to do so forfeits the claim on appeal.” (Ibid.)
Solano attempts another tack, arguing that provocation
for second degree murder has “a technical meaning peculiar to
the law,” requiring the court to give an instruction. But “[i]n this
context [CALCRIM Nos. 521 and 522], provocation was not used
in a technical sense peculiar to the law, and we assume the jurors
were aware of the common meaning of the term.” (People v.
Hernandez, supra,183 Cal.App.4th at p. 1334.) Although the jury
15
in People v. Hernandez had not been instructed on voluntary
manslaughter, “a word or phrase has a technical, legal meaning
that requires clarification only if it ‘has a definition that
differs from its nonlegal meaning.’ ” (People v. Elam (2001)
91 Cal.App.4th 298, 306.) Here, the common nonlegal and
legal meanings of “provocation” are not different. We agree
with People v. Jones, that when CALCRIM No. 570 is given,
the pattern instructions are not misleading.
Because the instructions were correct and not misleading,
they did not violate federal or state law. For the same reason,
we reject Solano’s argument that his trial counsel was ineffective
when he failed to request a pinpoint instruction on provocation.
2. The prosecutor did not commit misconduct
In closing argument, the prosecutor discussed CALCRIM
No. 570, telling the jury voluntary manslaughter was a killing
that occurs in a heat of passion, requiring a provocative act by
the victim that caused the defendant to “act[ ] out of intense
emotion and not out of reason, and that there was an insufficient
time to cool off.” Such a defendant did not engage in calculated
decisionmaking. The prosecutor continued: “I want to know,
what is the provocative act that occurred here? [¶] I would
imagine that throughout the world these custodial issues are
happening time and time again. Is that it? Is that all that
it takes? That it was his day, not hers, and that this caused him
to be so provoked that it obscured his judgment? You decide.
You, the jury, decide to set the standard. It is a reasonable
person standard. He does not get to set his own standard
for provocation. [¶] Even if he really was provoked, would
a reasonable person have reacted this way out of an inability
to reason? It’s preposterous. It is not enough to justify this cold-
16
blooded killing. [¶] And, again, I am struggling to understand
which particular act is provocative.” (Italics added.) The
prosecutor argued Solano armed himself well before shooting
Lindsay repeatedly, and there was no heat of passion.
During his rebuttal argument, the prosecutor said Lindsay
wanted the kids a day early and Solano was angry. “But so
provoked by this, the nerve of this woman, to say that a
reasonable person couldn’t act out of their own rational free will,
couldn’t take a breath and go, all right, I know you’re upset,
but you’re not getting the kids back. Couldn’t do that? Just
saw red, had to pull out a gun and shoot her four times. It’s not
reasonable. It could be in different scenarios, but it isn’t here.”
At no point did Solano’s counsel object.
Solano argues that when the prosecutor used the language
italicized above, he misstated the law of voluntary manslaughter
and committed misconduct. But he forfeited this appellate
argument by failing to object and request an admonition to cure
any harm, because “[n]othing suggests an objection would have
been futile or an admonition inadequate to cure any harm.”
(People v. Adams (2014) 60 Cal.4th 541, 569.) This is not a close
case with grave doubt about Solano’s guilt, nor is it likely that
the prosecutor’s remarks materially contributed to the jury’s
finding that he was guilty of first degree murder. (People v.
Ferguson (1982) 129 Cal.App.3d 1014, 1022.)
We address the merits only as necessary to decide
Solano’s claim that his counsel’s failure to object was ineffective
assistance. (People v. Ochoa (1998) 19 Cal.4th 353, 431.) Solano
has a state and federal constitutional right to the effective
assistance of counsel. To show that he did not receive that
assistance, he must establish by a preponderance of the evidence
17
that his counsel’s representation was objectively unreasonable,
and that it is reasonably probable that the outcome of his trial
would have been different but for counsel’s error. (People v. Mai
(2013) 57 Cal.4th 986, 1009.)
Solano contends that by asking the jury “would a
reasonable person have acted this way out of an inability
to reason?”, the prosecutor told the jury to focus not on whether
the provocation was sufficient to cause a reasonable person to act
rashly, but whether a reasonable person would do what Solano
did—react “this way” by shooting Lindsay. To determine
whether the defendant’s reason was obscured by provocation
sufficient to negate malice, “[t]he focus is on the provocation—
the surrounding circumstances—and whether it was sufficient
to cause a reasonable person to act rashly. How the killer
responded to the provocation . . . is not relevant to . . . heat of
passion.” (People v. Najera (2006) 138 Cal.App.4th 212, 223.)
