Filed 10/26/20 P. v. Lopez CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B302240
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA111011)
v.
JUAN ENRIQUE LOPEZ,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Steven D. Blades, Judge. Affirmed.
Edward H. Schulman, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Blythe J. Leszkay and Yun K. Lee,
Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant Juan Lopez appeals from his
conviction of first degree murder, premeditated attempted
murder, and other offenses. He argues primarily the trial court
erred in failing to instruct the jury on heat-of-passion voluntary
manslaughter. We conclude the evidence did not support such an
instruction, and defendant’s other arguments are also
unpersuasive. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The murder and attempted murder in this case arose from
a car-to-car gang shooting, which shortly followed a gang
confrontation near defendant’s home.
1. The Gangs
Defendant is a member of the Ghetto Family gang in
Pomona. A derogatory term for Ghetto Family members, used by
rival gangs, is “Gold Fish” or “Fish.” One of Ghetto Family’s rival
gangs is Raza Unida; the victims in this case were members of
Raza Unida. A derogatory term for Raza Unida members is
“Rats.”
Defendant and his family lived in a house which was
adjacent to a local cemetery. Although Ghetto Family members
would hang out at defendant’s house, neither the house, nor the
cemetery, was in territory claimed by Ghetto Family. The area
was not claimed by Raza Unida, either, but was traditionally
associated with a third, unrelated, gang.
2. The Confrontation Near Defendant’s House
The shooting in this case was in retaliation for a gang
conflict which occurred between defendant and other Ghetto
Family members who were relaxing in his yard, on the one side,
and, on the other side, several Raza Unida members who were
visiting the nearby cemetery.
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On October 22, 2015, at around 2:00 in the afternoon,
Ghetto Family members, and non-member friends, were in
defendant’s yard, drinking beer and taking drugs (marijuana and
methamphetamine). Defendant and one of the others left to go
buy more drugs. Those remaining in the yard included James
Barden, who would ultimately be charged with defendant, and a
young man known only as Carlos.
At the same time, Raza Unida member Joe Morales (the
murder victim in this case), was at the cemetery to visit his
brother’s grave. Sometime later, he was joined by fellow Raza
Unida member Anthony Torres (the attempted murder victim).
Torres had a gun. A third man joined them as well.
At some point, the Ghetto Family group in defendant’s yard
and the Raza Unida group in the cemetery noticed each other.
From the yard, Carlos said, “Fuck Rats,” jumped over the 5-foot
wall separating the yard from the cemetery, and starting running
toward the Raza Unida members. Torres flashed his gun. Carlos
froze and ran back to safety in defendant’s yard.
When defendant and his friend returned from buying
drugs, the group in his yard told him what had happened.
Defendant and his friend briefly beat up Carlos for jumping over
the wall and approaching their rivals.
In the cemetery, several more people had joined the Raza
Unida group; they were drinking beer. They were taunting the
Ghetto Family group, calling them “Fish” and “Gold Fish.”
Defendant turned to Barden and said, “Let’s go get these
fools.” At defendant’s urging, Barden got into the driver’s seat of
a black SUV. Defendant entered the front passenger seat. The
others got into another car to follow. As the Ghetto Family group
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got into their vehicles, they saw the Raza Unida group getting
into theirs, one of which was a silver Altima.
Barden believed that he and defendant were “on a mission.”
The SUV was dangerously low on fuel, and Barden suggested
they stop at a gas station. Defendant said, “No, let’s go get these
fools.” Defendant, who was carrying a handgun, had the gun out
and ready.
As Barden drove past the entrance to the cemetery, he did
not see any of the Raza Unida group still there. He knew a spot
where Raza Unida members like to hang out – the home of one of
the men who had been at the cemetery – and he believed that
was the destination of the Raza Unida members who had left. He
drove in that direction.
3. The Shooting
As Barden drove, defendant spotted the silver Altima, and
pointed it out to Barden. The car was about a block ahead,
stopped at a red light, in the left lane. Barden turned the SUV
into the emergency center lane and sped all the way down to
where the Altima was stopped. Barden slammed on the brakes,
ending up slightly ahead of the Altima; the SUV was in the left-
turn pocket, so that the SUV’s passenger side was adjacent to the
driver’s side of the Altima. Barden had also turned the SUV
slightly into the lane to his right; he had been trying to cut off the
Altima. Morales was in the driver’s seat of the Altima; Torres in
the front passenger seat.
