People v. Banuelos CA4/1

Filed 4/17/23 P. v. Banuelos CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for
purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D080919
Plaintiff and Respondent,
v. (Super. Ct. No. FMB00647-2)
MARIO MONTES BANUELOS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino
County, Rodney A. Cortez, Judge. Affirmed.
James M. Crawford, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa
A. Mandel, Seth M. Friedman and Joseph C. Anagnos, Deputy Attorneys
General, for Plaintiff and Respondent.
A jury found Mario Montes Banuelos guilty of two counts of first degree
murder (Pen. Code, § 187, subd. (a))1 and one count of premeditated
attempted murder (§§ 187, subd. (a), 664, subd. (a)). For the murder counts,
the jury made true findings on special circumstances, including lying in wait
(§ 190.2, subd. (a)(15)), and commission of murder during the course of a
kidnapping (§ 190.2, subd. (a)(17)(B)). For all of the counts, it made true
findings that Banuelos personally used a firearm in the commission of the
offenses (§ 12022.5, subd. (a)). The trial court sentenced Banuelos to two
terms of life without the possibility of parole, an indeterminate term of seven
years to life, and a determinate term of 30 years.
Banuelos contends: (1) the trial court erred in rejecting his objection
that the prosecutor exercised peremptory challenges against prospective
jurors in a discriminatory manner; (2) the jury instruction on conspiracy was
erroneous; (3) the trial court was required to instruct, sua sponte, on (a) self-
defense and defense of another, (b) voluntary manslaughter under a theory of
imperfect self-defense, and (c) involuntary manslaughter; (4) defense counsel
was ineffective for not requesting the jury to be instructed with CALCRIM
No. 522, that provocation can reduce first degree murder to second degree
murder; and (5) insufficient evidence supports the verdict. We conclude that
Banuelos’s arguments lack merit, and we accordingly affirm the judgment.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The murders and attempted murder at issue in this case were
committed in April 1994, when three men were kidnapped, driven into the
desert, shot multiple times, and then left for dead inside a vehicle. One of the
1 Unless otherwise indicated, all further statutory references are to the
Penal Code.
2
victims survived despite multiple gunshot wounds to his back and his neck.
His testimony provided the central evidence against Banuelos at trial.
The surviving victim, T. Munoz, testified that in 1994 he was working
as a driver for a man who sold methamphetamine, P. Cardenas. According to
Munoz, Cardenas supplied methamphetamine to Banuelos’s brother, Noe.
Munoz was personally acquainted with Noe and Banuelos because both of
them were present at certain drug-sale transactions. In April 1994, Noe
owed Cardenas between $60,000 and $90,000.
On April 14, 1994, Noe contacted Munoz and Cardenas to tell them
that he had the money to pay his debt. Munoz, Cardenas, and Munoz’s
brother, J., drove a van to the house in Coachella where Banuelos and Noe
lived. When Munoz and Cardenas knocked on the door, Noe opened it and
told them to wait outside because he was going to change his clothes. While
they waited in the van, Munoz saw two men drive up to the house and go
inside. Noe then invited Munoz and Cardenas to come inside and have a seat
in the living room. J. waited in the van. Shortly thereafter, Noe pulled out a
gun, pointed it at Munoz and Cardenas and told them not to move. As Munoz
attempted to draw his own gun, Banuelos ran into the living room and hit
Munoz in the face with the butt of a rifle. Munoz testified that he is certain
the person who hit him with the rifle was Banuelos.
Next, Noe, Banuelos, and the two men who had earlier entered the
house proceeded to deliver multiple kicks and blows to both Cardenas and
Munoz. After the blows stopped, Munoz’s arms were bound behind his back,
and his eyes and his mouth were covered with tape. Munoz heard Banuelos
state that there was someone else outside in the van, and Munoz’s brother, J.,
was brought inside. Cardenas and J. were bound and restrained in a similar
manner to Munoz.
3
Munoz, Cardenas, and J. were then taken outside and placed into the
back of the van. Inside the van, Munoz heard the voices of Banuelos, Noe,
and a third person whose voice he did not recognize. The van started moving
and was underway for a considerable amount of time. During the drive,
Munoz heard Banuelos tell someone to shoot. Munoz then felt a bullet
hitting his back. A few minutes later he felt a second bullet hit his back and
two bullets hit his left foot. He also heard two other shots that did not hit
him. Likely because of the blood from Munoz’s wounds, the tape binding his
hands became loose, and he was able to free his hands and then lower the
tape covering his eyes.
The van then entered a bumpy dirt road, and Munoz heard two more
shots. Munoz also heard Banuelos saying that the bodies would be stinking
when they were found, followed by laughter. From what he heard during the
incident, Munoz believed that Banuelos was in charge because he was giving
orders.
After approximately 10 minutes on the dirt road, the van came to a
stop, and Munoz heard another vehicle pull up behind the van. Munoz then
felt a hand over his nose and mouth, attempting to suffocate him. A voice
outside of the van said, “Let’s go.” Munoz then heard Noe question someone
about why he hadn’t yet exited the van. Banuelos answered, “I’m suffocating
him, but he won’t die.” Munoz was then shot two times in the back of his
neck. He heard his assailants leave in the other vehicle, and he then lost
consciousness.
Munoz woke up some time later in the van and made his way to the
driver’s seat, where he found the van’s keys in the ignition. Munoz was able
to drive himself to a highway and was pulled over at approximately 2:00 a.m.
on April 15, 1994, by a law enforcement officer.
4
The officer who conducted the traffic stop found Munoz badly beaten
and bloody. The dead bodies of Cardenas and J. were in the back of the van,
with their hands still restrained and tape covering their eyes and mouths.
They had both been shot once in the chest and once in the head.
At the scene, when the law enforcement officer asked Munoz who had
hurt him, Munoz said and wrote down “Noe” and the name of the street in
Coachella where Noe and Banuelos lived.
While speaking with a detective in the hospital three days later, Munoz
identified Banuelos’s first name, “Mario,” as one of the perpetrators. Munoz
subsequently identified Banuelos in a photographic lineup.
Warrants were issued for the arrest of both Banuelos and Noe, but they
fled to Mexico immediately after the shootings. Noe was violently killed in
Mexico in 2018. Banuelos was apprehended in 2019 at a border checkpoint
between Mexico and Arizona.