The prosecutor’s argument on heat-of-passion voluntary
manslaughter focused on the elements described in CALCRIM
No. 570, and correctly emphasized that the evidence did not show
a provocative act by Lindsay adequate to cause a reasonable
person to act out of intense emotion and not reason: “It is a
reasonable person standard. He does not get to set his own
standard for provocation.” The single passing reference to
“the way” Solano reacted appeared in a phrase that properly
asked the jury to consider whether, even if Solano actually
was provoked, it would be objectively reasonable for Solano
to have lost his ability to reason.
And the jurors were properly instructed with CALCRIM
No. 570 that they should “consider whether a person of average
disposition, in the same situation and knowing the same facts,
18
would have reacted from passion rather than from judgment”
to decide whether provocation was sufficient for heat-of-passion
voluntary manslaughter. The court also instructed the jury
that if the attorneys’ comments conflicted with the instructions,
it should follow the court’s instructions. We presume the jury
understood the instructions and followed them as given. (People
v. Yeoman (2003) 31 Cal.4th 93, 139.)
It is not reasonably probable that absent the prosecutor’s
remark, the jury would not have found Solano guilty of first
degree murder.
3. The court was not required to give CALCRIM No. 506
Defense counsel argued Lindsay, Ortiz, and Lizette were
“clearly armed,” and arrived “knowing . . . there was gonna be
a fight.” They arrived at the Solano house “with the intentions
of aiding and abetting Mrs. Solano in committing the crime of
kidnap and/or battery and/or assault, went onto the property
that my client lawfully resided at,” and the “ ‘stand your ground’ ”
rules applied. Counsel requested CALCRIM No. 506 (Defending
Against Harm to Person Within Home or on Property). The
prosecutor agreed the court should give CALCRIM No. 505
(Justifiable Homicide: Self-Defense) because defense counsel
argued self-defense, but objected to giving CALCRIM No. 506.
The court declined to give the instruction, finding insufficient
evidence “to establish that there was any intention to enter
the house for the purpose of committing an atrocious crime or
a kidnapping.”
CALCRIM No. 506 tells the jury the defendant is not
guilty of murder or voluntary manslaughter if he killed to
defend himself in his home. Such a killing is justified if “1. the
defendant reasonably believed that [he] was defending a home
19
against [the victim], who . . . intended to or tried to commit [a]
forcible and atrocious crime . . . ; 2. The defendant reasonably
believed that the danger was imminent; 3. The defendant
reasonably believed that the use of deadly force was necessary
to defend against the danger; AND 4. The defendant used no
more force than was reasonably necessary to defend against
the danger.” (CALCRIM No. 506.) The instruction explains
“[b]elief in future harm is not sufficient, no matter how great
or how likely the harm is believed to be.” (Ibid.)
A trial court must instruct on general principles of law
relevant to the issues raised by the evidence, including defenses.
(People v. Lopez (1992) 11 Cal.App.4th 1115, 1120.) An
instruction is required whenever the evidence is substantial
enough to merit consideration by the jury. (People v. Breverman
(1998) 19 Cal.4th 142, 154.)
To demonstrate he was entitled to the instruction, Solano
must point to substantial evidence in the record showing he
reasonably believed he was defending himself in his and his
sister’s home against Lindsay, who intended to commit an
atrocious crime; the danger was imminent; and he reasonably
believed the use of deadly force was necessary.
First, we agree with the trial court that Lindsay’s coming
to the house to pick up her two young children before the day
agreed on in the couple’s informal custody arrangement was not
an intentional attempt to commit an atrocious crime. And in
any event, to instruct with CALCRIM No. 506, there must be
evidence the defendant acted in self-defense or defense of others,
meaning “he or she reasonably believed the intruder intended to
kill or inflict serious injury on someone in the home.” (People v.
Curtis (1994) 30 Cal.App.4th 1337, 1360.) No evidence showed
20
Solano could reasonably believe Lindsay intended to kill or inflict
serious injury on someone in the house as she walked away.
