People v. Cruz CA2/3

Filed 4/29/21 P. v. Cruz CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, B304290

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. TA144805)
v.

JUAN CARLOS CRUZ,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Kelvin D. Filer, Judge. Affirmed as modified.
Kevin D. Sheehy, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Steven D. Matthews and Michael J. Wise,
Deputy Attorneys General, for Plaintiff and Respondent.
——————————
 Juan Carlos Cruz appeals from his judgment of conviction
of second degree murder (Pen. Code,1 § 187, subd. (a)) and
shooting at an occupied vehicle (§ 246) with true findings on
firearm enhancement allegations (§ 12022.53, subds. (b)-(d)).
On appeal, Cruz contends the trial court erred in failing to
instruct the jury on voluntary manslaughter under a heat of
passion theory. Cruz also claims the trial court abused its
discretion in imposing a firearm enhancement on the murder
count under section 12022.53, subdivision (d) rather than a
lesser-included enhancement under subdivision (b) or (c). We
modify the judgment to accurately reflect Cruz’s actual custody
credits, but otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Cruz’s Prior Relationship with the Victim
The victim in this case was Arturo Villanueva San Vicente.
Cruz and Villanueva became friends after working together at a
car wash. While hanging out with Cruz, Villanueva met Cruz’s
wife, Jennifer Perez, and they also became friends. At some
point, Villanueva began suggesting to Perez that Cruz was
cheating on her. Perez initially did not believe him. However, in
April 2017, Perez became upset at Cruz because he was flirting
with a friend that Perez had invited to their home. When Cruz
left with Perez’s friend and did not return home until later that
night, Perez believed he was having an affair.
On April 8, 2017, Perez began a four-month affair with
Villanueva as revenge against Cruz. On the day the affair

1 All further statutory references are to the Penal Code.

2
started, Villanueva posted on his Instagram account a picture of
a hand holding a gun with the statement “[a] short one for the
ones I’m against.” The post included the hashtag “Juanito,”
which was Cruz’s nickname. When Villanueva showed the post
to Perez, he said he wanted to prove he was not afraid of Cruz
and to see if Cruz would confront him. Villanueva’s Facebook
profile also had a picture of him with a rifle.
According to Perez, Villanueva became obsessed with her
over the course of their affair. He repeatedly asked her to leave
Cruz and run away with him to Mexico. He began checking
Cruz’s location on social media platforms, and he once showed up
at Perez’s home when he thought Cruz was not there. Although
Perez told him to leave, Villanueva refused and said he would
“start doing drama” if she did not come outside. He also said he
was not afraid of Cruz and would not mind facing him if Cruz
came home. On another occasion, Villanueva told Perez, “[I]f you
don’t leave with me in a good way, you’re going to leave with me
in a bad way.” He then slashed Perez’s bedroom window screen.
Starting in July 2017, Villanueva began making threats
to Perez about killing Cruz. He told Perez he would “get rid of”
Cruz because “that’s what it was going to take” for her to leave
him. He also said he would get a gun from his friend, Jonathan
Castro, who was in a gang and was willing to help him kill Cruz.
Villanueva told Perez “all it takes is one,” which she understood
to mean “one gunshot to remove” Cruz. By early August, Perez
was fearful because Villanueva was talking more about killing
Cruz and leaving with Perez to Mexico. Villanueva made clear to
Perez that he was willing to get rid of Cruz so that they could
be together, and he was angry when Perez refused to leave her
husband for him.

3
 Perez told her friend, Estefany Merino, about her affair
with Villanueva. On a few occasions, Perez also asked Merino to
accompany her on dates with Villanueva so that Merino could act
as a cover for Perez in case anyone she knew saw them together.
Although Perez told Merino that Villanueva had twice threatened
to “kill or get rid” of Cruz, Merino did not consider the threats to
be “too serious.” On one occasion, Villanueva called Merino and
told her he wanted Perez to run away with him, and he wanted to
get a gun from his friend so that he could get rid of Cruz. In
response, Merino warned Villanueva “not to do anything crazy,”
and to leave Perez alone because she would “never leave her
family.” The last time Merino went out with Perez and
Villanueva, she heard Villanueva tell Perez that she needed to
leave Cruz and that he would kill him. At that point, Merino
advised Perez that she should stop seeing Villanueva.
On August 4, 2017, Perez ended the affair with Villanueva
because of his escalating threats and other behavior. On
October 5, Villanueva changed his Facebook profile to a picture of
him holding a rifle with the statement: “I went out with God. If I
don’t come back, it’s because I left with him.” The profile picture
also showed a girl next to a truck stating “fuck your Ford.” Perez
believed Villanueva intended the picture to “trigger” Cruz, who
drove a Ford Explorer at the time.
On November 13, 2017, Perez disclosed the affair to Cruz.
According to Perez, she confessed to Cruz because Villanueva’s
threats had “started getting more intense.” Cruz initially was
calm, but became angry at both Perez and Villanueva as Perez
disclosed the details of the affair. When Cruz asked Perez why
she decided to tell him at that time, Perez said that Villanueva
was making threats against him. In describing the threats to