An information charged Banuelos with the murders of Cardenas and J.
(§ 187, subd. (a)), and the attempted murder of Munoz (§§ 187, subd. (a), 664,
subd. (a)). The information also alleged special circumstances for the murder
counts (§ 190.2, subds. (a)(3), (a)(15), (a)(17)(B)), alleged that the attempted
murder was willful, deliberate and premeditated (§ 664, subd. (a)), and
alleged that for each of the offenses, Banuelos personally used a firearm
(§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)).
At trial, Munoz testified to the facts we have set forth above,
specifically identifying Banuelos as one of the people who kidnapped and shot
him, J., and Cardenas. Banuelos’s defense was based primarily on his own
testimony and that of one of his sisters. Banuelos testified that he was not
involved with drugs, but he suspected that Noe was. Banuelos explained that
he was kidnapped by Munoz and two other men approximately two weeks
5
prior to April 14, 1994, but was able to escape. According to Banuelos, the
kidnappers asked him who he was and what his relation was to Noe. After
the kidnapping, Noe told Banuelos he owed money to some people.
According to Banuelos, on April 14, 1994, he and Noe were in their
living room when they heard a knock on the door. They looked outside and
believed that the kidnappers had returned. Banuelos gathered up the women
and children who lived in the house and told them to get into the bathroom.
According to the testimony of both Banuelos and his sister, Banuelos stayed
in the bathroom with the women and children while Noe dealt with the men
who had knocked on the door. Banuelos and the others stayed in the
bathroom until Noe told them it was safe to come out, stating “they will never
bother us again.” Banuelos testified that he had no involvement in the
kidnapping and shooting of Munoz, J., and Cardenas.
During closing argument, defense counsel argued that the jury should
not believe Munoz’s testimony about what occurred, and that other than
Munoz’s account, there was no evidence that Banuelos was involved in the
shootings.
The jury found Banuelos guilty on all three counts. It made a true
finding on each of the special circumstances, including kidnapping and lying
in wait, found that the attempted murder was willful, deliberate and
premeditated, and found that Banuelos personally used a firearm in
connection with each of the counts.
6
II.
DISCUSSION
A. The Trial Court Did Not Err in Concluding That Defense Counsel
Failed to Make a Prima Facie Case That the Prosecutor Exercised
Peremptory Strikes of Jurors in a Discriminatory Manner
We first consider Banuelos’s contention that the trial court erred in
denying his objection, during jury selection, that the prosecutor was
exercising his peremptory challenges in a discriminatory manner.
1. Applicable Legal Standards
We begin with the applicable legal standards. “Both the state and
federal Constitutions prohibit the use of peremptory strikes to remove
prospective jurors on the basis of group bias.” (People v. Scott (2015)
61 Cal.4th 363, 383 (Scott).) “Excluding by peremptory challenge even ‘a
single juror on the basis of race or ethnicity is an error of constitutional
magnitude.’ ” (People v. Gutierrez (2017) 2 Cal.5th 1150, 1172.)
The “familiar Batson/Wheeler inquiry” governs a trial court’s
evaluation of whether a party impermissibly exercised peremptory challenges
in violation of the state and federal constitutions. (Scott, supra, 61 Cal.4th at
p. 383, citing Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler
(1978) 22 Cal.3d 258.) That inquiry “consists of three distinct steps. First,
the opponent of the strike must make out a prima facie case by showing that
the totality of the relevant facts gives rise to an inference of discriminatory
purpose in the exercise of peremptory challenges. Second, if the prima facie
case has been made, the burden shifts to the proponent of the strike to
explain adequately the basis for excusing the juror by offering permissible,
nondiscriminatory justifications. Third, if the party has offered a
nondiscriminatory reason, the trial court must decide whether the opponent
7
of the strike has proved the ultimate question of purposeful discrimination.”
(Scott, at p. 383.) Absent a prima facie showing, a prosecutor is not required
to offer an explanation for the exercise of a peremptory challenge. (People v.
Panah (2005) 35 Cal.4th 395, 442.) “ ‘[T]here “is a rebuttable presumption
that a peremptory challenge is being exercised properly, and the burden is on
the opposing party to demonstrate impermissible discrimination.” ’ ” (People
v. Armstrong (2019) 6 Cal.5th 735, 766.)
Here, as we will explain, the trial court concluded its inquiry at the
first step when it determined that defense counsel failed to make a prima
facie case. “A prima facie case of racial discrimination in the use of
peremptory challenges is established if the totality of the relevant facts
‘ “gives rise to an inference of discriminatory purpose.” ’ ” (Scott, supra,
61 Cal.4th at p. 384.) “ ‘[I]n the ordinary case . . . to make a prima facie case
after the excusal of only one or two members of a group is very difficult.’ ”
(People v. Clark (2016) 63 Cal.4th 522, 567 (Clark).) However, “[t]he ultimate
issue is not whether there is a pattern of systematic exclusion, but instead
‘ “ ‘whether a particular prospective juror has been challenged because of
group bias.’ ” ’ ” (People v. Battle (2021) 11 Cal.5th 749, 773 (Battle).)
In determining whether a prima facie case has been made, “[c]ertain
types of evidence are especially relevant . . . , including whether the
prosecutor has struck most or all of the members of the venire from an
identified group, whether a party has used a disproportionate number of
strikes against members of that group, whether the party has engaged
prospective jurors of that group in only desultory voir dire, whether the
defendant is a member of that group, and whether the victim is a member of
the group in which the majority of the remaining jurors belong. [Citation.]
We may also consider nondiscriminatory reasons for the challenged strikes
8
that are ‘apparent from and “clearly established” in the record.’ [Citation.]
Yet we may do so only when these reasons ‘necessarily dispel any inference of
bias,’ such that ‘ “there is no longer any suspicion . . . of discrimination in
those strikes.” ’ ” (Battle, supra, 11 Cal.5th at p. 773.)
“Review of a trial court’s denial of a Wheeler/Batson motion is
deferential, examining only whether substantial evidence supports its
conclusions.” (People v. Lenix (2008) 44 Cal.4th 602, 613.)
