Filed 3/9/22 P. v. Cardin-Heredia CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent, A160680
v.
GABRIEL ANTHONY (Sonoma County
CARDIN-HEREDIA, Super. Ct. No. SCR-715819-1)
Defendant and Appellant.
This is an appeal from judgment after a jury convicted defendant
Gabriel Cardin-Heredia of voluntary manslaughter and found true the
allegation that he personally used a deadly weapon (a knife) when
committing the crime. The trial court sentenced him to an 11-year upper
term sentence for manslaughter plus one additional year for knife use.
Defendant challenges the judgment on the grounds that the trial court erred
by giving CALCRIM No. 362, the standard jury instruction on consciousness
of guilt based on a false statement. Defendant also seeks resentencing based
on ameliorative changes to our determinate sentencing law (Pen. Code,
§ 1170)1 effective January 1, 2022, that limit trial courts’ discretion to impose
All statutory citations are to the Penal Code unless otherwise
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indicated.
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the upper term. We remand the matter for resentencing under the newly
amended version of section 1170 but otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On December 18, 2019, an information was filed charging defendant
with first degree murder. It was further alleged he personally used a deadly
weapon (a knife) to commit the crime. This charge and allegation stemmed
from the stabbing of Shaun Avila on May 9, 2018, outside a house on Slater
Street in Santa Rosa, in which several women who were associated with both
Avila and defendant lived.
I. The Slater Street Residence.
The primary resident of the Slater Street house at the time of the
stabbing was T.B. Avila and T.B. had an eight-year-old daughter. While the
pair were no longer a couple, they remained best friends. T.B. also had an
18- or 19-year-old daughter named J.M., who considered Avila to be her
stepfather. Avila did not live at the Slater Street house, but he spent a lot of
time there.
Defendant’s girlfriend, M.L., also lived at the Slater Street house with
her mother, T.D. In addition, defendant’s half brother, Martinez, was dating
yet another Slater Street resident, J.H. J.H. previously dated Avila, and the
pair had a two-year-old daughter. Avila still had feelings for J.H. although
they broke up in June 2017. He was jealous of J.H.’s relationship with
Martinez.
II. The Easter Incident (2018).
On April 1, 2018, T.B. hosted an Easter party at the Slater Street
house attended by defendant, Martinez, their mother (Angela), Avila and
others. By evening, they were all intoxicated. At some point, Avila and
Martinez got into an argument about J.H. This argument did not turn
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physical. However, less than an hour later, defendant began arguing with
Avila. Defendant was annoyed that Avila and a neighbor were dancing with
his mother. Defendant removed his shirt as if ready to fight Avila. Martinez
joined in, enraging Avila by mentioning his relationship with J.H.
T.B. managed to separate the men, and defendant walked down the
driveway toward his car. However, defendant returned a short time later
with Martinez, armed with a knife. Defendant’s girlfriend, M.L., jumped on
his back to stop him, but he passed the knife to Martinez. Avila was yelling
as he walked toward defendant and Martinez. J.M. (T.B.’s daughter)
intervened and managed to diffuse the situation, and defendant and
Martinez left.
Following this incident, the relationship between defendant, Martinez
and Avila worsened. Avila believed that defendant and Martinez were trying
to “hurt him and gang up on him” and that “it wasn’t gonna be good” if they
saw one another. Defendant, in turn, expressed that he wanted no issues
with Avila but that it “wasn’t going to be good” if they met up. Defendant
began to avoid the Slater Street house unless he was picking up or dropping
off M.L.
III. The Fatal Stabbing.
On the evening of May 9, 2018, defendant, M.L., and Martinez drove to
the Slater Street house in order for M.L. to retrieve some of her belongings.
As M.L. exited the car, Avila, J.M. and J.M.’s boyfriend were backing out of
the driveway. Avila, who had been drinking, jumped out of the car and
approached defendant’s car, raising his hands and gesturing as if he wanted
to fight. According to J.M., Avila asked the men, “ ‘Are you guys going to
jump me now?’ ” Avila added, “Come on, motherfucker, let’s do this right
now. What, are you scared?”