4
Cruz, Perez said Villanueva and Castro were setting Cruz up to
kill him, and Villanueva claimed he could get a gun from Castro
to use against Cruz. She also told Cruz that Villanueva
repeatedly said he was going to kill Cruz and had slashed their
bedroom window screen. After Perez told Cruz about the affair,
he was so angry that he did not want to see or talk to her. Cruz
was also worried about the threats and feared for his life and the
lives of their young children, who might be with Cruz if he were
attacked. Perez believed Cruz stayed upset over the next several
days and did not calm down.

Cruz Fatally Shoots Villanueva in His Vehicle
On the night of November 18, 2017, five days after
Perez disclosed the affair, Cruz fatally shot Villanueva while
Villanueva was sitting inside his vehicle. Earlier that evening,
Villanueva had been with his good friend, Castro, a self-admitted
gang member.2 As Villanueva was driving Castro home, he
mentioned he had dropped a container of medical marijuana
inside his vehicle. When they arrived at the apartment complex
where Castro resided, they recognized Cruz’s truck parked in the
driveway. Villanueva parked his vehicle along the street.
Villanueva told Castro he was going to look for the container
of marijuana he had dropped while driving. As Castro was
leaving the vehicle, Villanueva remained in the driver’s seat. He
was turned toward his right, looking in the center console area.

2According to Castro, Villanueva had asked Castro to get
him a gun because he was afraid of Cruz. Castro did not own or
possess a gun and did not obtain one for Villanueva.

5
 Castro stopped on the sidewalk to talk to a neighbor. While
the men were having a conversation, Cruz walked past them
between two parked trucks. Cruz did not say anything to the
men, and instead continued walking toward the driver’s side of
Villanueva’s vehicle. Castro saw Cruz open the driver’s door and
quickly fire multiple shots at Villanueva with a gun. Cruz then
closed the door, walked toward the back of the vehicle, and made
eye contact with Castro. Cruz’s face showed panic, shock, and
horror, but he did not speak.
Fearing for his life, Castro ran inside his apartment.
He told his girlfriend, Guadalupe Flores, that something had
happened to Villanueva and asked her to check on him. As
Flores walked outside, she saw Cruz get in his truck and drive
away. Flores approached Villanueva’s vehicle and opened the
passenger door. Villanueva was slouched over the center console
between the driver’s and passenger seats. His knees were on the
driver’s seat and his body was turned toward the back of the
vehicle. After calling 911, Flores opened the driver’s door so that
she could render aid to Villanueva. At that time, Castro came
back outside and helped Flores pull Villanueva out of the vehicle
and onto the ground. Responding paramedics were unable to
revive Villanueva at the scene.
Villanueva died from multiple gunshot wounds. He
sustained six gunshot wounds, four of which were fatal. The
pathway of each of the bullets was back to front, right to left,
and downward in the victim. The four fatal wounds were caused
by bullets entering the back or right side of the body and exiting
the front or left side. The two nonfatal wounds were due to
bullets entering and exiting the back and right arm.

6
 Surveillance video from an apartment building across the
street did not capture the actual shooting. However, it showed
that, prior to the shooting, Villanueva’s vehicle slowed down as it
passed in front of Cruz’s parked truck. A short time later, two
figures walked in succession from Cruz’s truck in the direction
where Villanueva had parked his vehicle. After some time, one
figure ran back to Cruz’s truck followed by a second figure who
walked back to the truck. A third figure, who appeared to be
Castro, then walked toward the gate of the apartment complex.
No weapon was found inside Villanueva’s vehicle.