In his appellate briefing, Banuelos points out that, effective January 1,
2021, the Legislature enacted Code of Civil Procedure section 231.7, which
codifies the principle that “[a] party shall not use a peremptory challenge to
remove a prospective juror on the basis of the prospective juror’s race,
ethnicity, gender, gender identity, sexual orientation, national origin, or
religious affiliation, or the perceived membership of the prospective juror in
any of those groups.” (Code Civ. Proc., § 231.7, subd. (a); Stats. 2020,
ch. 318.) Code of Civil Procedure section 231.7 details a specific procedure
that a trial court must follow in considering a party’s objection to the
discriminatory use of a peremptory challenge. That procedure differs from
the familiar three-step framework described in our Supreme Court’s case law
for considering constitutional challenges, which we have set forth above.
(See, e.g., Scott, supra, 61 Cal.4th at p. 383.) Moreover, the newly-enacted
statute provides that “[a] motion brought under this section shall also be
deemed a sufficient presentation of claims asserting the discriminatory
exclusion of jurors in violation of the United States and California
Constitutions.” (Code Civ. Proc., § 231.7, subd. (d)(1).)
Under Code of Civil Procedure section 231.7, there is no requirement
that the objector first make a prima facie case. Instead, the statute provides
that “upon objection to the exercise of a peremptory challenge pursuant to
9
this section, the party exercising the peremptory challenge shall state the
reasons the peremptory challenge has been exercised. [¶] . . . The court shall
evaluate the reasons given to justify the peremptory challenge in light of the
totality of the circumstances.” (Code Civ. Proc., § 231.7, subds. (c), (d)(1).)
The statute contains other provisions relevant to a trial court’s analysis,
including a listing of 13 presumptively invalid reasons for the exercise of a
peremptory challenge. (Id., § 231.7, subd. (e).) It also provides that “[t]he
denial of an objection made under this section shall be reviewed by the
appellate court de novo, with the trial court’s express factual findings
reviewed for substantial evidence.” (Id., § 231.7, subd. (j).)
Banuelos argues that Code of Civil Procedure section 231.7 applies to
his case based on the retroactivity principle set forth in In re Estrada (1965)
63 Cal.2d 740. “ ‘The Estrada rule rests on an inference that, in the absence
of contrary indications, a legislative body ordinarily intends for ameliorative
changes to the criminal law to extend as broadly as possible, distinguishing
only as necessary between sentences that are final and sentences that are
not.’ ” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308 (Lara),
italics added.) Importantly, however, “[b]ecause the Estrada rule reflects a
presumption about legislative intent, rather than a constitutional command,
the Legislature . . . may choose to modify, limit, or entirely forbid the
retroactive application of ameliorative criminal-law amendments if it so
chooses. Thus, . . . the presumption does not govern when the statute at
issue includes a ‘saving clause’ providing that the amendment should be
applied only prospectively.” (People v. Conley (2016) 63 Cal.4th 646, 656.)
Here, without even reaching the question of whether Code of Civil
Procedure section 231.7 effectuates “ameliorative changes to the criminal
law” presumed to have retroactive application (Lara, supra, 4 Cal.5th at
10
p. 308), we reject Banuelos’s contention that Code of Civil Procedure
section 231.7 applies retroactively to his case because the Legislature clearly
set forth a contrary indication. Subdivision (i) of the statute states, “This
section applies in all jury trials in which jury selection begins on or after
January 1, 2022.” (Code Civ. Proc., § 231.7, subd. (i).) Banuelos’s trial took
place before that date, namely in April 2021.2 Thus, Code of Civil Procedure
section 231.7 does not apply. (See People v. Collins (2021) 60 Cal.App.5th
540, 550, fn. 6 [declining to rely on Code Civ. Proc., § 231.7 to decide the
appeal, noting the statute specifies that it applies only to trials in which jury
selection began on or after January 1, 2022].)
2. Relevant Trial Court Proceedings
2 In an October 3, 2022 letter, filed after the completion of the parties’
appellate briefing, counsel for Banuelos notified us of new authority that he
views as applicable to the issue of whether Code of Civil Procedure section
231.7 applies retroactively to this case. Specifically, counsel brings to our
attention an amendment to section 745, effective January 1, 2023.
Section 745 provides, among other things, that “[t]he state shall not seek or
obtain a criminal conviction or seek, obtain, or impose a sentence on the basis
of race, ethnicity, or national origin,” and it allows a defendant alleging a
violation to file a motion in the trial court or to seek post-conviction relief.
(§ 745, subds. (a), (b).) The amendment that counsel cites in his letter
amended section 745, as of January 1, 2023, to state that it applies to all
cases not yet final on appeal. (Id., subd. (j)(1).) However, counsel’s letter is
puzzling because section 745 has nothing to do with the retroactive
application of Code of Civil Procedure section 231.7 and does not pertain to
the procedures for evaluating objections to the exercise of peremptory
challenges. Moreover, even if section 745 was somehow relevant here, the
amendment that counsel brings to our attention is not material because even
under the former version of section 745 (effective from January 1, 2021 to
December 31, 2022), the statute was prospectively applicable to cases, like
Banuelos’s, “in which judgment has not been entered prior to January 1,
2021.” (Former § 745, subd. (j).)
11
Having discussed the applicable legal principles, we next turn to the
relevant trial court proceedings. During jury selection, defense counsel
raised an objection, stating “I believe there is a pattern here of excluding non-
white people, my client being Mexican.” Defense counsel specifically
identified the prosecutor’s exclusion of (1) prospective juror No. 24, who was
Hispanic; (2) prospective juror No. 37—a “young gentleman with the very
long hair” whose race and ethnicity is not reflected in the record;3 and (3) a
prospective juror, whose juror number was not identified, but whom defense
counsel described as “the African American gentleman, our only African
American gentleman.” Defense counsel stated, “I want to make a record of it
because I think it is a pattern or at least showing itself as a pattern.” When
asked whether he wished to reply, the prosecutor stated that he did not agree
with defense counsel’s assertion but otherwise did not wish to reply unless
the trial court determined that defense counsel made a prima facie showing.
