People v. Reyes CA4/2

Filed 9/24/20 P. v. Reyes CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent, E071303

v. (Super.Ct.No. INF1702123)

CHRISTOPHER ANDREW REYES, OPINION

Defendant and Appellant.

APPEAL from the Superior Court of Riverside County. W. Charles Morgan* and

Chad W. Firetag, Judges. Affirmed in part, reversed in part with directions.

Victoria H. Stafford, under appointment by the Court of Appeal, for Defendant

and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and Andrew

Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

* Retired Judge of the Riverside Superior Court assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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 I.

INTRODUCTION

Defendant and appellant, Christopher Reyes, appeals from the judgment entered

following jury convictions for attempted premeditated murder (Pen. Code, §§ 187, subd.
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(a), 664, subd. (a) ; count 1), first degree residential burglary (§ 459; count 2), and first

degree robbery (§ 211; count 3). As to counts 1 and 3, the jury found not true

enhancements for personal discharge of a firearm (§§ 12022.53, subd. (c), 1192.7, subd.

(c), (8)). The trial court sentenced defendant to 16 years, plus 7 years to life in prison,

and stayed the 10-year term for defendant’s on-bail enhancements.

Defendant contends there was insufficient evidence to support his convictions for

attempted murder and robbery. He also argues the trial court erred in not instructing the

jury on self-defense and the habitation defense. Defendant further asserts that this case

must be remanded under People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), to

clarify the contradictory restitution fine orders and to hold an ability-to-pay hearing. In

addition, defendant argues he must be awarded one additional day of presentence credit.

We reject defendant’s contentions, with the exception of his objection to the

contradictory restitution fine orders and custody credit error. We accordingly reverse the

trial court’s orders imposing fines and fees, and remand this matter to the trial court with

directions to reconsider the court’s inconsistent orally imposed restitution fines. We also

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Unless otherwise noted, all statutory references are to the Penal Code.

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order the trial court to modify its presentence credits order by adding one additional day

of presentence credit. The judgment is affirmed in all other regards.

II.

FACTS

During the summer of 2017, A.C. worked as a security guard, which required

extensive firearms training. He owned three guns, which included two handguns and a

12-gauge shotgun. One of the handguns was a 9-millimeter (9mm) and the other was a

.40-caliber handgun. A.C. kept the shotgun in his master bedroom closet and his .40-

caliber handgun in the nightstand or attached to a magnet under his desk or table, also in

the master bedroom. He kept his 9mm handgun with a full magazine in the garage,

affixed to a magnet under a table. A.C. denied owning a .45-caliber gun.

On July 9, 2017, when A.C. and his wife, E.C., returned home from dinner, they

noticed lights from two flashlights inside their house, in the front room, which they called

the “craft room.” A.C. parked curbside, by their home on La Playa Street in Coachella.

After seeing the lights from two flashlights inside his home, A.C. opened his

garage door with the remote in his car. While E.C. remained in the parked car, A.C.

entered the garage. Nothing appeared amiss in the garage. A.C. checked his security

screen monitor in the garage and noticed his cameras were not pointed in their normal

direction. A.C. retrieved his handgun from under the table in the garage, pulled the slide,

and went outside, over to the front window to check out the lights inside the craft room.

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A.C. knocked on the front window to see what would happen. The lights went out. A.C.

ran back to the garage, crossing the front of his house and entryway.

A.C. testified that because he was employed as a security guard, he instinctively

entered his house with his loaded gun to find out what was going on inside and to protect

his home. A.C. entered his house through the door from the garage to the laundry room.

He then opened the door from the laundry room to a hallway in his house. Almost

instantaneously, upon A.C. opening the door to the hallway and stepping halfway inside,

A.C. heard more than five gunshots coming from his right side. E.C., who was outside in

the car, testified she heard more than 10 gunshots. A.C. noticed in his peripheral vision,

to the right, a Hispanic man wearing a white t-shirt and shorts, standing in the living

room, halfway outside the sliding door.

A.C. could not remember if he fired his gun or many of the details of the incident

because it happened so fast. He was inside for only seconds. Immediately after hearing

the shots, he fled out to the garage, placed his gun in the bed of his truck in the garage,

and retreated to his car parked on the street. No one followed him outside. A.C. testified

he might have fired a bullet or two but could not remember. He had never been involved

in a shooting before.

When A.C. reached his car on the street, E.C. was calling 911. She made the call

at 9:26 p.m. Upon arrival, sheriff’s deputies cleared the house and began investigating

the incident. During the deputies’ recorded initial entry and clearing of the house, there

could be heard what sounded like fireworks or a loud gunshot. Deputy Glaccum testified

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the deputies found inside A.C.’s home shell casings, bullet holes, and damaged property,

“indicative of a gunfight.” The house appeared to have been ransacked and several items

were missing, including an iPhone, jewelry, a backpack, and $8,000 in cash.

At 10:28 p.m., just over half an hour after law enforcement arrived at A.C.’s

home, law enforcement responded to a 911 call from someone on Arica Drive, three

streets to the east of A.C.’s home. J.S., who lived on Arica Drive, noticed police vehicles

driving by his house. His neighbor said a wounded person had knocked on his door. J.S.

checked his backyard to see if anyone was there. J.S. discovered a Hispanic man inside

J.S.’s storage shed. He appeared to be about 20 years old. J.S. noticed blood on the chest

of the man’s white t-shirt. The man asked for J.S.’s phone. J.S. did not give him his

phone. J.S. told the man he would be okay and went to get help.

When deputies went out to J.S.’s shed, the man was gone. The deputies observed

a blood smear on the shed door, and swabbed the blood. Deputy Glaccum reviewed

J.S.’s neighbor’s surveillance video, which showed a person wearing a white shirt and

dark bottoms walking away from J.S.’s home.

A. Defendant’s Hospitalization

During the night of the shooting incident, M.M. picked up defendant at a house in

Thousand Palms. Defendant was bleeding from a gunshot wound to his right shoulder.