Cruz’s Statement to the Police
On November 30, 2017, Cruz was arrested. In a recorded
interview with the police, Cruz initially denied he was present at
the shooting. When told he was captured on video at the scene
of the shooting, Cruz admitted that he and a friend named Lalo
were standing nearby and heard gunshots, but denied he was
involved. Later in the interview, Cruz admitted that he shot
Villanueva. Cruz said he was high on drugs and felt his life was
in danger because he had been told Villanueva wanted to kill
him. Cruz also said he felt threatened by Villanueva and “[j]ust
snapped.” As described by Cruz, he went to the apartment
complex to visit a friend and “[p]anicked” when he saw
Villanueva pull up in his vehicle. Because Villanueva stayed
inside the vehicle, Cruz began to think Villanueva was going to
shoot him so he “had to do what [he] had to do, before [he was]
killed.” Cruz did not say anything to Villanueva. He “[j]ust
walked up and shot him.” Cruz then panicked and left in his
truck. He later got rid of the gun by tossing it into a lagoon.

7
 Cruz’s Trial Testimony
Cruz testified on his own behalf at trial. According to his
testimony, Cruz was 28 years old at the time of trial, was married
to Perez, and had three young children with her. He did not have
any prior misdemeanor or felony convictions. As of 2017, Cruz
had known Villanueva for about five years and considered him to
be a good friend. In April 2017, however, Villanueva suddenly
stopped talking to him. In July, Cruz saw Villanueva’s
Instagram post showing the picture of a gun with the hashtag
“Juanito.” Although Cruz wondered about the meaning of the
post, he did not perceive it as a threat at that time. In July, Cruz
left his job at the car wash and began working in a bakery. After
changing jobs, Cruz did not have any contact with Villanueva
until the shooting.
In November 2017, about five days before the shooting,
Perez told Cruz she had an affair with Villanueva, and
Villanueva was making threats against his life. Cruz initially
was shocked, but when Perez disclosed details of the affair, he
understood why Villanueva had stopped talking to him. Cruz
also understood the meaning of Villanueva’s social media post
when Perez disclosed that Villanueva wanted to kill Cruz and
wanted Perez to run away with him. While Perez did not tell
Cruz if Villanueva had a gun, Cruz knew Villanueva had access
to guns through Castro. Perez’s admissions made Cruz feel hurt,
angry, and worried. The affair was humiliating to Cruz. He had
friends in common with Villanueva and was embarrassed that
they would know his wife had a sexual relationship with his
friend. Cruz was also worried because he believed Villanueva
was serious about wanting to kill him. After Perez told him

8
about the threats, Cruz began carrying a loaded revolver in his
pocket for protection from Villanueva.
On the night of the shooting, Cruz and Lalo went to the
apartment complex to visit a friend named Alfredo. Cruz had
consumed alcohol, cocaine, and methamphetamine throughout
the day. As Cruz was standing on the sidewalk talking to the
men, he noticed Villanueva’s vehicle parked on the street. Castro
got out of the vehicle and approached the group. He spoke to
Alfredo but ignored Cruz. Cruz wondered why Villanueva had
stayed inside the vehicle, and started to get worried and nervous.
Cruz decided to talk to Villanueva rather than leave. He believed
that, even if he left at that time, “the problem [was] still going to
be there,” and he did not “want to be living [his] life looking over
[his] shoulder.” As he was walking toward the vehicle, Cruz did
not intend to shoot Villanueva, but only to speak with him.
Cruz could not see inside Villanueva’s vehicle because the
windows were darkly tinted. The driver’s door of the vehicle was
slightly ajar. When Cruz pulled the handle and opened the door,
he saw Villanueva sitting in the driver’s seat. Villanueva gave
Cruz an angry look and then quickly reached to his right and
grabbed a gun from the center console area. In response, Cruz
pulled his own gun from his pocket, pointed it at Villanueva, and
“shot him as fast as [he] could.” Cruz did not wait for Villanueva
to point the gun at him because he did not want to get shot.
While firing his weapon, Cruz felt panic and fear for his life. At
that moment, Cruz believed he was going to die based on the look
on Villanueva’s face, his social media post, the fact that
Villanueva had suddenly stopped talking to Cruz, and Perez’s
statements that Villanueva wanted to kill him. Cruz would not
have shot Villanueva if he did not think he saw a gun.

9
 Immediately after the shooting, Cruz was scared and in
shock. He stood by the vehicle for a few seconds, then walked
back to his truck. He decided to leave the scene because he
thought the police would not believe him. Cruz got rid of the gun
after the shooting because he was afraid and did not want the
weapon in his possession. Although Cruz was under the
influence of drugs and alcohol at the time of the shooting, he
denied that it caused him to fire his gun at Villanueva. Cruz
testified that the “[o]nly thing that caused [him] to shoot
[Villanueva] was fear, that [Villanueva] was about to shoot
[him].”