The trial court then overruled the objection, stating, “At this point, I
don’t see that there is a prima facie showing [of] excusals based on race
issues. I’m going to deny the motion . . . .” The trial court explained, “From
what I have observed, I believe that we have a Hispanic woman that is
currently sitting [i]n the box, and the ones that he excluded, honestly, based
on their answers, I would have excluded, too, but it didn’t rise to the level [of]
for cause. I know that [the prosecutor] did ask for one of them. I believe you
3 Banuelos’s appellate brief states that prospective juror No. 37 was a
“Hispanic juror.” However, nothing in the record supports that assertion.
Appellate counsel’s description of prospective juror No. 37 is further suspect
because Banuelos’s appellate briefing twice refers to prospective juror No. 37
as female, although it is clear from comments made in the trial court that the
prospective juror was a “young gentleman.”
12
[prosecutor] had asked for Number 24 to be excused for cause, but from the
get-go, even on his questionnaire, he said he didn’t want to be here.”4
With respect to prospective juror No. 24, the trial court was referring to
the fact that on his questionnaire, he twice wrote “just don’t want to.”
Specifically, he wrote that response to the following questions: (1) “Do you
wish to be excused from jury service for any other reason?” and (2) “If you
wish to have your jury service deferred for any reason (school, vacation,
business trip), please indicate the reason and when you will next be available
to serve.”
On appeal, Banuelos argues that the trial court erred in determining
that defense counsel did not make a prima facie case that the prosecutor
acted with discriminatory intent.
As an initial matter we note that, at trial, defense counsel’s objection
was that the prosecutor was challenging “non-white” jurors. As we have
explained, the record reflects that one of the challenged jurors was Black and
one was Hispanic. The third juror’s race and ethnicity was not reflected in
the record. The most we are able to glean from the record is that he was
“non-white,” as defense counsel placed him in the group of “non-white” jurors
challenged by the prosecutor.
In order to make a prima facie case in a Batson/Wheeler motion,
defense counsel was required to identify a cognizable class that the
prosecutor was targeting with his peremptory challenges. “Prospective jurors
may not be excluded from jury service based solely on the presumption that
they are biased because they are members of an identifiable group
4 The trial court was apparently mistaken about the prosecutor having
challenged prospective juror No. 24 for cause, as the record does not reflect
any such challenge.
13
distinguished on racial, religious, ethnic, or similar grounds.” (People v.
Gutierrez (2002) 28 Cal.4th 1083, 1122, italics added.) “Motions under
Wheeler and Batson protect against the systematic exclusion of distinctive
and protected groups from the jury pool.” (People v. Armstrong (2019)
6 Cal.5th 735, 768, italics added.) Thus, “the moving party[ ] has the burden
of establishing the challenged jurors are members of a cognizable class.”
(Ibid., italics added.)
Defense counsel’s objection that the prosecutor had challenged “non-
white” jurors was insufficient to create a prima facie case for a
Batson/Wheeler motion because “non-white” persons is not a cognizable class.
Specifically, our Supreme Court has expressly rejected the proposition that
“people of color” or “minorities” are cognizable classes for purposes of a
Batson/Wheeler motion. (People v. Davis (2009) 46 Cal.4th 539, 583 [“No
California case has ever recognized ‘people of color’ as a cognizable group.”];
People v. Manibusan (2013) 58 Cal.4th 40, 83 [“Both this court and others
have declined to recognize ‘minority jurors’ as a cognizable group for purposes
of a claim that the prosecution has excused a prospective juror for
discriminatory reasons.”]; see also People v. Neuman (2009) 176 Cal.App.4th
571, 579 [the trial court properly ruled “that ‘people of color’ is not a
cognizable group”].) The category of “non-white” persons, which is simply
another way of saying “people of color,” suffers from the same problem. (See
United States v. Suttiswad (9th Cir. 1982) 696 F.2d 645, 649 [in the context of
addressing the racial composition of grand juries, the court observed that the
proposed category of “non-whites” is not a cognizable or distinctive group
because it “would have no internal cohesion, nor would it be viewed as an
identifiable class by the general population.”].)
14
On appeal, Banuelos ignores the fact that defense counsel objected to
the removal of “non-white” jurors. Instead, he argues that defense counsel
made a prima facie showing that the prosecutor made “subtle efforts . . . to
remove Hispanic jurors,” and “was using peremptories selectively to exclude
Hispanic jurors.” As we will explain, even assuming, without deciding, that
the objection was sufficiently raised in the trial court to be cognizable on
appeal, it lacks merit.
As discussed, the record does not indicate the race or ethnicity of
prospective juror No. 37. As the moving party in a Batson/Wheeler motion, it
was Banuelos’s burden to make a record about the race of the relevant
prospective jurors. (People v. Morris (2003) 107 Cal.App.4th 402, 408
[defendant could not demonstrate error when the record did not indicate the
race of prospective jurors].) The only Hispanic juror shown by the record to
have been peremptorily challenged by the prosecutor is prospective juror
No. 24. To the extent Banuelos is attempting to point to a pattern of
removing Hispanic jurors to create a prima facie case, the exercise of a
peremptory challenge against a single prospective Hispanic juror certainly
does not create a pattern. (Clark, supra, 63 Cal.4th at p. 567 [“ ‘[I]n the
ordinary case . . . to make a prima facie case after the excusal of only one or
two members of a group is very difficult.’ ”].) That is especially the case
where, as here, another Hispanic juror remained on the jury panel.5
Banuelos also attempts to establish a prima facie case of discriminatory
removal of Hispanic jurors by pointing to the fact that the prosecutor asked
5 The trial court specifically memorialized for the record that “[w]hen we
were in chambers . . . the Court did reference a juror that the court believes
that remained on the panel that was Hispanic, and I didn’t have the number
with me at the time, that is juror in Seat 3, Number 44, JUROR NUMBER
44.”