The passenger window of the SUV was already down.
Defendant was wearing a black bandana covering his face from
nose to chin. He leaned his upper body out of the passenger
window and fired two rounds at the victims. At this point,
defendant’s gun jammed, and he popped back into the SUV and
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attempted to unjam the gun. Torres returned fire, and, once
defendant had fixed his jam, bullets flew between the two cars.
Barden completed the left turn and drove off. As he did,
defendant screamed out the window, “Fuck Rats, Ghetto Family!”
Morales had been killed. Torres was not injured.
Defendant had been shot in the eye.
4. Other Offenses
Defendant was taken to a local hospital. Realizing that
defendant’s eye injury required a trauma center, which that
hospital did not have, one of the nurses said defendant would
have to be transferred to Pomona Valley Hospital. Defendant
said, “I’m not going there” and ran out.
In the hospital parking lot, two men in a parked car were
talking with a hospital employee standing outside the car.
Defendant approached and asked them to drive him to a hospital.
The employee told defendant that there was an emergency room
right behind him. Defendant pulled a knife, ordered the two men
out of the car, and drove off in their car.
5. Charges and Barden’s Plea
Initially, defendant and Barden were both charged with the
murder of Morales (Pen. Code, § 187) and the attempted
premeditated murder of Torres (§§ 664/187).1 Various firearm
(§ 12022.53) and gang enhancements (§ 186.22, subd. (b)(1)(C))
were also alleged. By amended information, defendant was also
1 All undesignated statutory references are to the Penal
Code.
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charged with two counts of carjacking (§ 215, subd. (a)) with a
knife enhancement (§ 12022, subd. (b)(2)).2
A second amended information added a charge of accessory
after the fact (§ 32) against Barden. Barden entered a plea of
guilty to all of the charges against him (murder, attempted
murder, and accessory) and admitted the enhancements. Barden
and the prosecution agreed to a disposition that if Barden
testified truthfully at defendant’s trial, he could withdraw his
plea to murder and attempted murder, those charges would be
dismissed, and he would receive a sentence of 7 years on the
accessory and gang enhancement charges.
6. Trial and Defendant’s Testimony
At trial, Barden testified against defendant, specifically
stating that defendant was away when Carlos jumped the
cemetery wall; there was a verbal altercation between the two
gangs; and he would not have driven after the victims were it not
for defendant having asked him to do so. An unaffiliated
eyewitness agreed that the passenger in the SUV fired into the
Altima before someone in the Altima fired back.
Prior to defendant deciding whether to testify, defense
counsel asked whether the court would instruct on self-defense
and heat-of-passion manslaughter. Based on the state of the
evidence, the court “would not be inclined” to give the heat-of-
passion instruction. The court said it would wait until defendant
testified (or decided not to) before deciding on self-defense.
2 A gang enhancement was also alleged as to this count, but
dismissed at trial.
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Defendant did testify and geared his testimony toward self-
defense.3 He agreed with some of Barden’s testimony: words had
been exchanged with the Raza Unida members at the cemetery;
he and Barden got into the SUV to go after them; and when
Barden pulled up beside their car, defendant leaned out his
window and shot into the Altima first. However, defendant’s
testimony differed from Barden’s in several respects: defendant
was at the scene when Carlos jumped over the wall, and the
initial confrontation with Raza Unida had taken place in
defendant’s presence. When Carlos started walking toward the
Raza Unida members in the cemetery, victim Torres moved the
slide to load his gun, pointed it toward the Ghetto Family
members, including defendant, and threatened to kill Carlos.
After Carlos returned, defendant did not participate in beating
him, because his attention was focused on Torres and his gun.
Thereafter, the Ghetto Family members started yelling, “Fuck
Rats” and both sides shouted back and forth. Defendant saw
Raza Unida members, including Torres, get into the Altima.4
Before he got into the car, Torres stated that they were going to
come back. Defendant was concerned. Defendant had his
3 When defendant was in pretrial custody, authorities
recorded a telephone call he had with a friend, in which he
discussed the charges against him. His friend said, “Cuz it, yup
it was it was self-defense.” Defendant responded, “Yeah, well[,]
that’s that’s one way to go about it, but I don’t know my boy I’m
just waiting to go over there, you know, get my discovery and shit
and see how that shit’s going.”
4 Defendant’s investigator testified that the distance from
the wall surrounding defendant’s yard to where the Raza Unida
cars were parked was 117 feet.