Jury Verdict and Sentencing
The jury found Cruz guilty of second degree murder (§ 187,
subd. (a)) and shooting at an occupied motor vehicle (§ 246). On
each count, the jury found the firearm enhancement allegations
under section 12022.53, subdivisions (b), (c), and (d) to be true.
The trial court sentenced Cruz to a total term of 40 years to life
in state prison, consisting of 15 years to life on the second degree
murder count, plus 25 years to life on the firearm enhancement
under section 12022.53, subdivision (d). The court stayed the
sentence on the remaining firearm enhancements on the murder
count pursuant to section 12022.53, subdivision (f). The court
also stayed the sentence on the shooting at an occupied vehicle
count pursuant to section 654, and struck each firearm
enhancement on that count pursuant to section 1385.
Cruz timely appealed.

10
 DISCUSSION

Failure to Instruct on Voluntary Manslaughter
Based on Heat of Passion
On appeal, Cruz asserts the trial court erred in failing to
instruct the jury sua sponte on voluntary manslaughter under
a heat of passion theory. Although the trial court instructed the
jury on voluntary manslaughter based on imperfect self-defense,
Cruz argues a voluntary manslaughter instruction based on heat
of passion was also warranted because there was substantial
evidence to support a finding that he killed Villanueva in a heat
of passion due to sufficient and continuing provocation.

It is the trial court’s “ ‘ “ ‘duty to instruct the jury not only
on the crime with which the defendant is charged, but also on
any lesser offense that is both included in the offense charged
and shown by the evidence to have been committed.’ ” ’ ” (People
v. Westerfield (2019) 6 Cal.5th 632, 718, italics omitted.)
“ ‘ “Conversely, even on request, the court ‘has no duty to instruct
on any lesser offense unless there is substantial evidence to
support such instruction.’ ” ’ ” (People v. Souza (2012) 54 Cal.4th
90, 116.) In this context, the “ ‘substantial evidence requirement
is not satisfied by “ ‘any evidence . . . no matter how weak,’ ” but
rather by evidence from which a jury . . . could conclude “that the
lesser offense, but not the greater, was committed.” ’ ” (People v.
Nelson (2016) 1 Cal.5th 513, 538.) “ ‘On appeal, we review
independently the question whether the trial court improperly
failed to instruct on a lesser included offense.’ ” (Ibid.)
“ ‘Murder is the unlawful killing of a human being . . . with
malice aforethought.’ (§ 187, subd. (a).) ‘Manslaughter is the

11
unlawful killing of a human being without malice.’ (§ 192,
subd. (a).) Manslaughter is a lesser included offense of murder,
and a defendant who commits an intentional and unlawful killing
but who lacks malice is guilty of voluntary manslaughter.”
(People v. Nelson, supra, 1 Cal.5th at p. 538.) For “purposes of
voluntary manslaughter—an unlawful killing without malice—
the absence of malice is limited to two circumstances: ‘ “ ‘when
the defendant acts in a “sudden quarrel or heat of passion” (§ 192,
subd. (a)), or when the defendant kills in “unreasonable self-
defense”—the unreasonable but good faith belief in having to act
in self-defense.’ ” ’ ” (People v. Landry (2016) 2 Cal.5th 52, 92.)
“If either of these circumstances is found, an unlawful killing will
be voluntary manslaughter rather than murder.” (Id. at p. 97.)
“Heat of passion arises if, ‘ “at the time of the killing, the
reason of the accused was obscured or disturbed by passion to
such an extent as would cause the ordinarily reasonable person
of average disposition to act rashly and without deliberation and
reflection, and from such passion rather than from judgment.” ’ ”
(People v. Beltran (2013) 56 Cal.4th 935, 942.) A heat of passion
theory of voluntary manslaughter has both an objective and a
subjective component. (People v. Moye (2009) 47 Cal.4th 537,
549.) Objectively, “ ‘ “the accused’s heat of passion must be due to
‘sufficient provocation’ ” ’ ” (ibid.), and subjectively, “the accused
must be shown to have killed while under ‘the actual influence
of a strong passion’ induced by such provocation” (id. at p. 550).
The “ ‘ “factor which distinguishes the ‘heat of passion’ form of
voluntary manslaughter from murder is provocation.” ’
[Citation.] ‘To be adequate, the provocation must be one that
would cause an emotion so intense that an ordinary person would
simply react, without reflection. . . . . [T]he anger or other

12
passion must be so strong that the defendant’s reaction bypassed
his thought process to such an extent that judgment could not
and did not intervene.’ ” (People v. Beck and Cruz (2019)
8 Cal.5th 548, 649.)