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J.M. heard defendant respond, “ ‘Let’s not do this right now.’ ” M.L.
then heard Avila say, “ ‘Do you want to die today?’ ” J.M. told defendant and
Martinez to leave.
A surveillance video (shown to the jury) captured defendant and
Martinez exiting defendant’s car several times to exchange words with Avila.
At one point, after they returned to defendant’s car, Avila again approached
the car, possibly in response to something Martinez said. Avila kicked the
driver’s side door, angering defendant and Martinez. Defendant jumped out
of the car and stabbed Avila five times: four times in the torso and once in
the arm.
Defendant then returned to his car as Martinez and Avila continued to
fight. Avila fell to the ground, and at some point Martinez jumped on top of
Avila, punching him. Defendant drove his vehicle toward the men, jumped
out again, and stabbed Avila a final (sixth) time, in the head.
Defendant and Martinez left the scene. J.M. and her boyfriend drove
Avila, who was bleeding heavily and having difficulty breathing, to the
hospital. Avila later died from multiple stab wounds, which were found on
the right side of his head, right arm, left chest, and back.
According to M.L., who was inside during the stabbing, defendant was
remorseful and sad as they drove away. Defendant told M.L. that he stabbed
Avila because he was fearful for his own safety and that of Martinez, who
was being choked by Avila. Defendant told M.L., “ ‘I’m so, so sorry. I never
wanted this to happen.’ ” At defendant’s direction, M.L. disposed of the knife
in a nearby trash can.
IV. The Investigation.
Later in the evening on May 9, 2018, Officer Badger was dispatched to
defendant’s house. The officer, with the help of defendant’s mother, spoke to
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defendant on the phone. Defendant told the officer he was on the way home.
However, defendant did not return home and was apprehended the next day
driving with Martinez near the City of Tracy. Officers observed dried blood
on Martinez’s shorts but no choking marks on his throat.
V. The Defense.
Evidence revealed Avila had a violent nature. M.L. testified that
during the Easter incident, Avila threatened to strike Martinez in the head
with a mug and asked him, “ ‘Do you want to die today?’ ” Defendant tried to
diffuse the tension that day, telling Avila, “ ‘Come on, bro. I don’t want no
issues . . . .’ ” In addition, both J.H. and defendant’s mother testified to
hearing Avila make threats toward defendant and Martinez in the days
following the Easter incident. Defendant’s mother warned him to stay away
from Avila because Avila wanted to kill defendant and Martinez.
Defendant tried to avoid Avila because he was scared of him. He told
T.D. that he harbored no ill will toward Avila and just wished Avila would
“drop it . . . .”
There was further evidence regarding unrelated violent incidents
involving Avila. For example, M.L. described an incident in 2016 or 2017 at
an auto parts store. The store was closed, and Avila was “digging through
some stuff” when a man approached him, told him he should not be there,
and began recording Avila with his cell phone. Avila grabbed the man’s
phone and repeatedly punched him, knocking the man down. M.L. described
another incident when Avila almost ran down her father with his car.
J.H., who had a child with Avila, testified that he was physically
abusive toward her during their relationship and that she told this to
defendant.
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Another witness, M.S., testified regarding an incident in 2003 when she
lived next door to Avila. M.S. loaned Avila’s girlfriend money to buy diapers.
When M.S. asked for repayment of the loan, Avila hit M.S. and threatened to
kill M.S. and her husband.
A forensic psychiatrist testified about the “ ‘fight or flight’ ”
phenomenon, wherein a person under threat of immediate harm may have a
confused sense of reality that causes him or her to be more reactive and less
contemplative.
VI. Verdict, Sentencing and Appeal.
On February 3, 2020, the jury found defendant not guilty of first degree
murder but guilty of the lesser included offense of voluntary manslaughter
(§ 192, subd. (a)). The jury also found true the allegation that defendant used
a deadly weapon (a knife) when committing the offense.
On June 16, 2020, the court sentenced defendant to the upper term of
11 years in prison plus one year for the enhancement. On August 5, 2020,
defendant filed a timely notice of appeal.
On December 21, 2021, after the parties filed their appellate briefs,
defendant filed a supplemental brief seeking resentencing under a legislative
change to the determinate sentencing law (§ 1170) that became effective
January 1, 2022. The People filed an answering brief in which they conceded
that a remand to the trial court for resentencing under the new law was
appropriate.