15
prospective juror No. 24 whether he would rely on the interpreter’s
translation for a Spanish-speaking witness, even if he disagreed with the
translation. Banuelos’s brief asserts, in bold font, “Juror 24 was the only
prospective juror to be asked such a question.” (Bolding omitted.) However,
as the People point out, that representation is clearly wrong, as shown by
even a cursory look at the reporter’s transcript. During voir dire, the
prosecutor asked many other venire members the same question after they
identified themselves as being able to speak Spanish, including one
prospective juror who jokingly described himself as “the white guy who
speaks Spanish.” The prosecutor also asked non-Spanish speaking venire
members how they would react to having to rely on a translation. The
prosecutor repeatedly explained to the prospective jurors exactly why he was
asking them about the impact of experiencing witness testimony through an
interpreter: the People’s main witness (i.e., Munoz), was expected to give
extensive testimony, all of which would be in Spanish. Under the
circumstances, there is nothing suspect about the prosecutor’s focus on that
topic during voir dire. Thus, the questioning of prospective juror No. 24
about how he would handle listening to translated Spanish-language
testimony does not qualify as the type of “desultory voir dire” directed toward
a certain group, which might raise an inference of discrimination. (Battle,
supra, 11 Cal.5th at p. 773.) The record simply contains no support for
Banuelos’s contention that the prosecutor’s questioning of venire members
(including prospective juror No. 24) about their ability to rely on an
interpreter’s translation raises an inference that prospective juror No. 24 was
challenged because he is Hispanic.
Further, our Supreme Court has explained that “where the record
reveals ‘obvious race-neutral grounds for the prosecutor’s challenges to the
16
prospective jurors in question,’ those reasons can definitively undermine any
inference of discrimination that an appellate court might otherwise draw
from viewing the statistical pattern of strikes in isolation. [Citations.] Put
differently, when the record of a prospective juror’s voir dire or questionnaire
on its face reveals a race-neutral characteristic that any reasonable
prosecutor trying the case would logically avoid in a juror, the inference that
the prosecutor was motivated by racial discrimination loses force.” (People v.
Rhoades (2019) 8 Cal.5th 393, 431.) Here, the trial court expressly identified
a race-neutral characteristic that any reasonable prosecutor would arguably
want to avoid in a juror. Specifically, prospective juror No. 24 twice stated on
his questionnaire that he “just [didn’t] want to” serve on the jury. For this
reason, too, we conclude that substantial evidence supports the trial court’s
conclusion that defense counsel failed to make a prima facie case that, in
exercising a peremptory strike against prospective juror No. 24, the
prosecutor acted for discriminatory reasons based on Hispanic ethnicity.
B. There Was No Instructional Error as to the Requirement of Unanimity
Regarding the Object of the Conspiracy
We next consider Banuelos’s challenge to the trial court’s instructing of
the jury with CALCRIM No. 416, which instructs on how to determine
whether Banuelos was a member of a conspiracy. “A claim of instructional
error is reviewed de novo.” (People v. Mitchell (2019) 7 Cal.5th 561, 579
(Mitchell).)6
6 Defense counsel did not object to the jury instruction at issue here. In
most circumstances, failure to object to an instruction results in the forfeiture
of an appellate challenge. (Mitchell, supra, 7 Cal.5th at p. 579.) However,
because failure to object to instructional error will not result in forfeiture if
the substantial rights of the defendant are impacted (ibid.), we exercise our
discretion to consider the appellate challenge.
17
At trial, one of the theories of criminal liability relied upon by the
People was that Banuelos participated in a conspiracy to commit kidnapping
and murder. Without objection from defense counsel, the trial court
instructed with CALCRIM No. 416. In relevant part, the jury was instructed:
“The People have presented evidence of a conspiracy. A member
of a conspiracy is criminally responsible for the acts or
statements of any other member of the conspiracy done to help
accomplish the goal of the conspiracy.
“To prove that the defendant was a member of a conspiracy in
this case, the People must prove that:
“1. The defendant intended to agree and did agree with [Noe]
or other two unidentified males to commit Kidnapping and
Murder;
“2. At the time of the agreement, the defendant and one or
more of the other alleged members of the conspiracy intended
that one or more of them would commit Kidnapping and Murder;
“3. The defendant or [Noe] or the other two unidentified males
committed at least one of the following overt acts to accomplish
Kidnapping and Murder:
“a. Armed themselves with firearms
“b. Bound the victims,
“c. Put victims in van,
“d. Drove victims to remote location;
“AND
“4. At least one of these overt acts was committed in
California.
[¶] . . . [¶]
18
“The People contend that the defendant conspired to commit one
of the following crimes: Kidnapping and Murder. You may not
find the defendant guilty under a conspiracy theory unless all of
you agree that the People have proved that the defendant
conspired to commit at least one of these crimes, and you all
agree which crime he conspired to commit.”
Banuelos takes issue with the final sentence set forth above.
Specifically, he argues that instead of stating “You may not find the
defendant guilty under a conspiracy theory unless all of you agree that the
People have proved that the defendant conspired to commit at least one of
these crimes, and you all agree which crime he conspired to commit,” the
sentence should have stated, “You must not find the defendant guilty under a
conspiracy theory unless all of you agree that the People have proved that the
defendant conspired to commit at least one of these crimes, and you all agree
which crime he conspired to commit.”7
Focusing solely on the word “may” in the two-word phrase “may not,”
Banuelos argues that “[t]he use of the word ‘may’ in a jury instruction is
interpreted as permissive, not mandatory.” He argues, “The case law is clear
that when an unanimity instruction is required, it is not an instruction to the
jury about whether or not they may do something. It is mandatory that the
jury unanimously agree on which crime the prosecution actually proved
beyond a reasonable doubt. Providing the jury with a permissive unanimity
jury instruction diluted the prosecution’s burden of proving the appellant
7 The phrase “may not,” as used by the trial court here, is taken verbatim
from CALCRIM No. 416 as approved by the Judicial Council. In contrast, as
Banuelos points out, the Judicial Council chose to use the phrase “must not”
in the general unanimity instructions set forth in CALCRIM Nos. 3500 and
3501, both of which state “[y]ou must not find the defendant guilty unless
. . . .” (Italics added.)
19
committed either target crime or both because it allowed the jury to
essentially disregard the unanimity instruction, given its erroneous
permissive language.” According to Banuelos, in light of the use of the word
“may” in the instruction, the jury “could have divided on which target offense
was intended” or could have “completely ignored” the “permissive”
instruction.
We reject the argument because it overlooks the plain commonsense
meaning of the two-word phrase “may not.” Although the word “may”
standing alone indicates that something is optional and permissive, the two-
word phrase “may not,” as used in this context, indisputably has the same
meaning as “must not.” As case law explains, “[g]enerally speaking, ‘the
word “may” is permissive—you can do it if you want, but you aren’t being
forced to.” (Woolls v. Superior Court (2005) 127 Cal.App.4th 197, 208.)