Defendant told M.M. not to take him to the nearest hospital. M.M. complied and took

him to San Gorgonio Hospital in Banning. At the hospital, defendant told Police Officer

Lynn that at midnight, he and his girlfriend and M.M. were driving in M.M.’s car back

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from Thousand Palms. On the way, they stopped at a Chevron station in Moreno Valley.

At the station, defendant got into an argument with a man and punched him. Afterwards,

as defendant walked back to his car, the man shot him in the shoulder. M.M. then drove

defendant to the hospital.

Deputy Garcia also tried to speak to defendant at the hospital but defendant would

not talk to him. Deputy Garcia then investigated the alleged shooting at the Chevron

station and did not find any evidence of such a shooting.

B. Law Enforcement Investigation

Meanwhile, law enforcement investigated A.C.’s home. Deputies discovered the

following evidence: a hand print on the exterior of the master bedroom window, facing

the backyard; 25 casings inside and outside A.C.’s house; one .45-caliber casing in the

laundry room, behind the washing machine; one .45-caliber casing at the entrance to the

craft room; a .223-caliber rifle casing and an Aguila brand 9mm casing in the kitchen

area, under the dining room table, to the right of where A.C. entered the hallway; two

9mm casings in the backyard, including a brass Aguila casing and a silver aluminum

Luger casing; a pair of black, size 9, Nike tennis shoes in the backyard.

The handgun A.C. grabbed from under the table in the garage was loaded with

brass Luger 9mm cartridges. None of the casings found at the crime scene matched the

rounds in A.C.’s 9mm handgun. Law enforcement retrieved A.C.’s 9mm handgun from

the truck bed. It held a maximum capacity of eight rounds, but only had six 9mm brass

Luger rounds in the magazine and one 9mm brass Luger round in the chamber. In the

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garage, the door of A.C.’s gun safe was wide open, with nothing in the safe. A.C.’s

Mossberg shotgun, which he kept in his master bedroom closet, was found in the

backyard. A.C.’s .40-caliber pistol was found in A.C.’s master bedroom, where he had

left it before the incident.

There was a bullet hole just below chest level, in the wall in the entryway leading

from the laundry room to the hallway. There was another bullet hole on the door frame

leading to the laundry room, where A.C. was standing during the shooting. There were

bullet holes in a wall dividing the guest bathroom from the living room, in the hallway

leading to the master bedroom, and in a closet in the guest bedroom. There was a bullet

strike to the wall dividing the kitchen from the bathroom, in which the bullet entered

through the shower tub and exited the wall. The slider in the kitchen was shattered, with

bullet holes in the glass.

Sheriff’s Detective Osegura determined that the perpetrators entered A.C.’s home

through the master bedroom window in the back of the house. The window screen

“protector” had been removed, the window was shattered, and the mini blinds were

damaged when moved to the side. Detective Osegura concluded the shooter was walking

towards the back wall of A.C.’s backyard, while shooting at the area where A.C. had

been standing, in the hallway. Because A.C.’s 9mm handgun had an eight-round

capacity, and there were seven rounds remaining in the gun, Detective Osegura

concluded A.C. might have fired one round during the incident. However, none of the

casings found at the crime site matched the cartridges in A.C.’s 9mm handgun. Detective

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Osegura determined that A.C.’s .40-caliber handgun had not been fired. In addition, he

concluded four separate firearms were fired at A.C., a 9mm gun, a .40-caliber gun, a .45-

caliber gun, and a .223-caliber rifle. Osegura also concluded there might have been more

than one shooter.
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Law enforcement investigators received a Cal ID “fingerprint hit” naming

defendant, based on the fingerprints a forensic technician lifted from the exterior of the

master bedroom window. Also, DNA analysis was conducted of the blood recovered

from J.S.’s shed, where defendant was hiding, and a buccal swab was taken from

defendant. The DNA analysis comparing these two samples showed that defendant’s

DNA profile obtained from the buccal swab showed a “strong match” with the blood on

the shed.

C. The Defense

Defense firearms expert, Lance Martini, testified regarding deficiencies in law

enforcement’s investigation. Martini stated there was no firearm or tool analysis

involving test firing the guns. The photographic documentation of the cartridges and

casings was incomplete. There were no microscopic comparisons of the recovered

cartridge cases and there was no gunshot residue analysis. There were also no forensic

firearms examination reports. Martini further testified that photographs of the bullet hole

in the laundry room door frame and the presence of a .45-caliber casing in the laundry

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California’s computer fingerprint database. (See People v. Johnson (2006) 139
Cal.App.4th 1135, 1152.)

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room established a high probability that a .45-caliber bullet was fired from within the

laundry room.

Martini was unable to determine if the noise recorded during the deputies’ initial

investigation of A.C.’s house was from a gunshot or a firecracker. He also was unable to

determine how many firearms were fired in A.C.’s house. Martini agreed that none of the

casings found in the house matched the cartridges in A.C.’s 9mm gun. Martini believed

the shots were fired by one or more individuals located in A.C.’s home. If any were fired

from outside, toward the house, they might have been directed toward someone standing

at the laundry room entrance.

Defendant’s mother told Detective Osegura defendant recently injured his

shoulder on a fence. At trial, she testified that six months before the shooting incident,

defendant was shot in the back through his lungs and in his leg.

D. Stipulated Timeline

The parties stipulated to the following times of calls and events recorded by law

enforcement:

9:26 p.m. – A.C.’s neighbor called 911

9:26 p.m. – E.C. called 911

9:26 p.m. – A.C. told 911 he was going to enter his house

9:51 and 9:52 p.m. – Deputies announced their presence in the area

9:54 p.m. – Deputies entered A.C.’s neighbor’s home

9:55 p.m. – Deputies entered A.C.’s garage with K-9

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 10:00 p.m. – Deputies began clearing A.C.’s home and backyard

10:28 p.m. – 911 call from someone on Arica Drive, down the street from J.S.

10:29 and 10:30 p.m. – 911 calls from J.S.’s residence on Arica Drive

10:30 p.m. – 911 call from J.S.’s neighbor on Arica Drive

10:38 p.m. – 911 call from another person on Arica Drive, down the street from

J.S.