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handgun in his waistband; he kept it on him at all times, fully
loaded. He did not pull his weapon at this point; nobody on the
Ghetto Family side did.
According to defendant, Barden, of his own initiative, then
ran across the street to the SUV and brought it around to the
house. Defendant jumped in. He believed there was a chance
that the Raza Unida members would go to his house. Barden
drove toward the cemetery and continued driving. Defendant felt
at ease when he saw the Raza Unida members were no longer at
the cemetery because the threat was no longer present. When
Barden pulled beside the Altima at the stop light, defendant did
not know that this was the same car he had seen at the cemetery.
He leaned out his passenger-side window to look into it. He saw
Torres pointing a gun at him through the Altima’s open driver’s
side window. To protect himself, defendant pulled his gun and
managed to shoot first.
As to his mental state, defendant testified that, during the
confrontation at the cemetery, he felt disrespected, angry and
afraid. But he confirmed that his emotions dissipated when he
saw the Raza Unida members had left the cemetery. He
explained, “When we were coming down [the street], we seen
they’re not in the cemetery any more. So that threat is gone. We
are at ease now.” Defendant did not feel threatened until after
Barden had stopped the SUV next to the Altima and defendant
saw Torres aiming a gun at him from the other car.
7. Instructions, Verdict and Sentence
Based on defendant’s testimony, the trial court found that
instructions on self-defense and imperfect self-defense were
justified, but heat of passion instructions were not. The jury was
instructed accordingly. On the issue of the degree of murder, the
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jury was instructed that the murder is in the first degree if it was
premeditated or if defendant intentionally shot someone from a
motor vehicle with the intent to kill. (CALCRIM No. 521.)
Defendant was convicted as charged. Specifically, he was
found guilty of first degree murder on both theories. The jury
found true the firearm enhancements under section 12022.53,
subdivisions (b) through (d). The jury also found defendant guilty
of attempted premeditated murder of Torres, and found true
firearm enhancements under section 12022.53, subdivisions (b)
and (c). With respect to both counts, the jury found true that
defendant committed the offense for the benefit of a criminal
street gang. He was also found guilty of two counts of carjacking
with the knife enhancement.
Defendant moved for a new trial because the trial court had
improperly refused the heat-of-passion voluntary manslaughter
instruction. After a spirited argument, the court denied the
motion.
Defendant was sentenced as follows: For the murder, a
term of 25 years to life, consecutive to a term of 25 years to life
for the section 12022.53, subdivision (d) firearm enhancement; for
the attempted murder, a term of 15 years to life, consecutive to a
term of 20 years for the section 12022.53, subdivision (c) firearm
enhancement; for the first carjacking, the high term of 9 years
plus 3 years for the knife; for the second carjacking, 1 year 8
months (one-third the middle term). All terms were to run
consecutively; sentences on all other enhancements were stayed.
Defendant filed a timely notice of appeal.
DISCUSSION
On appeal, defendant contends (1) the court erred in
refusing his request to instruct on heat-of-passion voluntary
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manslaughter; (2) his counsel rendered ineffective assistance in
failing to request an instruction that provocation could weigh
against a finding of premeditation; and (3) the weapon
enhancement under section 12022.53, subdivision (d), when
applied to a murder conviction, constitutes an improper multiple
conviction in violation of double jeopardy principles.
1. The Evidence Did Not Support a Heat-of-Passion
Voluntary Manslaughter Instruction
Defendant argues the court erred in denying a heat-of-
passion voluntary manslaughter instruction. Specifically, he
contends that the confrontation at the cemetery, in which Torres,
a member of a rival gang, threatened his friend, pointed a gun at
defendant, and threatened to return were sufficient to provoke a
reasonable person, and actually provoked him. The final act of
provocation was when Torres aimed a gun on him when the black
SUV pulled up next to the Altima.
We briefly review of some common principles of
manslaughter as a lesser included offense to murder. “ ‘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. [Citation.]’ [Citations.] [¶] ‘ “To justify a lesser
included offense instruction, the evidence supporting the
instruction must be substantial—that is, it must be evidence
from which a jury composed of reasonable persons could conclude
that the facts underlying the particular instruction exist.”
[Citations.]’ [Citation.]” (People v. Enraca (2012) 53 Cal.4th 735,
758.) “We review the trial court’s failure to instruct on a lesser
included offense de novo, considering the evidence in the light
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most favorable to the defendant. [Citation.]” (People v. Campbell
(2020) 51 Cal.App.5th 463, 501.)