Second, the evidence was that Lindsay walked back toward
the house to say goodbye to her children after telling Ortiz
“[t]he fool’s got a gun”; her hands were empty; she did not get into
the Pilot or reach inside the car; and Lizette did not hand her
anything. The evidence also showed Solano continued to shoot
Lindsay after she turned around, following her as she walked
down the driveway away from the house, and delivering the
fatal shot to Lindsay’s back. No substantial evidence supports
a conclusion Solano could reasonably believe the danger that
Lindsay would enter the house to commit an atrocious crime
was imminent. Lindsay was walking away when he shot her.
“[D]efense of habitation applies only if the defendant’s belief that
a trespass is occurring or about to occur is reasonable.” (Id. at
p. 1361.) Finally, no substantial evidence supports a conclusion
that Solano could reasonably believe deadly force was necessary
to protect his home against an unarmed woman whom he shot
twice as she walked away toward her car.
The trial court did not err in declining to instruct the jury
with CALCRIM No. 506. In any event, any error would have
been harmless. The court did instruct the jury on the elements
of kidnapping in CALCRIM No. 1215, and CALCRIM No. 505
told the jury a killing was justified if the defendant reasonably
believed that someone else “was in imminent danger of being
kidnapped,” and reasonably believed the immediate use of deadly
force was necessary to defend against that imminent danger.
4. Counsel’s argument was not ineffective assistance
Solano claims his private counsel’s performance in closing
argument “fell below the standard of reasonable competence
21
expected of criminal defense attorneys” and showed an
“inaccurate assessment of the evidence and the law.” Despite
strong evidence Solano shot Lindsay, counsel argued there
remained a reasonable doubt that he was the shooter. Solano
also complains the evidence did not support self-defense, and yet
counsel argued this as an alternate theory. Solano maintains his
counsel should have argued he was guilty of provocation-based
voluntary manslaughter or second degree murder, and if counsel
had made these arguments, it is reasonably probable the jury
would have found Solano guilty of manslaughter or second degree
murder instead of premeditated first degree murder.
To prevail on a claim of ineffective assistance under either
the federal or state Constitutions, Solano “must show (1) deficient
performance under an objective standard of professional
reasonableness and (2) prejudice under a test of reasonable
probability.” (People v. Mayfield (1993) 5 Cal.4th 142, 175.) We
must consider whether the record contains any explanation for
counsel’s choices, and we do not second-guess tactical or strategic
decisions. (People v. Mitcham (1992) 1 Cal.4th 1027, 1058-1059.)
“Reversals for ineffective assistance of counsel during
closing argument rarely occur; when they do, it is due to an
argument against the client which concedes guilt, withdraws a
crucial defense, or relies on an illegal defense.” (People v. Moore
(1988) 201 Cal.App.3d 51, 57.) “[H]aving chosen to make a
closing argument, counsel cannot argue against his client.
[Citations.] More particularly, unless his client consents, counsel
cannot expressly or impliedly argue to the jury that his client
is guilty.” (People v. Diggs (1986) 177 Cal.App.3d 958, 970.)
Concessions of guilt, however, do not necessarily establish that
counsel is ineffective, and may be part of counsel’s strategy.
22
(See People v. Mayfield, supra, 5 Cal.4th at p. 177; People v.
Mitcham, supra, 1 Cal.4th at p. 1060; People v. McDermott
(2002) 28 Cal.4th 946, 996-997.)
Solano, however, argues his counsel was ineffective because
he did not concede that Solano shot Lindsay. The prosecutor
argued the evidence was strong that Solano shot Lindsay with
premeditation. In response, the defense told a different story:
Lindsay drove to Solano’s house to take the children, bringing
Ortiz along as a bodyguard and carrying a gun in her glove
compartment. This created a reasonable doubt as to who shot
Lindsay during the confrontation over the children. Counsel
maintained this strategy throughout the trial, and “a reasonable
juror would have understood that the defense theory was simply
that the prosecution had failed to prove defendant’s involvement
in the murder beyond a reasonable doubt.” (People v. McDermott,
supra, 28 Cal.4th at p. 997.) We will not second-guess counsel’s
strategy of challenging the credibility of Ortiz’s and Lizette’s
testimony, insisting there was a reasonable doubt Solano shot
Lindsay, and seeking acquittal on that basis. “In the usual case,
where counsel’s trial tactics or strategic reasons for challenged
decisions do not appear on the record, we will not find ineffective
assistance of counsel on appeal unless there could be no
conceivable reason for counsel’s acts or omissions.” (People v.
Weaver (2001) 26 Cal.4th 876, 926.)