10:39 p.m. – another 911 call from J.S. on Arica Drive.

II.

SUFFICIENCY OF EVIDENCE

Defendant contends the evidence was insufficient to support his convictions for

attempted murder (count 1) and robbery (count 3).

When reviewing on appeal the sufficiency of evidence supporting a conviction,

this court must consider the evidence presented and all logical inferences from that

evidence in light of the legal definition of the charged crime. “Settled principles of

appellate review require us to review the entire record in the light most favorable to the

judgment below to determine whether it discloses substantial evidence—that is, evidence

which is reasonable, credible, and of solid value—from which a reasonable trier of fact

could find that the defendant” committed the crime beyond a reasonable doubt. (People

v. Perez (1992) 2 Cal.4th 1117, 1124.) “The standard of review is the same in cases such

as this where the People rely primarily on circumstantial evidence. [Citation.]” (Ibid.)

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 “‘Although it is the duty of the jury to acquit a defendant if it finds that

circumstantial evidence is susceptible of two interpretations, one of which suggests guilt

and the other innocence, it is the jury, not the appellate court which must be convinced of

the defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify

the trier of fact’s findings, the opinion of the reviewing court that the circumstances

might also be reasonably reconciled with a contrary finding does not warrant a reversal of

the judgment.’” (People v. Perez, supra, 2 Cal.4th at p. 1124, quoting People v.

Bean (1988) 46 Cal.3d 919, 932-933.)

A. Attempted Murder

We conclude there was sufficient evidence to support defendant’s attempted

murder conviction, as an aider and abettor. An aider and abettor is one who acts “with

knowledge of the criminal purpose of the perpetrator and with an intent or purpose either

of committing, or of encouraging or facilitating commission of, the offense.” (People v.

Beeman (1984) 35 Cal.3d 547, 560; People v. Chiu (2014) 59 Cal.4th 155, 161.) Penal

Code section 31 extends criminal liability as principals in a crime to “‘[a]ll persons

concerned in the commission of a crime,’ . . . whether they directly commit the act

constituting the offense, or aid and abet in its commission.” (§ 31; see People v. Perez

(2005) 35 Cal.4th 1219, 1225; People v. Chiu (2014) 59 Cal.4th 155, 161.) “If the

defendant himself commits the offense, he is guilty as a direct perpetrator. If he assists

another, he is guilty as an aider and abettor. It follows, therefore, that for a defendant to

be found guilty under an aiding and abetting theory, someone other than the defendant

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must be proven to have attempted or committed a crime.” (Ibid.) “Aider and abettor

liability is . . . vicarious . . . in the sense that the aider and abettor is liable for another’s

actions as well as that person’s own actions. (People v. McCoy (2001) 25 Cal.4th 1111,

1118.)

“[A]n aider and abettor’s guilt ‘is based on a combination of the direct

perpetrator’s acts and the aider and abettor’s own acts and own mental state.’ [Citation.]

‘“[O]nce it is proved that ‘the principal has caused an actus reus, the liability of each of

the secondary parties should be assessed according to his own mens rea.’”’ [Citations.]

Thus, proof of aider and abettor liability requires proof in three distinct areas: (a) the

direct perpetrator’s actus reus—a crime committed by the direct perpetrator, (b) the aider

and abettor’s mens rea—knowledge of the direct perpetrator’s unlawful intent and an

intent to assist in achieving those unlawful ends, and (c) the aider and abettor’s actus

reus—conduct by the aider and abettor that in fact assists the achievement of the crime.”

(People v. Perez, supra, 35 Cal.4th at p. 1225.)

“‘Whether defendant aided and abetted the crime is a question of fact, and on

appeal all conflicts in the evidence and reasonable inferences must be resolved in favor of

the judgment.’” (People v. Campbell (1994) 25 Cal.App.4th 402, 409, quoting People v.

Mitchell (1986) 183 Cal.App.3d 325, 329.)

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 1. Attempted Murder Committed by the Direct Perpetrator

Defendant’s conviction for attempted murder as an aider and abettor is founded on

the commission of attempted murder by a cohort. There is overwhelming evidence

supporting such a finding.

“First degree murder, like second degree murder, is the unlawful killing of a

human being with malice aforethought, but has the additional elements of

willfulness, premeditation, and deliberation, which trigger a heightened penalty.

[Citation.] That mental state is uniquely subjective and personal. It requires more than a

showing of intent to kill; the killer must act deliberately, carefully weighing the

considerations for and against a choice to kill before he or she completes the acts that

caused the death.” (People v. Chiu, supra, 59 Cal.4th at p. 166.) “Attempted murder

requires the specific intent to kill and the commission of a direct but ineffectual act

toward accomplishing the intended killing. [Citations.]” (People v. Lee (2003) 331

Cal.4th 613, 623.)

Here, substantial evidence of attempted willful, premeditated and deliberate

murder includes evidence that defendant and his cohorts were alerted to A.C.’s arrival at

A.C.’s home when A.C. opened the garage, went over to the front window, and tapped on

the glass. The inside flashlights were immediately turned off. This evidence shows that

defendant and his cohorts knew that someone saw them inside A.C.’s home.

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 The evidence further supports a reasonable finding that, instead of immediately

fleeing out the back of the house upon being observed, defendant and his cohorts decided

to ambush A.C. as he entered his home. While A.C. ran across the front yard and

entryway, back to the garage, defendant and his cohorts waited for A.C. to enter the

house, silently lying in wait, with guns ready to fire.

The evidence shows that the instant A.C. opened the laundry room door to the

hallway, defendant’s cohorts fired a barrage of bullets at A.C. A.C. testified he saw in

his peripheral vision, to his right, a young Hispanic man wearing a white t-shirt. The

bullets were flying toward A.C. from the area where the man was standing. During the

ambush, over 20 rounds were fired from four guns. One bullet struck a wall just below

chest level, in the entryway leading from the laundry room into the hallway, and another

bullet struck the door frame leading to the laundry room where A.C. had been standing

during the shooting. Evidence of these circumstances provides overwhelming evidence

that, even if defendant did not fire one of the four guns at A.C., defendant’s cohorts

ambushed A.C. in a premeditated attempt to kill him, while defendant was present.