For purposes of the murder charge in this case, the trial
court instructed the jury on first and second degree murder with
malice aforethought, involuntary manslaughter, and the effect of
voluntary intoxication on homicide crimes. The trial court also
instructed the jury on both justifiable homicide based on self-
defense and voluntary manslaughter based on imperfect self-
defense. Cruz did not request, and the trial court did not give,
an instruction on voluntary manslaughter based on heat of
passion. On appeal, Cruz contends there was substantial
evidence from which the jury could have found that he killed
Villanueva in the heat of passion, and thus, the failure to instruct
the jury sua sponte on this theory of voluntary manslaughter
constitutes reversible error. We conclude this claim lacks merit.
Cruz argues a heat of passion instruction was required
because there was evidence that Villanueva made provocative
and continuing threats to kill Cruz and take his family to Mexico,
and that upon learning of the threats from his wife, Cruz reacted
by confronting and shooting Villanueva in a heat of passion. It is
true, as Cruz asserts, that the “provocation sufficient to reduce
murder to manslaughter need not occur instantaneously, but may
occur over a period of time.” (People v. Wharton (1991) 53 Cal.3d
522, 569; accord, People v. McShane (2019) 36 Cal.App.5th 245,
256 [“provocation ‘may comprise a single incident or numerous

13
incidents over a period of time’”].) However, if “ ‘sufficient time
has elapsed between the provocation and the fatal blow for
passion to subside and reason to return, the killing is not
voluntary manslaughter.’ ” (People v. Beltran, supra, 56 Cal.4th
at p. 951.) To warrant a voluntary manslaughter instruction,
“the killing must be ‘upon a sudden quarrel or heat of passion’
[citation]; that is, ‘suddenly as a response to the provocation, and
not belatedly as revenge or punishment.’ ” (People v. Daniels
(1991) 52 Cal.3d 815, 868.) “Accordingly, it is not sufficient that
a person ‘is provoked and [then] later kills.’ ” (People v. Nelson,
supra, 1 Cal.5th at p. 539.)
Here, Cruz’s wife, Perez, testified that Villanueva made
repeated and escalating threats to kill Cruz between July and
August 2017. Although Perez did not have any contact with
Villanueva after she ended their affair in early August, she
perceived Villanueva’s October 5 Facebook post in which he
posed with a rifle and made a derogatory remark about the
type of vehicle that Cruz drove as an additional attempt to
“trigger” Cruz. On November 13, Perez disclosed to Cruz the
affair and Villanueva’s threats. While Cruz felt hurt, angry, and
worried upon learning of the affair and Villanueva’s threats
against his life, he did not take any immediate action in response
to Perez’s disclosures. It was not until five days later, on
November 18, that Cruz decided to approach Villanueva when he
saw Villanueva’s vehicle parked on the street. Because this five-
day period was sufficient time for Cruz’s “passion to subside and
reason to return,” the evidence of Villanueva’s prior threats of
violence did not, standing alone, constitute legally sufficient
provocation to warrant a voluntary manslaughter instruction.
(People v. Beltran, supra, 56 Cal.4th at p. 951; see People v. Moye,

14
supra, 47 Cal.4th at p. 551 [voluntary manslaughter instruction
not required where evidence of fight involving defendant and
victim the evening before victim’s deadly beating “did not itself
constitute legally sufficient provocation”]; People v. Pride (1992) 3
Cal.4th 195, 250 [three-day gap between act of provocation and
fatal stabbing of victim rendered provocation “insufficient as a
matter of law to arouse feelings of homicidal rage or passion in
an ordinarily reasonable person”]; People v. McShane, supra,
36 Cal.App.5th at p. 256 [defendant’s altercation with victim four
days before fatal shooting was not adequate provocation because
“[f]our days was sufficient ‘cooling time,’ as a matter of law”].)
Cruz further asserts that, on the night of the shooting, he
was provoked into killing Villanueva because he believed that
Villanueva was prepared to kill him and that Villanueva might
be armed with a gun. Cruz notes that Perez testified she told
him about Villanueva’s plan to get a gun from his gang member
friend, Castro, and to use it to “set [Cruz] up and kill [him].”
Cruz also notes that, while no gun was found in Villanueva’s
vehicle, Castro could have removed the weapon prior to the
arrival of the police to avoid scrutiny into his own involvement in
the shooting.
Yet, even assuming that Cruz reasonably believed
Villanueva was armed with a gun when he approached the
vehicle, Cruz was not entitled to an instruction on voluntary
manslaughter under a heat of passion theory. Based on Cruz’s
own trial testimony, immediately before the shooting he
approached Villanueva’s vehicle feeling worried or nervous, but
with the rational intent of merely talking to Villanueva. The only
passion or intense emotion that Cruz experienced occurred as he
shot Villanueva because he feared for his own life and thought