Solano’s counsel also argued that first degree murder was
“silly,” and if the jury did find Solano shot Lindsay, it was only
under provocation or in self-defense. The record on appeal
does not “ ‘affirmatively disclose the lack of a rational tactical
purpose’ ” (People v. Williams (1997) 16 Cal.4th 153, 215) for
counsel’s choice to argue the evidence left a reasonable doubt
23
whether Solano fired the shots, and then to argue that even if the
jury disagreed, the evidence did not show a premeditated killing.
To concede Solano fired the shots that killed Lindsay would be to
abandon the theory the defense advanced throughout the trial.
We also see no reasonable probability the result would have
been different if counsel had not argued there was a reasonable
doubt that Solano shot Lindsay, and instead argued Solano
was guilty of second degree murder or voluntary manslaughter.
The evidence that Solano armed himself, went out to the porch,
exchanged words with Lindsay as she walked to her car, and then
shot her multiple times, including in the back, strongly supported
the jury’s finding that he premeditated and deliberated.
Solano points us to In re Jones (1996) 13 Cal.4th 552. In
that habeas case, defense counsel did a completely inadequate
pretrial investigation for a complicated capital trial, failed to
interview a witness who would have testified she was told
someone else killed the victim, elicited damaging testimony from
a young girl that her mother told her the defendant killed the
victim, and failed to object to the introduction of damaging
evidence regarding the defendant’s armed confrontation with a
cocaine dealer and a shooting incident involving the defendant
and his mother-in-law. (Id. at pp. 583-584.) At an evidentiary
hearing, defense counsel explained his reason for not seeking
to exclude the evidence of the mother-in-law shooting (“[T]he
more things that come in the better.”), which “clearly was
unreasonable, and suggested that defense counsel’s ‘tactical’
decisionmaking was grossly flawed . . . . When trial tactics are
motivated by such a fundamental misunderstanding of defense
counsel’s proper role at trial, the likelihood that a defendant
received constitutionally deficient representation obviously
24
is dramatically increased.” (Id. at p. 586.) Given counsel’s many
noted shortcomings on critical issues and the weaknesses in the
prosecution’s case, the court concluded the cumulative effect was
prejudicial and reversed defendant’s conviction. (Id. at pp. 587-
588.)
Here, the list of counsel’s alleged deficiencies is nowhere
near as long or as critical to the outcome of the trial, and the
prosecution’s case was strong. On this direct appeal, counsel
has had no opportunity to explain his motivation for his tactical
choices, and we do not second-guess them.
Solano also cites Duncan v. Ornoski (9th Cir. 2008) 528
F.3d 1222. Defense counsel in a capital murder trial failed to
investigate and present evidence that the blood samples from
the crime scene that did not belong to the victim also did not
belong to the defendant. (Id. at p. 1225.) That was deficient
performance, but because other evidence showed defendant
participated in the robbery, he was not prejudiced with respect to
his conviction for felony murder. (Ibid.) But the blood evidence
could have shown that defendant was not the actual murderer,
and so defendant was prejudiced with respect to the special
circumstance, which required a finding the defendant intended
that the victim be killed. (Id. at pp. 1240-1241.) If counsel had
investigated the blood evidence, tested the defendant’s blood, and
presented the accomplice theory to the jury, it was reasonably
likely that at least one juror would have had a reasonable doubt
that the defendant was the one who killed the victim and
intended for her to die. (Id. at p. 1244.) Counsel did not explain
why he failed to consult a serology expert or investigate the
potentially exculpatory blood evidence, and his explanations for
not testing the defendant’s blood were unpersuasive and showed
25
he was ignorant about forensic evidence. (Id. at pp. 1237-1238.)
None of the reasons given in counsel’s declarations was
consistent with a sound strategy entitled to deference. (Id.
at p. 1239.)
Here, counsel did not fail to investigate potentially
exculpatory evidence. Instead, he took potentially exculpatory
evidence—such as the gun found in Lindsay’s glove compartment
—and ran with it. On the record on direct appeal, we will not say
there was no strategic or tactical reason to argue for acquittal
because Solano was not the shooter. Counsel also argued that
if the jury found he did shoot Lindsay, he either acted in self-
defense or was guilty of a lesser offense.
Because we do not find deficient performance in counsel’s
closing argument, the argument was not ineffective assistance.
5. Sufficient evidence supported the first degree
murder verdict
Solano argues the evidence failed to establish he shot
Lindsay willfully, deliberately, and with premeditation. We
disagree.