2. Evidence of Aiding and Abetting

There is also substantial evidence that defendant aided and abetted in the

attempted murder of A.C. An aider and abettor who knowingly and intentionally assists a

cohort in attempting to kill someone can “be found to have acted willfully, deliberately,

and with premeditation, having formed his own culpable intent. Such an aider and

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abettor, then, acts with the mens rea required for first degree murder.” (People v. Chiu,

supra, 59 Cal.4th at p. 167.)

Here, there was substantial evidence defendant had knowledge of the criminal

purpose of his cohorts (direct perpetrators) and acted with an intent or purpose either of

committing or encouraging or facilitating the commission of premeditated murder of

A.C. There was also substantial evidence from which a reasonable inference could be

made that A.C. participated in the attempt to kill A.C. Defendant does not contest on

appeal his conviction for first degree burglary. This demonstrates there was sufficient

evidence supporting the jury’s findings that defendant entered A.C.’s home, with intent to

commit larceny or any other felony. (People v. Garcia (2017) 17 Cal.App.5th 211, 223;

see §§ 459, 460, subd. (a).) In addition, during the shooting, A.C. observed from his right

peripheral vision, a young Hispanic man wearing a white t-shirt. A reasonable inference

could be made that this individual was defendant, because a little over 30 minutes after

the shooting, J.S. reported he had found a young Hispanic male wearing a blood-stained

white t-shirt, hiding in J.S.’s shed. After J.S. told the man he was going to get help for

him, the man disappeared. There was additional evidence that late that same evening or

early morning after the shooting, defendant was dropped off at a hospital for treatment of

his gunshot wound. The driver testified defendant told her not to take him to a local

hospital. From this evidence, a reasonable inference could be made that defendant was

shot during the shooting at A.C.’s home, fled, and did not want to go to a local hospital

because he did not want to be associated with the shooting incident.

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 Evidence of defendant’s presence during the ambush also includes his handprint

on the exterior of the master bedroom window at the back of the house and DNA

evidence showing that his blood was on J.S.’s shed. Also, defendant lied to the police at

the hospital as to the cause of his injury. In addition, there is evidence that, either A.C.

fired one round from his 9mm, striking defendant or, alternatively, defendant was struck

by cross-fire from a cohort during the ambush. Either way, there is overwhelming

evidence defendant was present during the shooting, fled, and lied about his gunshot

wound.

As defendant correctly notes, generally, “neither presence at the scene of a crime

nor knowledge of, but failure to prevent it, is sufficient to establish aiding and abetting its

commission.” (People v. Campbell, supra, 25 Cal.App.4th at p. 409.) However, in

making the determination of aiding and abetting, this court may consider, among other

factors, the defendant’s “‘presence at the scene of the crime, companionship, and conduct

before and after the offense.’” (Id. at p. 409, quoting In re Lynette G. (1976) 54

Cal.App.3d 1087, 1094.) In addition to overwhelming evidence defendant was present

during the ambush, there is evidence he was at A.C.’s home, uninvited, participating in

the burglary and attempted murder. Rather than fleeing upon being caught committing

burglary, A.C. remained in the house with his cohorts while they ambushed A.C. After

A.C. ran out of the house, defendant fled, hid in a shed until discovered, and fled from the

shed when discovered there. He then got a ride to a hospital, and lied to the police at the

hospital about the cause of his gunshot wound, showing consciousness of guilt. (People

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v. Edwards (1992) 8 Cal.App.4th 1092, 1102 [“It is well established that pretrial false

statements by a defendant may be admitted to support an inference of consciousness of

guilt by the defendant.”].)

We conclude evidence of defendant’s presence at the crime scene, companionship

with the perpetrators of the ambush, participation in the burglary, remaining at the crime

scene until after the shooting, and lying about his gunshot wound provides more than

ample evidence of defendant’s knowledge of his cohorts’ unlawful intent to commit

premeditated murder and defendant’s intent to assist in the crime.

Defendant argues that the evidence, at most, only shows he intended to commit

burglary and he did not fire a gun at A.C. The jury found not true the enhancements for

personal discharge of a firearm (§§ 12022.53, subd. (c), 1192.7, subd. (c), (8)). This

suggests the jury concluded there was insufficient evidence that defendant fired one of

the four guns. Even assuming defendant did not fire a gun, there was substantial

evidence of his knowledge of his cohorts’ intent to ambush and kill A.C., and defendant’s

intent to assist in doing so. Rather than fleeing after A.C. alerted defendant and his

cohorts that they had been observed inside A.C.’s home, defendant remained with his

cohorts inside A.C.’s home, lying in wait to ambush A.C. Viewing the evidence most

favorably to the judgment, we conclude the evidence was more than sufficient to support

defendant’s conviction for attempted premeditated and deliberate murder, as an aider and

abettor.

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 B. Robbery

Defendant argues there was insufficient evidence supporting defendant’s robbery

conviction. We disagree.

“‘Robbery is the taking of “personal property in the possession of another against

the will and from the person or immediate presence of that person accomplished by

means of force or fear and with the specific intent permanently to deprive such person of

such property.” [Citation.]’ [Citations.]” (People v. Clark (2011) 52 Cal.4th 856, 943.)

The elements of robbery are thus: “(1) defendant took property that was not his own; (2)

the property was in the possession of another person; (3) the property was taken from the

other person or his or her immediate presence; (4) the property was taken against that

person’s will; and (5) the defendant used force or fear to take the property or to prevent

the person from resisting.” (People v. Merritt (2017) 2 Cal.5th 819, 824; see Pen. Code,

§ 211.)