Manslaughter is a lesser included offense to murder. Thus,
the court must give manslaughter instructions when there is
substantial evidence to support conviction of that crime. (People
v. Gonzales and Soliz (2011) 52 Cal.4th 254, 301.) “ ‘Murder is
the unlawful killing of a human being with malice aforethought.
[Citation.] A murder, however, may be reduced to voluntary
manslaughter if the victim engaged in provocative conduct that
would cause an ordinary person with an average disposition to
act rashly or without due deliberation and reflection.’ [Citation.]”
(People v. Enraca, supra, 53 Cal.4th at pp. 758–759.) In such a
case, there is no malice. “Heat of passion is a mental state that
precludes the formation of malice and reduces an unlawful killing
from murder to manslaughter.” (People v. Beltran (2013)
56 Cal.4th 935, 942.) It “is a state of mind caused by legally
sufficient provocation that causes a person to act, not out of
rational thought but out of unconsidered reaction to the
provocation. While some measure of thought is required to form
either an intent to kill or a conscious disregard for human life, a
person who acts without reflection in response to adequate
provocation does not act with malice.” (Ibid.) Heat-of-passion
voluntary manslaughter “requires a showing of adequate
provocation, which has both a subjective and an objective
component. [Citation.] The defendant must actually and
subjectively kill under the heat of passion, but the circumstances
giving rise to the heat of passion are also viewed objectively to
determine whether the ‘ “circumstances were sufficient to arouse
the passion of the ordinarily reasonable man.” ’ [Citation.]”
(People v. Gonzales and Soliz, supra, 52 Cal.4th at p. 301.)
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Here, the evidence fails to support the subjective element of
provocation; there is no evidence that defendant was actually and
subjectively provoked at the time he fired into the Altima.
Specifically, there is insufficient evidence for defendant’s
assertion that he was provoked to act rashly by the confrontation
at the cemetery. Defendant admitted at trial that he had a
loaded .45 in his waistband at the time his passions were
purportedly aroused, but he made no unconsidered effort to shoot
at the Raza Unida members when they provoked him with
threats. Instead, he got in the SUV with Barden and followed
them, indicating, at the very least, that defendant was in
sufficient control of his faculties to not shoot blindly in passionate
response to the supposed provocation. Instead, he rationally held
back and chased after them.
Even if we were to assume defendant felt provoked during
confrontation at the cemetery, defendant admitted that, when he
and Barden drove past the cemetery and saw that the Raza
Unida vehicles were gone, defendant felt “at ease” because the
threat was “gone.” To the extent defendant suggests that his
passion was in some way reignited when he and Barden caught
up with the Altima and Torres pointed a gun at him, defendant’s
testimony was again to the contrary. In support of his self-
defense argument, defendant testified that when he saw the gun
aimed at him, he thought he was going to get shot, so he made
the decision to fire out of self protection. “Defendant’s own
uncontested testimony established he did not act rashly, or
without due deliberation and reflection, or from strong passion
rather than from judgment, when he claimed to have [acted in
self-defense to fend off an attacker].” (People v. Moye (2009)
47 Cal.4th 537, 541.) Defendants’ testimony here was that he
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acted in self-defense, a theory on which the jury was instructed
and which the jury rejected.5
2. Trial Counsel Did Not Render Ineffective Assistance
of Counsel in Failing to Request an Instruction that
Provocation Weighs Against Premeditation
A jury may be instructed that provocation inadequate to
reduce a killing from murder to manslaughter nonetheless may
suffice to negate premeditation and deliberation, thereby
reducing the crime to second degree murder. (People v. Rogers
(2006) 39 Cal.4th 826, 877–78.) This is a pinpoint instruction
which must be requested by counsel; it need not be given on the
court’s motion. (Id. at p. 878.) Recognizing this, defendant
argues his trial counsel rendered ineffective assistance by not
requesting the instruction.6
5 Because we resolve the appeal on the subjective element of
voluntary manslaughter, we need not address the objective
element. We observe that the bulk of defendant’s briefing on
appeal addresses the objective element – specifically, whether
gang challenges can constitute provocation. (E.g., People v.
Minifie (1996) 13 Cal.4th 1055, 1060 [evidence of third-party
threats may be admissible on self-defense if there is evidence the
defendant reasonably associated the victim with those threats].)
But Minifie, on which defendant relies, resolved an evidentiary
issue related to self-defense, not an instructional issue as to
voluntary manslaughter, and is therefore irrelevant.