However “ ‘[m]ay not’ is prohibitory, as opposed to permissive.” (Id. at
p. 209.) Thus, telling the jurors that they “may not” find the defendant guilty
unless they all agree, is the same thing as telling the jurors that they “must
not” find the defendant guilty unless they all agree.8 We therefore find no
merit to Banuelos’s argument that the jury instruction was erroneous
because it used the phrase “may not” rather than “must not.”9
8 Indeed, as the People point out, the phrases “may not” and “must not”
are so interchangeable that the reporter’s transcript reflects that the trial
court used the phrase “must not” rather than “may not” when reading
CALCRIM No. 416 to the jury.
9 Banuelos also appears to argue that CALCRIM No. 416 is flawed
because the unanimity instruction is placed at the end of the instruction and
is “buried underneath all the other instructions.” We reject the argument, as
“[j]urors are presumed able to understand and correlate instructions.”
(People v. Sanchez (2001) 26 Cal.4th 834, 852.)
20
C. The Trial Court Did Not Err in Failing to Sua Sponte Instruct on the
Theories of Self-Defense and Defense of Another
We next turn to Banuelos’s contention that the trial court erred in not
sua sponte instructing on self-defense and defense of another. Banuelos
argues, “[T]he jury could have rejected Banuelos’[s] testimony that he was in
the [bathroom] and could have found he was involved in the confrontation
that led to the underlying charges. Under these circumstances, instructions
on self-defense and defense of others were warranted. . . . Although there
had not yet been an actual physical attack, there was evidence the men [i.e.,
Cardenas, Munoz] were armed and prepared to kill over this drug debt when
they entered the Banuelos’ home. As such, there was substantial evidence to
have warranted the giving of instructions on self-defense and defense of
others.”10 “ ‘[A] claim that a court failed to properly instruct on the
applicable principles of law is reviewed de novo.’ ” (People v. Dearborne
(2019) 34 Cal.App.5th 250, 260.)
The requirements for self-defense and defense of another, in the context
of a homicide trial, are set forth in CALCRIM No. 505, Justifiable Homicide:
Self-Defense or Defense of Another. The requirements include: (1) the
defendant reasonably believed that he or someone else was in imminent
10 Banuelos also argues that even if he was in the bathroom the entire
time, the theory of self-defense and defense of another also applies because
“there was substantial evidence that Noe had killed Cardenas and [J.] and
shot Munoz in an effort to protect Banuelos and the family who were hiding
from these men in the bathroom.” The argument is nonsensical because if
the jury believed that Banuelos was in the bathroom the entire time, there
would be no need for him to rely on the theory of self-defense or defense of
another, as he would be acquitted on the ground that he was not involved in
the crimes.
21
danger of being killed or suffering great bodily injury; (2) the defendant
reasonably believed that the immediate use of deadly force was necessary to
defend against that danger; and (3) the defendant used no more force than
was reasonably necessary to defend against that danger. (CALCRIM
No. 505.) “To satisfy the imminence requirement, ‘[f]ear of future harm—no
matter how great the fear and no matter how great the likelihood of the
harm—will not suffice. The defendant’s fear must be of imminent danger to
life or great bodily injury. “ ‘[T]he peril must appear to the defendant as
immediate and present and not prospective or even in the near future. An
imminent peril is one that, from appearances, must be instantly dealt
with.’ ” ’ ” (People v. Trujeque (2015) 61 Cal.4th 227, 270 (Trujeque), italics
omitted.)
“ ‘A trial court’s duty to instruct, sua sponte, on particular defenses
arises “ ‘only if it appears that the defendant is relying on such a defense, or
if there is substantial evidence supportive of such a defense and the defense
is not inconsistent with the defendant’s theory of the case.’ ” ’ ” (People v.
Martinez (2010) 47 Cal.4th 911, 953 (Martinez).) “[T]o require trial courts to
ferret out all defenses that might possibly be shown by the evidence, even
when inconsistent with the defendant’s theory at trial, would not only place
an undue burden on the trial courts but would also create a potential of
prejudice to the defendant.” (People v. Barton (1995) 12 Cal.4th 186, 197.)
Both self-defense and defense of another fall under this rule. (See People v.
Elize (1999) 71 Cal.App.4th 605, 615 [self-defense]; People v. Randle (2005)
35 Cal.4th 987, 994 [self-defense and defense of another are “related
concepts”].) Applying these principles, the trial court did not have a sua
sponte duty to instruct on self-defense or defense of another.
22
First, with respect to the theories of either self-defense or defense of
another, sua sponte instructions were not required on the basis that the
“ ‘ “ ‘defendant [was] relying on such a defense.’ ” ’ ” (Martinez, supra,47 Cal.4th at p. 953.) As we have explained, the theory of Banuelos’s defense
was that he was not involved, to any extent, in the shootings, not that he
committed the shootings in self-defense or defense of another. Specifically,
Banuelos testified that he was in the bathroom during the entire incident.
Similarly, defense counsel argued that, because Munoz’s testimony was not
credible, the People failed to prove Banuelos was involved in the shootings.
Second, the trial court was not required to instruct on self-defense or
defense of another because there was no “ ‘ “ ‘substantial evidence supportive
of such a defense and the defense [was] . . . inconsistent with the defendant’s
theory of the case.’ ” ’ ” (Martinez, supra, 47 Cal.4th at p. 953.) Substantial
evidence was lacking because self-defense or defense of another are viable
defenses only if the defendant perceived the danger posed by the victim to be
imminent. (CALCRIM No. 505; Trujeque, supra, 61 Cal.4th at p. 270.) Here,
assuming the jurors believed that Banuelos was involved in the shootings
rather than hiding in the bathroom, there would not be substantial evidence
that Banuelos acted in self-defense or defense of another in shooting
Cardenas, Munoz, and J. because, at the time they were shot, Cardenas,
Munoz, and J. were tied up in the back of the van. Persons whose arms are
bound behind them and have tape covering their eyes and mouths do not pose
a danger that is “ ‘ “ ‘immediate and present and not prospective or even in
the near future’ ” ’ ” and that “ ‘ “ ‘must be instantly dealt with.’ ” ’ ”
(Trujeque, at p. 270, italics omitted.) Moreover, instructions on self-defense
and defense of another would have been “ ‘ “ ‘inconsistent with [Banuelos’s]
theory of the case. ’ ” ’ ” (Martinez, at p. 953.) As we have explained, the
23
defense theory was that Banuelos was not involved in the shootings.