“Although the evidence is circumstantial, the intent required for robbery and

burglary is seldom established with direct evidence but instead is usually inferred from

all the facts and circumstances surrounding the crime.” (People v. Lewis (2001) 25

Cal.4th 610, 643; see § 29.2, subd. (a).) Robbery occurs “whether a perpetrator relies on

force or fear to gain possession or to maintain possession against a victim who

encounters him for the first time as he carries away the loot.” (People v. Gomez (2008)

43 Cal.4th 249, 265, italics added.) “[S]everal appellate courts have affirmed robbery

convictions on the grounds that what began with larceny ripened into robbery due to the

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defendant’s use of force or fear to maintain possession of the property.” (People v.

Hodges (2013) 213 Cal.App.4th 531, 540.)

First, substantial evidence supported the inference that a taking occurred.

Defendant does not contest his conviction for first degree burglary, from which it can be

inferred there was sufficient evidence to support the jury’s finding defendant entered

A.C.’s home with his cohorts with intent to steal property from A.C.’s home. A.C. and

E.C. testified that, when they entered their home after the shooting incident, their house

appeared to have been ransacked and several items were missing, including an iPhone,

jewelry, backpack, and $8,000 in cash. A reasonable inference could be made that either

defendant or his cohorts took the items when they fled after the shooting. Before the

shooting, A.C. saw two flashlights in the craft room, from which it could be reasonably

inferred that defendant and his companions were searching for items to steal.

Second, substantial evidence supports the inference that defendant, along with his

cohorts, formed the intent to steal from A.C. before, rather than after, they used force

against A.C. (People v. Clark, supra, 52 Cal.4th at p. 945; People v. Marshall (1997)

15 Cal.4th 1, 34 [requisite intent to steal must arise before or during the act of force].)

Evidence of this element was established by evidence that, when A.C. knocked on the

craft room window, A.C. alerted the burglars that he had seen them in his house.

Defendant and or his cohorts immediately turned off their flashlights, demonstrating they

were aware they had been spotted inside. Rather than, at that point, fleeing with their

loot from A.C.’s house, without using force, they elected to wait for A.C. to enter his

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home, lying in wait with intent to shoot A.C. and then flee with the stolen property.

Defendant waited with his cohorts, demonstrating his own intent to participate in, and

support his cohorts in shooting A.C. and then fleeing with the stolen property.

The evidence shows that as defendant’s cohorts ambushed A.C., defendant stood

nearby, aiding and abetting his cohorts, while they used deadly force against A.C.,

forcing him to leave his home, in fear for his life. The evidence further shows that, after

A.C. and his cohorts forced A.C. to retreat, they fled with the stolen property. Although

there is no direct evidence defendant took any of the stolen property, there was ample

evidence that he knowingly and willingly participated in the robbery, as well as the

attempted murder, as an aider and abettor.

III.

INSTRUCTIONAL ERROR

Defendant contends the trial court abused its discretion by refusing defendant’s

request to instruct on self-defense (CALCRIM 505) and defense of habitation

(CALCRIM 506). Defendant argues instructions on self-defense and defense of

habitation were necessary for the jury to evaluate whether A.C. lawfully entered his home

with his gun drawn. Defendant argues there was substantial evidence A.C. acted

unlawfully when he entered his home with his gun drawn and, therefore, the burglars

were entitled to exercise self-defense and shoot at A.C.

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 A trial court must instruct on all defenses which are supported by the evidence and

are not inconsistent with the defendant’s theory of the case. (People v. Baker (1999) 74

Cal.App.4th 243, 252; People v. Brooks (2017) 3 Cal.5th 1, 73.) “‘“It is settled that in

criminal cases, even in the absence of a request, a trial court must instruct on general

principles of law relevant to the issues raised by the evidence”’ and ‘“necessary for the

jury’s understanding of the case.”’ [Citations.] It is also well settled that this duty to

instruct extends to defenses ‘if it appears . . . 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.’ [Citations.]” (People v. Brooks,

supra, at p. 73.) “When assessing the sufficiency of evidence to warrant an instruction,

we do not evaluate the credibility of witnesses, a task for the jury.” (People v. Baker,

supra, at p. 252.)

Before jury deliberations, defendant requested the trial court to give CALCRIM

505 on self-defense and CALCRIM 506, as modified, on defense of habitation. Defense

counsel argued that modified CALCRIM 506 was necessary to explain to the jury the law

applicable when a homeowner uses deadly force against a home intruder. The proposed

modified CALCRIM 506 instruction is based on CALCRIM 506, with the word,

“homeowner” substituted in place of the word, “defendant.” Defense counsel also added

the last paragraph of the instruction to state that a defendant has a right to self-defense
3
when a homeowner’s attempt to kill an intruder is unjustified.

3
Defendant’s proposed modified CALCRIM 506 instruction states:
[footnote continued on next page]

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 Defense counsel argued CALCRIM 506 was necessary because of the rebuttable

presumption that a resident fears imminent death or great bodily injury during a home

invasion. This presumption is stated in CALCRIM 3477. The prosecutor argued the

defendant’s proposed instructions were unnecessary and would confuse the jury. The

trial court rejected CALCRIM 506 and 3477 on the grounds the burglary and robbery

were continuing crimes and the facts did not support the instructions. The trial court

added that it would not give the presumption instruction, CALCRIM 3477, because it did

“A homeowner may kill or attempt to kill to defend himself or any other person in
the homeowner’s home. Such a killing is justified, and therefore not unlawful, if: 1. The
homeowner reasonably believed that he was defending a home against an intruder who
violently, [or] riotously, [or] tumultuously tried to enter that home intending to commit
an act of violence against someone inside; 2. The homeowner reasonably believed that
the danger was imminent; 3. The homeowner reasonably believed that the use of deadly
force was necessary to defend against the danger; AND 4. The homeowner used no more
force than was reasonably necessary to defend against the danger.
“Belief in future harm is not sufficient, no matter how great or how likely the harm
is believed to be. The homeowner must have believed there was imminent danger of
violence to himself [or] someone else. [The] homeowner’s belief must have been
reasonable and he must have acted only because of that belief. The homeowner is only
entitled to use that amount of force that a reasonable person would believe is necessary in
the same situation. If the homeowner used more force than was reasonable, then the
killing or attempted killing was not justified.
“When deciding whether the homeowner’s beliefs were reasonable, consider all
the circumstances as they were known to and appeared to the homeowner and consider
what a reasonable person in a similar situation with similar knowledge would have
believed. If the homeowner’s beliefs were reasonable, the danger does not need to have
actually existed.
“A homeowner is not required to retreat. He is entitled to stand his ground and
defend himself and, if reasonably necessary, to pursue an assailant until the danger of
death or bodily injury has passed. This is so even if safety could have been achieved by
retreating.
“The People have the burden of proving beyond a reasonable doubt that the
attempted killing was not justified. If the People have not met this burden, you must find
the Defendant acted in self-defense you must find the defendant not guilty of attempted
murder [or] manslaughter.” (Italics added.)