To determine whether sufficient evidence supports Solano’s
conviction, we examine the entire record in the light most
favorable to the judgment to determine whether a rational jury
could find Solano guilty beyond a reasonable doubt. (People v.
Flores (2020) 9 Cal.5th 371, 411.) We presume in support of the
judgment every fact the jury could reasonably deduce from the
evidence, and we accept logical inferences the jury might have
drawn from the circumstantial evidence. (Ibid.) Only the fact
finder can determine whether a witness is credible, and we
will not second-guess a jury’s decision to believe a witness with
discrepancies in his or her testimony. (Id. at p. 412, fn. 9.)
26
We strongly disagree that the jury’s verdict was irrational
on the bases Solano argues. He points out there was no
evidence he knew Lindsay was going to come to his home, but
premeditation and deliberation does not require an extended
period of time, or protracted planning. (People v. Bolin (1998)
18 Cal.4th 297, 332; People v. Millwee (1998) 18 Cal.4th 96, 134-
135.) “ ‘ “Premeditation and deliberation can occur in a brief
interval. ‘The test is not time, but reflection. “Thoughts may
follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly.” ’ ” ’ ” (People v. Solomon
(2010) 49 Cal.4th 792, 812.)
When Lindsay arrived at the house, she and Solano had
an intense conversation and she followed him inside. Shortly
after, Lindsay came back outside with Solano walking behind
her. He stood on the porch steps and Lindsay walked to the
sidewalk by the car, telling Ortiz Solano had a gun, and arguing
with Solano. Ortiz walked to the porch steps and urged Solano
to keep things cool, and Solano, seeming under control, told Ortiz
they would talk later. Lizette approached Solano to say goodbye,
and he refused to talk. Lindsay then headed back to the house
saying she wanted to kiss her children, while Lizette and Ortiz
got into the car. Lizette heard a gunshot and saw Solano, in a
shooting stance, pointing a gun at Lindsay and shooting her
two more times as she twirled around to move away. The fatal
gunshot wound was to Lindsay’s back. We do not second-guess
the jury’s decision to believe the witnesses’ testimony. Viewed
in the light most favorable to the verdict, the evidence showed
Solano had enough time to premeditate and deliberate when,
already armed, he followed Lindsay outside, argued with
27
Lindsay, interacted with Ortiz and Lizette, and then shot
Lindsay three times, killing her with a final shot to the back.
6. Cumulative error does not require reversal
Solano argues cumulative error undermined the
fundamental fairness of his trial and requires reversal of
his conviction. As we explain above, there was no error and
therefore no cumulative error.
7. We remand for the trial court to exercise discretion
whether to strike the five-year enhancement
Senate Bill No. 1393, effective January 1, 2019, amended
sections 667, subdivision (a)(1), and 1385, subdivision (b), to
allow the trial court to strike or dismiss a five-year serious felony
enhancement. The court did not have that discretion when it
imposed the five-year enhancement at sentencing. The parties
agree Senate Bill No. 1393 is retroactive. (People v. Zamora
(2019) 35 Cal.App.5th 200, 208.) We remand the case so the
trial court may exercise its newly granted discretion at a hearing
at which Solano is personally present with counsel. We express
no opinion on how the court should rule.
8. Solano should raise any challenge to the fines
and fees on resentencing
The trial court imposed a restitution fine of $300 (§ 1202.4,
subd. (b)), $80 in court security fees (§ 1465.8, subd. (a)(1)), $60
in criminal conviction assessments (Gov. Code, § 70373), and a
$300 restitution fine stayed unless parole is revoked (§ 1202.45).
Solano argues the court should have held a hearing to determine
his ability to pay, citing People v. Dueñas (2019) 30 Cal.App.5th
1157. The California Supreme Court is currently considering
whether a court must consider a defendant’s ability to pay before
28
imposing or executing fines, fees, and assessments. (People v.
Kopp (2019) 38 Cal.App.5th 47, review granted Nov. 13, 2019,
S257844.) Because we remand for further proceedings, we need
not decide whether Solano is entitled to an ability to pay hearing.
Solano should raise any challenge to the fees or fines on remand.
DISPOSITION
The matter is remanded for the court to exercise its
discretion whether to strike the five-year enhancement under
section 667, subdivision (a)(1). In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
EGERTON, J.
We concur:
LAVIN, Acting P. J.
DHANIDINA, J.
29