15
Villanueva was going to shoot him. The jury was instructed both
on justifiable homicide based on reasonable self-defense and
voluntary manslaughter based on imperfect self-defense. Under
these circumstances, the trial court was not required to also
instruct the jury on voluntary manslaughter based on heat of
passion.
The California Supreme Court’s decision in People v. Moye,
supra, 47 Cal.4th 537, is instructive on this issue. The defendant
in Moye was convicted of second degree murder. (Id. at p. 540.)
The evidence showed he killed the victim during a confrontation
that took place the morning after they had engaged in a fistfight.
(Id. at pp. 542–554.) According to the defendant’s uncontested
testimony, on the morning of the killing, the victim attacked him
with a baseball bat after he approached the victim on the street
and then chased him over a fence. (Id. at p. 552.) The defendant
fended off the attack by grabbing the bat from the victim and
striking him with it in self-defense until the victim fell to the
ground. (Ibid.) While the trial court instructed the jury both
on justifiable homicide based on reasonable self-defense and
voluntary manslaughter based on imperfect self-defense, it
refused a defense request for an instruction on voluntary
manslaughter based on heat of passion. (Id. at p. 550.) On
appeal, the Supreme Court concluded the trial court did not err
in refusing to give a heat of passion instruction, stating: The
“thrust of defendant’s testimony below was self-defense—both
reasonable self-defense (a complete defense to the criminal
charges), and unreasonable or imperfect self-defense (a partial
defense that reduces murder to manslaughter). There was
insubstantial evidence at the close of the evidentiary phase to
establish that defendant ‘actually, subjectively, kill[ed] under

16
the heat of passion.’ ” (Id. at p. 554.) While the Supreme Court
recognized there may be circumstances where instructions on
both theories of manslaughter are warranted, it rejected any
suggestion that a heat of passion instruction is required “in every
case in which the only evidence of unreasonable self-defense is
the circumstance that a defendant is attacked and consequently
fears for his life.” (Id. at p. 555, italics omitted.)
In this case, Cruz testified in unambiguous terms that the
“[o]nly thing that caused [him] to shoot [Villanueva] was fear,
that [Villanueva] was about to shoot [him].” Cruz stated that,
when he approached Villanueva’s parked vehicle, he did not
intend to kill Villanueva, but only “[t]o talk to him.” However,
once Cruz opened the driver’s door of the vehicle and saw
Villanueva reach for a gun, Cruz pulled out his own gun and
“shot him as fast as [he] could.” Cruz stated that he shot
Villanueva because he was “scared” and in “fear.” At one point in
his testimony, Cruz stated that he felt “[p]anic” as he was firing
the gun. However, he attributed his panic and fear at the time of
the shooting to his belief that he was “going to die” given the
presence of a gun, the look on Villanueva’s face, and the prior
threats that Villanueva had made against his life. Cruz
maintained that he would not have fired his weapon if he did not
see Villanueva with a gun. Cruz further testified that he knew it
was “not right to take someone’s life[,] [b]ut what is there to do
when you’re about to get your life taken?”
Accordingly, as in Moye, the thrust of Cruz’s testimony was
that he acted in self-defense. Cruz repeatedly testified that the
reason he shot Villanueva was because he feared for his own life.
In explaining his mental state at the time of the shooting, Cruz
did not describe any passion or other extreme emotion beyond the

17
panic and fear that he felt because he believed Villanueva was
going to kill him. Because there was no substantial evidence
to support a finding that Cruz “ ‘actually, subjectively, kill[ed]
under the heat of passion,’ ” rather than in reasonable or
unreasonable self-defense, the trial court had no duty to
instruct the jury on voluntary manslaughter under a heat of
passion theory. (People v. Moye, supra, 47 Cal.4th at p. 554.)
Moreover, even assuming the trial court erred in failing
to instruct the jury on the heat of passion theory of voluntary
manslaughter, any such error would be harmless under the
standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836
because it is not reasonably probable that Cruz would have
obtained a more favorable outcome if the jury had been so
instructed. (People v. Gonzalez (2019) 5 Cal.5th 186, 195–196
[Watson standard applies to failure to instruct on lesser included
offenses supported by substantial evidence in noncapital cases];
People v. Moye, supra, 47 Cal.4th at pp. 555–556 [same].)
In finding Cruz guilty of second degree murder, the jury
necessarily rejected his account that he shot Villanueva based
on an actual or perceived need to defend himself. As the
Supreme Court explained in People v. Moye, supra, 47 Cal.4th
at page 557: “Once the jury rejected defendant’s claims of
reasonable and imperfect self-defense, there was little if any
independent evidence remaining to support his further claim
that he killed in the heat of passion, and no direct testimonial
evidence from defendant himself to support an inference that he
subjectively harbored such strong passion, or acted rashly or
impulsively while under its influence for reasons unrelated to his
perceived need for self-defense. . . . [¶] Moreover, the jury
having rejected the factual basis for the claims of reasonable and