22
not fit the circumstances of the instant case, and it did not matter whether A.C. or

defendant and his cohorts fired first because the evidence showed that there was a barrage

of gunfire against A.C.

1. Self-Defense

“Traditional self-defense applies where the defendant believes he or she is facing

an imminent and unlawful threat of death or great bodily injury, and believes the acts

which cause [or attempt to cause] the victim’s death are necessary to avert the threat, and

these beliefs are objectively reasonable.” (People v. Curtis (1994) 30 Cal.App.4th 1337,

1357.)

Defendant contends that the trial court should have given CALCRIM 505 (self-

defense) and modified CALCRIM 506 (defense of habitation), because A.C. entered his

own home with his gun drawn. Defendant argues that A.C. stormed into his house,

playing “the role of vigilante,” with “weapons trained on the intruders.” While this is a

colorful and dramatic version of the incident, there is very little, if any, evidence to

support such facts. There was little, if any, evidence that A.C. unlawfully entered his

own home, using excessive, unjustified force. Defendant argues A.C. did not have the

right to enter his home with a loaded gun and fire it at defendant and his cohorts. But the

unrefuted evidence shows A.C. lawfully entered his home with his gun drawn for self-

protection, with the knowledge the burglars might still be in his home. While it might

have been more prudent to call the police, A.C. had the right to enter his own home, and

it was not unreasonable or unlawful for him to retrieve his gun for protection, since he

23
had just observed burglars in his home and was a security guard with extensive training

in using a gun.

Furthermore, there is no evidence that defendant reasonably acted in self-defense

when A.C. entered his home. Rather, substantial evidence showed that defendant and his

cohorts were lying in wait for A.C. to enter his home, and when A.C. entered, they fired a

barrage of bullets toward him, causing A.C. to quickly retreat from his home. While

there was evidence A.C. may have fired a single round during the ambush, there was

little, if any, evidence A.C. was unjustified in doing so, or that A.C. unlawfully initiated

the exchange of gunfire, or that defendant and his cohorts were justified in firing 23

rounds at A.C., from four guns. Regardless of whether A.C. fired first, fired a return

gunshot, or fired at all, there is little, if any, evidence that defendant and his cohorts acted

in reasonable self-defense, out of fear of imminent bodily injury, when they sprayed A.C.

with bullets.

In addition, defendant and his cohorts set in motion the events leading to the

shooting. Because they were responsible for creating the dangerous circumstances

leading to the shooting incident, they cannot rely on self-defense. (People v. Randle

(2005) 35 Cal.4th 987, 1001 (Randle).) Defendant and his cohorts unlawfully entered

and burglarized A.C.’s home, and when A.C. alerted them to having been seen in his

home, defendant and his cohorts remained in A.C.’s home, and ambushed him when he

entered his home. (People v. Curtis, supra, 30 Cal.App.4th at p. 1357.)

24
 “It is well established that the ordinary self-defense doctrine—applicable when a

defendant reasonably believes that his safety is endangered—may not be invoked by a

defendant who, through his own wrongful conduct (e.g., the initiation of a physical

assault or the commission of a felony), has created circumstances under which his

adversary’s attack or pursuit is legally justified. [Citations.]” (In re Christian S. (1994) 7

Cal.4th 768, 773, fn. 1.) A.C.’s entry into his home, with his gun drawn, not knowing if

the burglars were still in his home, was legally justified. It was undisputed defendant and

his cohorts set in motion these circumstances leading to the shooting incident. Therefore,

the trial court did not abuse its discretion in rejecting defendant’s self-defense instruction.

Defendant responds that, regardless, when there is no legal justification for the

victim’s attack, a defendant is entitled to defend himself and others. (Randle, supra, 35

Cal.4th at p. 1002.) But there was no evidence that A.C. was unjustified in lawfully

entering his home with his gun draw for protection. There was also little, if any,

evidence that A.C. was the aggressor who initiated the shooting incident. It is unlikely he

would have initiated a gun battle since he was alone and he would have reasonably

believed there might have been at least two burglars inside. Furthermore, the evidence

shows that defendant’s cohorts immediately fired at A.C. when he entered. It can be

reasonably inferred they were lying in wait for A.C. to enter, and had prepared to ambush

him. Under these circumstances, in which there was little, if any, evidence of justified

self-defense and overwhelming evidence demonstrating that defendant and his cohorts

25
ambushed A.C., there was no abuse of discretion in the trial court not giving a self-

defense instruction.

2. Defense of Habitation

We conclude the trial court did not abuse its discretion by rejecting defendant’s

modified version of CALCRIM 506. As discussed above, there is no evidence A.C.

unlawfully entered his house with his gun drawn, after observing burglars inside his

home. There also was little, if any, evidence A.C. was the aggressor when he entered his

home and was immediately sprayed with bullets from four guns and at least 23 rounds.