6 In connection with defendant’s argument that the court
erred in failing to instruct on voluntary manslaughter, the
Attorney General argues that any error was necessarily harmless
because the jury found that defendant premeditated the murder.
(See People v. Peau (2015) 236 Cal.App.4th 823, 830–832 [when
the jury is properly instructed on premeditation, a finding of
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“ ‘In assessing claims of ineffective assistance of trial
counsel, we consider whether counsel’s representation fell below
an objective standard of reasonableness under prevailing
professional norms and whether the defendant suffered prejudice
to a reasonable probability, that is, a probability sufficient to
undermine confidence in the outcome.’ ” (People v. Carter (2005)
36 Cal.4th 1114, 1189.) We presume “counsel’s performance fell
within the wide range of professional competence and that
counsel’s actions and inactions can be explained as a matter of
sound trial strategy. Defendant thus bears the burden of
establishing constitutionally inadequate assistance of counsel.
[Citations.] If the record on appeal sheds no light on why counsel
acted or failed to act in the manner challenged, an appellate
claim of ineffective assistance of counsel must be rejected unless
counsel was asked for an explanation and failed to provide one, or
there simply could be no satisfactory explanation.” (Ibid.)
Here, the record does not expressly indicate why counsel
did not request this instruction, but at least two potential
rational explanations exist: (1) the evidence did not support such
an instruction; and (2) the instruction, if given, could have made
no practical difference on defendant’s conviction. As to the first,
we have already discussed that the evidence of subjective
premeditation would be inconsistent with heat of passion].)
Defendant’s argument regarding the premeditation instruction is,
in effect, a preemptive strike against the Attorney General’s
argument. The premeditation finding could not render the
failure to instruct on voluntary manslaughter harmless if the
premeditation instruction was itself erroneous. Our conclusion
that the premeditation instruction was appropriate is an
additional reason to reject defendant’s argument on the court’s
failure to instruct on voluntary manslaughter.
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provocation was insufficient. As to the second, the jury was
properly instructed on two bases for finding the murder to be in
the first degree: one, premeditation and, two, committed by
shooting from a motor vehicle. Even if defendant had obtained
this instruction and it had an effect on the jury’s finding of
premeditation, his murder conviction still would have been in the
first degree because he indisputably fired from a motor vehicle
with the intent to kill.7
3. There is No Improper Multiple Conviction
Defendant’s murder conviction was enhanced under section
12022.53, subdivision (d). That subdivision provides that any
defendant committing one of several enumerated crimes,
including murder, who “personally and intentionally discharges a
firearm and proximately causes great bodily injury . . . or death,
7 Anticipating this argument, defendant takes the position
that his counsel rendered ineffective assistance by not also
requesting the instruction be modified to apply to the shooting
from a motor vehicle basis for first degree murder. Defendant
suggests “there is no principled reason why a defendant’s
subjective belief in provocation cannot also be invoked as a basis
for negating the element of intent-to-kill within the context of
first degree murder based on the discharge of a firearm from a
motor vehicle and thereby allow for a second degree murder
verdict based on implied malice.” Defendant cites no authority
for this proposition. We conclude trial counsel could have made
the reasonable tactical decision to not pursue a pinpoint
instruction which would have no practical effect on his first
degree murder conviction without a modification of the
instruction for which appellate counsel can offer no legal basis.
Trial counsel could have reasonably concluded the only successful
outcomes obtainable for defendant were an acquittal based on
self-defense or manslaughter based on imperfect self-defense.
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to any person other than an accomplice, shall be punished by an
additional and consecutive term of imprisonment in the state
prison for 25 years to life.” Reasoning that anyone who uses a
firearm in a murder will, by definition, cause death to another
person, defendant argues that applying this enhancement to
murder is, in effect, an impermissible multiple conviction which
violates double jeopardy principles.
Defendant concedes the law is against him and that he is
simply raising the issue to preserve it. He is correct about
California law: our Supreme Court rejected this argument in
People v. Izaguirre (2007) 42 Cal.4th 126, 128–130. The Ninth
Circuit is in accord. (Plascenia v. Alameida (9th Cir. 2006)
467 F.3d 1190, 1197–1204 [rejecting double jeopardy complaint
with respect to a section 12022.53, subdivision (d) firearm
enhancement to a murder conviction].)
DISPOSITION
The judgment is affirmed.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
KIM, J.
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