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unreasonable self-defense, it is not reasonably probable the jury
would have found the requisite objective component of a heat of
passion defense (legally sufficient provocation) even had it been
instructed on that theory of voluntary manslaughter.” (Italics
omitted.)
As in Moye, once the jury in this case rejected Cruz’s claims
of reasonable and unreasonable self-defense, there was no
reasonable probability that it would have found Cruz guilty of
voluntary manslaughter based on heat of passion even if it had
been instructed on that theory. Cruz therefore has failed to show
prejudicial instructional error.

Imposition of Section 12022.53, Subdivision (d)
Firearm Enhancement
Cruz argues the matter must be remanded for resentencing
because the trial court abused its discretion in imposing a 25-
year-to-life firearm enhancement on the murder count under
section 12022.53, subdivision (d) rather than a lesser-included
enhancement under subdivision (b) or (c) of the statute. We find
no abuse of discretion in the trial court’s sentencing decision.

Section 12022.53 sets forth three escalating sentence
enhancements for the personal use of a firearm in the commission
of certain enumerated felonies, including murder: a 10-year
prison term if the defendant “personally uses a firearm,” even if
the weapon is not operable or loaded (id., subd. (b)); a 20-year
term if the defendant “personally and intentionally discharges
a firearm” (id., subd. (c)); and a 25-year-to-life term if the
intentional discharge of the firearm causes “great bodily injury”
or “death, to any person other than an accomplice” (id., subd. (d)).

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In cases where multiple section 12022.53 enhancements are
found true on the same count, once the trial court imposes
punishment for the firearm enhancement with the longest term
of imprisonment, the remaining firearm enhancements on that
count must be imposed and then stayed. (Id., subd. (f); People v.
Gonzalez (2008) 43 Cal.4th 1118, 1123.)
Effective January 1, 2018, the Legislature amended section
12022.53, subdivision (h), to give trial courts discretion to strike
or dismiss firearm enhancements “in the interest of justice
pursuant to Section 1385.” (§ 12022.53, subd. (h), as amended
by Stats. 2017, ch. 682, § 2.) In deciding whether to strike or
dismiss a firearm enhancement, a trial court is required to
consider the factors bearing on its section 1385 discretion,
including “the rights of the defendant, the interests of society
represented by the People, and individualized considerations
pertaining to the defendant and his or her offenses and
background.” (People v. Rocha (2019) 32 Cal.App.5th 352, 359.)
A “ ‘court’s discretionary decision to dismiss or to strike a
sentencing allegation under section 1385 is’ reviewable for abuse
of discretion.” (People v. Carmony (2004) 33 Cal.4th 367, 373;
accord, People v. Pearson (2019) 38 Cal.App.5th 112, 116.)
“In reviewing for abuse of discretion, we are guided by two
fundamental precepts. First, ‘ “[t]he burden is on the party
attacking the sentence to clearly show that the sentencing
decision was irrational or arbitrary. [Citation.] In the absence
of such a showing, the trial court is presumed to have acted to
achieve legitimate sentencing objectives, and its discretionary
determination to impose a particular sentence will not be set
aside on review.” ’ [Citations.] Second, a ‘ “decision will not be
reversed merely because reasonable people might disagree.

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‘An appellate tribunal is neither authorized nor warranted in
substituting its judgment for the judgment of the trial judge.’ ” ’
[Citations.] Taken together, these precepts establish that a
trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree
with it.” (Carmony, at pp. 376–377.)