The defense of habitation instruction, CALCRIM 506, is intended to be used by a

defendant claiming the right of protection of his own home and those in his home, not by

a home intruder, such as defendant. CALCRIM 506 and the self-defense instruction,

CALCRIM 505, are founded on subdivision (2) of section 197, which provides that

homicide is justifiable when committed by someone “in defense of habitation, property,

or person, against one who manifestly intends or endeavors, by violence or surprise, to

commit a felony, or against one who manifestly intends and endeavors, in a violent,

riotous, or tumultuous manner, to enter the habitation of another for the purpose of

offering violence to any person therein.” (§ 197, subd. (2).) Subdivision (2) of section

197, clarifies that defense of one’s home is not, alone, sufficient to justify intentional use

of deadly force. (People v. Curtis, supra, 30 Cal.App.4th at p. 1360.) There must also be

a showing that the homeowner acted in self-defense or in defense of another, with a

26
reasonable belief the intruder intended to kill or inflict serious injury on someone in the

home. (Ibid.)

Section 198.5, known as the “Home Protection Bill of Rights, . . . provides in

pertinent part: ‘Any person using force intended or likely to cause death or great bodily

injury within his or her residence shall be presumed to have held a reasonable fear of

imminent peril of death or great bodily injury to self, family, or a member of the

household when that force is used against another person, not a member of the family or

household, who unlawfully and forcibly enters or has unlawfully and forcibly entered the

residence and the person using the force knew or had reason to believe that an unlawful

and forcible entry occurred.’” (See People v. Hardin (2000) 85 Cal.App.4th 625, 633.)

Section 198.5 creates a rebuttable presumption that a homeowner inside his home

has a reasonable fear of death or great bodily injury when the homeowner uses deadly

force against an unlawful and forcible home intruder. (People v. Brown (1992) 6

Cal.App.4th 1489, 1494; People v. Hardin, supra, 85 Cal.App.4th at p. 633.) Section

198.5 “was enacted ‘to permit residential occupants to defend themselves from intruders

without fear of legal repercussions, to give “the benefit of the doubt in such cases to the

resident, establishing a presumption that the very act of forcible entry entails a threat to

the life and limb of the homeowner.” [Citation.]’” (People v. Hardin, supra, at p. 633,

quoting People v. Owen (1991) 226 Cal.App.3d 996, 1005.)

27
 “For section 198.5 to apply, four elements must be met. There must be [1] an

unlawful and forcible entry into a residence; [2] the entry must be by someone who is not

a member of the family or the household; [3] the residential occupant must have used

‘deadly’ force (as defined in § 198.5) against the victim within the residence; and [4]

finally, the residential occupant must have had knowledge of the unlawful and forcible

entry.” (People v. Brown, supra, 6 Cal.App.4th at pp. 1494-1495; see CALCRIM 3477.)

Neither the proposed defense of habitation instruction, modified CALCRIM 506,

nor CALCRIM 3477, which describes the rebuttable presumption of a homeowner

fearing harm by a home intruder, is relevant because defendant and his cohorts were

home intruders, not homeowners. (People v. Silvey (1997) 58 Cal.App.4th 1320, 1327.)

Defense counsel proposed changing the wording of the instructions to apply to A.C. as

the homeowner, but there was insufficient evidence to support the instructions, even as

modified. Furthermore, CALCRIM 506 would have likely confused the jury, because

defendant was not defending his own residence and A.C.’s entrance into his own home

with his gun drawn was not unlawful.

Defendant argues there was evidence supporting his proposed modified defense of

habitation instruction. Such evidence, he argues, included evidence A.C. could not have

possibly believed the burglars intended to kill or inflict serious injury on anyone in his

home, because no one was home during the burglary. Also, A.C. could not have

reasonably believed he was in imminent danger, because initially A.C. was outside and

not in danger when he discovered the burglary in progress. Therefore A.C.’s use of force

28
against defendant and his cohorts was unnecessary and unjustified. A.C. could have

called the police and avoided using force. However, substantial evidence shows that

A.C. had the lawful right to enter his home, carrying a gun for protection, and once

inside, he reasonably believed he was in imminent danger. He had seen intruders in his

home and then, upon lawfully entering his home, he saw defendant in his home and was

immediately ambushed with a barrage of bullets. We thus conclude the defense of

habitation instruction, CALCRIM 506, even as modified, was unsupported by substantial

evidence. Therefore the trial court did not abuse its discretion by rejecting it.

Defendant’s reliance on People v. Watie (2002) 100 Cal.App.4th 866, 878 (Watie),

in support of the defense of habitation instruction, is misplaced. In Watie, the defendant

shot his stepfather, James Lee, through a locked front porch screen security door,

believing Lee was about to shoot him. (Id. at p. 874.) During the trial, the court

instructed the jury on the defense of habitation and self-defense. On appeal, the

defendant objected to the instructions on the ground they allowed the jurors to presume

Lee was acting in lawful defense of his property, thereby eliminating defendant’s theory

of self-defense. (Id. at p. 876.) The Watie court disagreed, holding that “the right of a

victim to defend himself and his property is a relevant consideration in determining

whether a defendant may prevail when he seeks to negate malice aforethought by

asserting the affirmative defense of imperfect self-defense.” (Id. at p. 878.)

29
 The Watie court explained that “Here, the jury was confronted with the question of

whether defendant’s use of deadly force was justified as he confronted Lee on the front

porch of Lee’s home and whether defendant’s unlawful conduct created the

circumstances that legally justified Lee’s use of force. If Lee had a right to use force to

defend himself in his home, then defendant had no right of self-defense, imperfect, or

otherwise. The court’s instructions on Lee’s rights and defendant’s right to turn to deadly

force correctly stated the law.” (Watie, supra, 100 Cal.App.4th at p. 878.)

Unlike in Watie, in the instant case, defendant objects to the trial court not giving

the defense of habitation and self-defense instructions. The court in Watie, concluded the

instructions were proper based on factual circumstances quite different from those in the

instant case. In Watie, there was evidence that the victim had told the defendant to leave,

threatened to “‘whip his ass,’” appeared to grab a rifle, and pointed the rifle at the

defendant, at which point the defendant grabbed a gun from his back pocket and fired at

the victim. Also, the defendant testified he believed Lee was going to kill him. (Watie,

supra, 100 Cal.App.4th at p. 873.)