Therefore, it would be inconsistent for him to claim that he did commit the
shootings but that he did so to defend himself or another person.
D. The Trial Court Did Not Err in Failing to Sua Sponte Instruct on the
Lesser Included Offense of Voluntary Manslaughter Under a Theory of
Imperfect Self-Defense
In a similar argument, Banuelos contends that the trial court should
have sua sponte instructed that the jury had the option of returning verdicts
of voluntary manslaughter (or attempted voluntary manslaughter for Munoz)
based on the theory of imperfect self-defense.
“An instance of imperfect self-defense occurs when a defendant acts in
the actual but unreasonable belief that he or she is in imminent danger of
great bodily injury or death. [Citation.] Imperfect self-defense differs from
complete self-defense, which requires not only an honest but also a
reasonable belief of the need to defend oneself. [Citation.] It is well
established that imperfect self-defense is not an affirmative defense.
[Citation.] It is instead a shorthand way of describing one form of voluntary
manslaughter. [Citation.] Because imperfect self-defense reduces an
intentional, unlawful killing from murder to voluntary manslaughter by
negating the element of malice, this form of voluntary manslaughter is
considered a lesser and necessarily included offense of murder.” (People v.
Simon (2016) 1 Cal.5th 98, 132 (Simon).)
“A trial court has a sua sponte duty to instruct the jury on a lesser
included uncharged offense if there is substantial evidence that would
absolve the defendant from guilt of the greater, but not the lesser, offense. . . .
Substantial evidence is evidence from which a jury could conclude beyond a
reasonable doubt that the lesser offense was committed. . . . [¶] We review
24
de novo a trial court’s decision not to give an imperfect self-defense
instruction.” (Simon, supra, 1 Cal.5th at pp. 132-133.)
Like the doctrine of self-defense, which we have discussed above,
imperfect self-defense is a viable theory only if the defendant had an
“actual . . . belief that he or she is in imminent danger of great bodily injury
or death.” (Simon, supra, 1 Cal.5th at p. 132, italics added; see also People v.
Butler (2009) 46 Cal.4th 847, 868 [“self-defense . . . , whether perfect or
imperfect, require[s] an actual fear of imminent harm”].) Here, as we have
already explained with respect to the theory of self-defense, there was no
substantial evidence presented at trial that Banuelos could have believed he
was in imminent danger of great bodily injury while committing the
shootings. The victims were all tied up and restrained in the back of the van
and thus posed no immediate threat. Accordingly, the trial court had no sua
sponte duty to instruct on the lesser included offense of voluntary
manslaughter (or attempted voluntary manslaughter) under a theory of
imperfect self-defense.
E. The Trial Court Did Not Err in Failing to Instruct on Involuntary
Manslaughter
Banuelos next contends that the trial court should have instructed on
the lesser included offense of involuntary manslaughter.
Manslaughter is defined by statute as “the unlawful killing of a human
being without malice.” (§ 192, italics added.) Involuntary manslaughter, in
turn, is defined as an unlawful killing “in the commission of an unlawful act,
not amounting to a felony; or in the commission of a lawful act which might
produce death, in an unlawful manner, or without due caution and
circumspection.” (Id., subd. (b).) As we have explained, a trial court must
instruct on all lesser included offenses supported by substantial evidence.
(Simon, supra, 1 Cal.5th at p. 132.)
25
Under the argument heading asserting that an involuntary
manslaughter instruction was required, Banuelos argues, “The evidence was
clear that although deadly force was used resulting in the death of two
individuals, the evidence was murky as to whether that use of deadly force
was done with premeditation and deliberation. . . . Given the fact that the
evidence showed a real possibility of neither Noe nor [Banuelos] having any
intent to kill but rather to defend themselves and each other, had the jury
been instructed on the lesser included offense of involuntary manslaughter, it
is very reasonably likely the jury would have found [Banuelos] did not act
with the required malice aforethought necessary for first-degree murder.
However, the jury was not instructed here.”11
Banuelos presents no coherent argument how any reasonable juror
could have concluded, based on the evidence, that the shootings were
committed without malice to support an instruction on involuntary
manslaughter. (§ 192.) Malice can be either express or implied. (§ 188, subd.
(a).) “Malice is express when there is manifested a deliberate intention to
unlawfully take away the life of a fellow creature.” (Id., subd. (a)(1).)
“[M]alice is implied when the killing resulted from an intentional act, the
natural consequences of which are dangerous to human life, performed with
knowledge of and conscious disregard for the danger to human life.” (People
v. Thomas (2012) 53 Cal.4th 771, 814.) Here, the victims were shot at close
range multiple times—in the torso, neck, and head—while they were tied up
in the back of a van. Most reasonable jurors would conclude that repeatedly
11 In the course of his argument, Banuelos also contends that “the jury
was given an ‘all or nothing’ choice of acquitting Banuelos entirely or
convicting him of first-degree murder.” That is plainly not true. The jurors
were given the option of convicting Banuelos of second degree murder, but
they chose not to do so.
26
shooting someone at close range in the head, neck and torso indicates an
intent to kill, constituting express malice. At a minimum, such a course of
conduct indisputably poses a grave danger to human life constituting implied
malice. (Thomas, at p. 815 [pointing a loaded gun at the victim’s head and
threatening to shoot him “is highly dangerous and exhibits a conscious
disregard for life.”].)12 We therefore reject Banuelos’s contention that the
trial court was required, sua sponte, to instruct on the lesser included offense
of involuntary manslaughter.
F. Banuelos Has Not Established That Defense Counsel Was Ineffective
By Failing to Request an Instruction on Provocation
Banuelos argues that defense counsel was ineffective because he did
not request that the jury be instructed with CALCRIM No. 522 that
provocation may reduce first degree murder to second degree murder.13
We begin with the instruction that Banuelos contends should have been
requested by defense counsel. As relevant here, CALCRIM No. 522 provides:
“Provocation may reduce a murder from first degree to second degree . . . .