DISCUSSION
Defendant raises two claims on appeal: (1) the trial court erred in
instructing the jury per CALCRIM No. 362 that it could infer his
consciousness of guilt based on evidence he made a false statement to M.L.
shortly after the stabbing; and (2) the amendatory version of section 1170
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that became effective January 1, 2022, applies retroactively to his case and
requires resentencing. Only defendant’s second claim has merit.
I. Instruction on CALCRIM No. 362 was proper.
Defendant contends the trial court prejudicially erred by giving
CALCRIM No. 362 to the jury because it lacked evidentiary support.
CALCRIM No. 362, as given to this jury, stated: “If the defendant made a
false or misleading statement before this trial relating to the charged crime,
knowing the statement was false or intending to mislead, that conduct may
show he was aware of his guilt of the crime and you may consider it in
determining his guilt. [¶] If you conclude that the defendant made the
statement, it is up to you to decide its meaning and importance. However,
evidence that the defendant made such a statement cannot prove guilt by
itself.” The following record is relevant.
The prosecution requested several instructions on consciousness of
guilt based on evidence that defendant (1) took flight after the stabbing
(CALCRIM No. 372), (2) asked M.L. to discard the knife he used to stab Avila
(CALCRIM No. 371), and (3) falsely told M.L. in the car after the incident
that he stabbed Avila because Avila was choking Martinez and he feared
Avila would kill Martinez (CALCRIM No. 362).
Defense counsel objected to giving CALCRIM No. 362, arguing that
defendant’s statements were not made to law enforcement and the evidence
did not show they were false. The trial court overruled counsel’s objection,
reasoning that, “ultimately, what the second half of the instruction says
specifically is ‘If you conclude that the defendant made the statement, it is up
to you to decide its meaning and importance. However, evidence that the
defendant made such a statement cannot prove guilt by itself.’ Ultimately,
the Court finds that it is a triable issue of fact for the Jury to determine
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whether or not there was a false statement made or not.” The trial court’s
ruling was appropriate as substantial evidence supported the giving of
CALCRIM No. 362 to the jury.
“ ‘False statements regarding incriminating circumstances constitute
evidence which may support an inference of consciousness of guilt.
[Citations.]’ ” (People v. Flores (2007) 157 Cal.App.4th 216, 221.) A case’s
evidence warrants the giving of an instruction on consciousness of guilt
where there is “some evidence in the record that, if believed by the jury,
would sufficiently support the suggested inference.” (People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 102.) We review a trial court’s decision to give
an instruction de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1206.)
Here, there is evidence in the record that, if believed by the jury, would
sufficiently support the inference of defendant’s consciousness of guilt based
on his making false statements. M.L. testified that, when she returned to his
car just after the stabbing and asked what happened, defendant told her
(among other things) that he feared for his and Martinez’s lives because Avila
would not stop choking Martinez even as Martinez turned blue and begged
for help. Yet, testimony and video evidence showed defendant had already
stabbed Avila five times (four times in the torso and once in the arm) when
Avila and Martinez began their physical altercation. The video reflected that
Avila and Martinez were “rolling around” and, at some point, Avila managed
to climb on top of Martinez, prompting defendant to return from his vehicle
and stab Avila the sixth time, in the head.
Based on this evidence, the jury had reasonable grounds to conclude
defendant made false statements to M.L. that reflected his consciousness of
guilt. (See People v. Bowman (2011) 202 Cal.App.4th 353, 366 [“trial court
properly gives consciousness of guilt instructions where there is some
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evidence in the record that, if believed by the jury, would sufficiently support
the inference suggested in the instructions”]; People v. McGowan (2008) 160
Cal.App.4th 1099, 1104 [“trial court properly left it for the jury to determine
whether defendant’s statement to police was false or deliberately misleading,
and if so, what weight should be given to that evidence”].) Moreover, even if
we could find the giving of CALCRIM No. 362 erroneous (we cannot),
defendant suffered no prejudice. “The inference of consciousness of guilt from
willful falsehood or fabrication or suppression of evidence is one supported by
common sense, which many jurors are likely to indulge even without an
instruction.” (People v. Holloway (2004) 33 Cal.4th 96, 142.) “CALCRIM No.