In addition, unlike in the instant case, the defendant was outside the victim’s

home, on the other side of a locked screen security door and had been arguing with the

victim. The defendant was not unlawfully inside the victim’s home, was not threatening

to enter through the locked security door, and was not committing a burglary or felony

with other cohorts inside the victim’s home. Nor was there any evidence the defendant

ambushed the homeowner victim. Although the court in Watie held there was sufficient

30
evidence to support defendant’s proposed defense of habitation instruction, in the instant

case the trial court reasonably rejected the instruction as unsupported by the evidence. In

turn, there was insufficient evidence defendant had a right to self-defense.

Randle, supra, 35 Cal.4th 987, cited by defendant, is also not on point. In Randle,

the defendant and an accomplice burglarized a car. A relative of the car owner caught the

thieves in the act. The relative and the car owner chased them down and seriously beat

the accomplice. The defendant shot the relative and was convicted of second degree

murder. (Id. at pp. 991-992.) The Randle court held that, although the defendant set in

motion a series of events leading to the defendant shooting the relative, the defendant’s

retreat and the relative’s recovery of the stolen equipment from the defendant’s

accomplice “extinguished the legal justification” for the relative attacking the

accomplice. (Id. at p. 1002.) The court in Randle, concluded the relative took the law

into his own hands by beating the accomplice and used more force than was justified.

Therefore the defendant was entitled to argue imperfect defense of others. (Id. at pp.

1002-1003.)

The instant case is distinguishable in that there was no evidence defendant and his

cohorts retreated or that A.C.’s act of entering his home with his gun drawn was

unjustified. On the other hand, there is overwhelming evidence that, after A.C. alerted

them that he saw them inside, defendant and his cohorts elected to remain inside A.C.’s

home, instead of leaving, and waited for A.C. to enter his home, whereupon they

ambushed him with a barrage of bullets, forcing A.C. to retreat from his home.

31
Therefore, unlike in Randle, defendant set in motion the circumstance leading to the

shooting, and there was insufficient evidence to support instructions on the theories of

self-defense and defense of habitation.

IV.

IMPOSITION OF FINES AND FEES

During sentencing in September 2018, the trial court imposed a $300 restitution

fine (§ 1202.4, subd. (b)), a stayed $300 parole revocation fine (§ 1202.45), a $120 court

operations assessment fee ($40 per count conviction; § 1465.8, subd. (a)), and a $90

criminal conviction assessment fee ($30 per count conviction; Gov. Code, § 70373). The

court reserved jurisdiction over victim restitution. After discussing defendant’s credits,

the court told defendant: “I don’t think I stated this yet, but I’m going to also order that

you pay a restitution fine in the amount of $5,000 pursuant to 1202.4 and an additional

parole revocation restitution fine in the amount of $5,000. That fine is suspended unless

parole is revoked.” There was no mention of defendant’s ability to pay the court-ordered

fines and fees, and defendant did not object to them.

Defendant contends, and the People agree, the trial court’s order imposing a

restitution fine under section 1202.4 is ambiguous because the court initially ordered a

$300 restitution fine and stayed $300 parole revocation restitution fine (§ 1202.45).

Then, a few minutes later, the court ordered defendant to pay a $5,000 restitution fine and

a stayed, $5,000 parole revocation restitution fine, apparently not realizing it had already

ordered a $300 restitution fine and $300 parole revocation restitution fine. Defendant

32
also contends the trial court order imposing fines and fees, without determining his ability

to pay them, violated his constitutional right to due process under Dueñas, supra, 30

Cal.App.5th 1157. Defendant asserts that this court should remand this matter to the trial

court for an ability-to-pay hearing to determine whether defendant has the ability to pay

the court-ordered fines and fees.

As to defendant’s contention the trial court’s orders imposing restitution fines are

ambiguous and contradictory, we agree. The trial court inadvertently ordered these fines

twice, without realizing when making the second order that the court had already ordered

the fines in a different amount. Even though the minute order and abstract of judgment

state the fines were $5,000, it is unclear from the reporter’s transcript of the sentencing

hearing and the trial court’s contradictory oral orders, as to whether the trial court

intended to order $300 or $5,000 restitution and parole revocation restitution fines.

(People v. Zackery (2007) 147 Cal.App.4th 380, 385 [“Where there is a discrepancy

between the oral pronouncement of judgment and the minute order or the abstract of

judgment, the oral pronouncement controls.”].) Because of the inconsistency and

ambiguity in the oral pronouncement of the restitution and parole revocation restitution

fines, the fines and fees order is reversed to allow the trial court to reconsider and clarify

its contradictory oral pronouncement of the court-ordered fines.

33
 We need not address defendant’s Dueñas challenge, because this case is being

remanded for reconsideration of the court-ordered fines. During the resentencing hearing

on the fines and fees, the trial court will have the opportunity to address defendant’s

Dueñas challenge.

V.

PRESENTENCE CREDITS

Defendant requests this court to correct the trial court’s award of presentence

credits. The People agree this should be done. Defendant was in custody from

November 30, 2017, until sentencing on September 7, 2018, for a total of 282 days.

However, the trial court erroneously awarded defendant only 281 actual days of credit.

(§ 2900.5, subd. (a); In re Watson (1977) 19 Cal.3d 646, 653-653.) Defendant therefore

should be awarded one additional day of presentence credit, for a total of actual credits of

282 days. Defendant was awarded 42 days of section 2933.1 worktime credits. His total

credits should therefore be 324 days, instead 323 days ordered by the trial court.

VI.

DISPOSITION

We reverse the trial court’s orders imposing fines and fees, and remand the case to

the trial court with directions to reconsider the court’s inconsistent orally imposed

restitution and stayed parole revocation restitution fines. We urge the trial court, when

reconsidering the restitution fines, to consider Dueñas, supra, 30 Cal.App.5th 1157, as

applied to defendant’s fines and fees.

34
 We also order the trial court to modify its presentence credits order to add one

additional day of presentence credit, for a total of 282 days of actual credits and 324 days

of total presentence credits.

The judgment is affirmed in all other regards.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON
J.

We concur:

MILLER
Acting P. J.

FIELDS
J.

35