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,
12 In his reply brief, Banuelos takes a different approach, arguing that an
instruction on involuntary manslaughter was warranted because the
evidence permitted a finding that he acted in self-defense, defense of another,
or imperfect self-defense. However, those theories either provide a complete
defense (in the case of self-defense or defense of another) or serve to support a
verdict of voluntary manslaughter (in the case of imperfect self-defense).
(People v. Elmore (2014) 59 Cal.4th 121, 133-134.) Thus, they do not support
an instruction on involuntary manslaughter.
13 Provocation that causes a defendant to act in the heat of passion can
also serve to reduce murder to voluntary manslaughter (People v. Beltran
(2013) 56 Cal.4th 935, 942 (Beltran)), but Banuelos does not argue that
counsel should have requested an instruction on that theory.
27
consider the provocation in deciding whether the crime was first or second
degree murder.” As case law explains, “Second degree murder is an unlawful
killing with malice, but without the elements of premeditation and
deliberation which elevate the killing to first degree murder. . . . To reduce a
murder to second degree murder, premeditation and deliberation may be
negated by heat of passion arising from provocation. . . . If the provocation
would not cause an average person to experience deadly passion but it
precludes the defendant from subjectively deliberating or premeditating, the
crime is second degree murder.” (People v. Hernandez (2010) 183 Cal.App.4th
1327, 1332 (Hernandez), citations omitted.) “[A] subjective test applies to
provocation as a basis to reduce malice murder from the first to the second
degree: it inquires whether the defendant in fact committed the act because
he was provoked.” (People v. Jones (2014) 223 Cal.App.4th 995, 1000.) An
instruction that provocation may reduce first degree murder to second degree
murder is a “pinpoint instruction that need not be given on the court’s own
motion.” (People v. Rogers (2006) 39 Cal.4th 826, 880.)
We evaluate Banuelos’s ineffective assistance claim based on well-
settled standards. A criminal defendant is constitutionally entitled to
effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I,
§ 15; Strickland v. Washington (1984) 466 U.S. 668, 684-686; People v. Doolin
(2009) 45 Cal.4th 390, 417.) To establish ineffective assistance, “the
defendant must first show counsel’s performance was deficient, in that it fell
below an objective standard of reasonableness under prevailing professional
norms. Second, the defendant must show resulting prejudice, i.e., a
reasonable probability that, but for counsel’s deficient performance, the
outcome of the proceeding would have been different.” (People v. Mai (2013)
28
57 Cal.4th 986, 1009 (Mai).) “It is defendant’s burden to demonstrate the
inadequacy of trial counsel.” (People v. Lucas (1995) 12 Cal.4th 415, 436.)
“It is particularly difficult to prevail on an appellate claim of ineffective
assistance. On direct appeal, a conviction will be reversed for ineffective
assistance only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission, (2) counsel was
asked for a reason and failed to provide one, or (3) there simply could be no
satisfactory explanation. All other claims of ineffective assistance are more
appropriately resolved in a habeas corpus proceeding.” (Mai, supra,
57 Cal.4th at p. 1009.)
Here, Banuelos has failed to meet his burden on direct appeal to
establish ineffective assistance because defense counsel could have had a
rational tactical purpose for failing to request an instruction on provocation.
Specifically, as we have explained, Banuelos’s defense was based on the
theory that he was not involved in the shootings. An instruction that
Banuelos acted with provocation in shooting the victims would have
conflicted with Banuelos’s defense because it would have suggested to the
jury that Banuelos was in fact a participant in the shootings. Under those
circumstances, counsel could have made a rational tactical decision to forego
the provocation instruction. (See People v. Wader (1993) 5 Cal.4th 610, 643
[the court could not “say that defense counsel had no rational tactical purpose
in not requesting an instruction on intoxication” when it “would have been
inconsistent with defendant’s theory of the case”].)
G. Banuelos’s Challenge to the Sufficiency of the Evidence Lacks Merit
Banuelos’s final contention is that insufficient evidence supports his
convictions on each of the three counts. The argument is premised on the
theory that the only finding a reasonable juror could have made based on the
29
evidence was that Banuelos acted in self-defense, defense of another,
imperfect self-defense, or based on provocation. Specifically, Banuelos sets
forth the following argument: “Here, no rational juror could have found proof
beyond a reasonable doubt that [Banuelos] intended to kill Cardenas and [J.]
unlawfully—that Noe did not shoot Cardenas and [J.] in the actual belief in
the need for self-defense or in defense of the family, whether reasonable or
not, nor in the heat of passion on adequate provocation. And no rational
juror could have found proof beyond a reasonable doubt that [Banuelos]
initiated a chain of events which proximately caused Cardenas’s and [J.’s]
death. [¶] No rational juror could have found proof beyond a reasonable
doubt that Noe did not act in self-defense or in defense of [Banuelos] and
their sisters and children.”
The entirety of Banuelos’s discussion of the evidence in support of his
argument consists of the following: “Cardenas, Munoz and [J.] were the
aggressors; they arrived at the Banuelos[’] [home] armed and intent on
collecting a drug debt. As such, there was insufficient evidence to support
murder convictions and an attempted murder conviction against [Banuelos]
. . . .”
We reject the argument. Here, the evidence certainly did not compel
the conclusion that Banuelos acted in self-defense, defense of another, or
imperfect self-defense. Indeed, as we have discussed above, there is no
substantial evidence to support the theories of self-defense, defense of
another, and imperfect self-defense because there was simply no imminent
threat posed by the victims at the time they were shot. (§§ II.C, II.D, ante.)
Further, to the extent Banuelos is arguing that a verdict of second degree
murder or voluntary manslaughter was compelled by the evidence because he
was provoked to shoot the victims (Hernandez, supra, 183 Cal.App.4th at
30
p. 1332; Beltran, supra, 56 Cal.4th at p. 942), the record certainly does not
support that argument. Munoz testified that the victims were ambushed in
Banuelos’s living room without engaging in any provocatory conduct, and the
jury was entitled to credit that testimony.
DISPOSITION
The judgment is affirmed.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
BUCHANAN, J.
31