In connection with the murder count, the jury found true
the firearm enhancement allegations under section 12022.53,
subdivisions (b), (c), and (d). In sentencing Cruz on this count,
the trial court imposed the 25-year-to life firearm enhancement
under section 12022.53, subdivision (d) and stayed the remaining
firearm enhancements pursuant to section 12022.53, subdivision
(f). On appeal, Cruz asserts the trial court abused its discretion
in declining to strike or dismiss the section 12022.53, subdivision
(d) enhancement in favor of one of the lesser-included firearm
enhancements found true by the jury.
As Cruz points out, appellate courts are currently split on
whether the trial court has discretion to impose a 10-year or 20-
year firearm enhancement under section 12022.53, subdivision
(b) or (c) where only a 25-year-to-life firearm enhancement under
section 12022.53, subdivision (d) was alleged and found to be
true. (Compare People v. Morrison (2019) 34 Cal.App.5th 217
[courts may impose uncharged lesser enhancements] with People
v. Tirado (2019) 38 Cal.App.5th 637, review granted Nov. 13,
2019, S257658 [courts may not]; People v. Garcia (2020) 46
Cal.App.5th 786, review granted June 10, 2020, S261772 [same].)
In this case, however, the People alleged all three section

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12022.53 enhancements on the murder count, and the jury found
each of those enhancements to be true. Moreover, the record
reflects that the trial court understood it had the discretion to
strike or dismiss any of the section 12022.53 enhancements in the
interest of justice, and that it expressly declined to do so.
At the January 15, 2020 sentencing hearing, defense
counsel specifically asked the trial court to strike each of the
three firearm enhancements based on the recent amendment to
section 12022.53, or alternatively, to impose only the 10-year
firearm enhancement under section 12022.53, subdivision (b).
After hearing the argument of counsel, the trial court stated: “All
right. Obviously I presided over the trial. I heard the case. I
heard the evidence. I was able to observe the witnesses who
testified including Mr. Cruz. And the court is aware, the record
should be clear the court is aware, of its discretion. I do have
that discretion now to strike any firearm enhancement.
However, the court is going to deny the request and deny the
motion to strike the firearm enhancements for the following
reasons.” Contrary to Cruz’s claim on appeal, there is nothing in
the record to suggest that the trial court was unaware of its
discretion to strike any or all firearm enhancements under
section 12022.53, subdivision (h).
Cruz also asserts the trial court abused its discretion in
imposing the section 12022.53, subdivision (d) enhancement
given the circumstances of the offense, his lack of a criminal
record, and his status as an upstanding citizen and father of
young children. However, the record shows the trial court
considered relevant aggravating and mitigating factors in
declining to strike any of the firearm enhancements on the
murder count. (See Cal. Rules of Court, rules 4.421, 4.423,

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4.428(b).) In particular, the trial court noted that, while Cruz’s
lack of a criminal record was a mitigating circumstance that the
court considered, there were several aggravating circumstances,
including that the victim was particularly vulnerable, multiple
shots were fired, and Cruz fled the scene of the shooting. Cruz
takes issue with the trial court’s statements that the victim
“didn’t do anything to instigate” the offense and that the manner
in which Cruz carried out the murder “would indicate some
planning, sophistication, and professionalism.” However, in
determining whether the trial court abused its discretion in
refusing to strike or dismiss an enhancement, the relevant
inquiry is whether its sentencing decision was “so irrational
or arbitrary that no reasonable person could agree with it.”
(People v. Carmony, supra, 33 Cal.4th at p. 377.) Here, the
totality of the record at sentencing demonstrates that the trial
court weighed the relevant factors and made an informed
sentencing decision that was neither irrational nor arbitrary.
There was no abuse of discretion.

Presentence Custody Credits
Lastly, Cruz asserts, and the People agree, that the
sentencing minute order and the abstract of judgment do not
accurately reflect his presentence custody credits. At the
sentencing hearing, the trial court awarded Cruz 777 days
of actual custody credit. However, the minute order for the
sentencing hearing fails to identify any custody credit, and the
abstract of judgment incorrectly lists Cruz’s actual custody credit
as “000.” Accordingly, the sentencing minute order and abstract
of judgment must be modified to reflect that Cruz was awarded
777 days of actual custody credit at sentencing. (See People v.
Mitchell (2001) 26 Cal.4th 181, 185–186 [when there is a

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discrepancy between the court’s oral pronouncement and the
minute order or abstract of judgment, the oral pronouncement
controls].)

DISPOSITION

The judgment is modified to reflect an award of 777 days
of actual custody credit. As modified, the judgment is affirmed.
The superior court is directed to prepare an amended abstract of
judgment and to forward a certified copy to the Department of
Corrections and Rehabilitation.
NOT TO BE PUBLISHED.

ADAMS, J.*

We concur:

LAVIN, Acting P. J.

EGERTON, J.

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

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