362 limits the reach of any adverse inference both by telling the jury that it
decides the ‘meaning and importance’ of the evidence and by telling the jury
the making of a willfully false statement ‘cannot prove guilt by itself.’
(CALCRIM No. 362.) CALCRIM No. 362 . . . is [thus] designed to benefit the
defense, ‘ “admonishing the jury to circumspection regarding evidence that
might otherwise be considered decisively inculpatory.” [Citation.]’ (People v.
Covarrubias (2016) 1 Cal.5th 838, 908 [citations].) And because the evidence
cannot prove guilt by itself, a jury would understand that the consciousness
of guilt—however deep it ran—was not the equivalent of a confession.
[Citation.] Thus, a jury would understand both that false statements were
not the equivalent of a confession and that they were not themselves
sufficient to prove guilt of the charged crimes.” (People v. Burton (2018) 29
Cal.App.5th 917, 925.)
Accordingly, the trial court’s decision stands.
II. Newly amended section 1170, subdivision (b) applies.
Effective January 1, 2022, our determinate sentencing law (§ 1170) was
amended in several fundamental ways. (See Stats. 2021, ch. 731, § 3; Stats.
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2021, ch. 695, § 6.) Relevant here, Senate Bill No. 567 amended section 1170,
subdivision (b) by making the middle term the presumptive sentence for a
term of imprisonment unless certain circumstances exist. (Stats. 2021, ch.
731, § 1.3, adding § 1170, subd. (b)(1) & (2).)2 Under newly amended section
1170, a trial court may impose an aggravated prison term only if “there are
circumstances in aggravation of the crime that justify the imposition of a
term of imprisonment exceeding the middle term, and the facts underlying
those circumstances have been stipulated to by the defendant, or have been
found true beyond a reasonable doubt at trial by the jury or by the judge in a
court trial . . . .” (§ 1170, subd. (b)(1), (2).) Based on this new law, defendant
contends his upper term sentence for manslaughter cannot stand.
The People correctly concede the amended version of section 1170,
subdivision (b) that became effective on January 1, 2022, applies retroactively
in this case as an ameliorative change in the law applicable to all nonfinal
convictions on appeal. (People v. Superior Court (Lara) (2018) 4 Cal.5th 299,
308.) California law requires that we “assume, absent evidence to the
contrary, that the Legislature intended an ‘amended statute to apply to all
defendants whose judgments are not yet final on the statute’s operative
2 Under this change in law, a trial court “may impose a sentence
exceeding the middle term only when there are circumstances in aggravation
of the crime that justify the imposition of a term of imprisonment exceeding
the middle term, and the facts underlying those circumstances have been
stipulated to by the defendant, or have been found true beyond a reasonable
doubt at trial by the jury or by the judge in a court trial. Except where
evidence supporting an aggravating circumstance is admissible to prove or
defend against the charged offense or enhancement at trial, or it is otherwise
authorized by law, upon request of a defendant, trial on the circumstances in
aggravation alleged in the indictment or information shall be bifurcated from
the trial of charges and enhancements. The jury shall not be informed of the
bifurcated allegations until there has been a conviction of a felony offense.”
(Stats. 2021, ch. 731, § 1.3.)
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date.’ ” (People v. Lopez (2019) 42 Cal.App.5th 337, 341.) “For the purpose of
determining the retroactive application of an amendment to a criminal
statute, the finality of a judgment is extended until the time has passed for
petitioning for a writ of certiorari in the United States Supreme Court.”
(People v. Lopez, supra, 42 Cal.App.5th at pp. 341–342, citing People v. Vieira
(2005) 35 Cal.4th 264, 305–306.)
Accordingly, because the new version of section 1170, subdivision (b)
constitutes an ameliorative change in our determinate sentencing law and
the judgment in this case is not yet final, defendant’s upper term sentence
must be vacated and the matter returned to the trial court for resentencing.
DISPOSITION
The matter is remanded to the trial court for resentencing under the
amendatory version of section 1170, subdivision (b) effective January 1, 2022.
The judgment is otherwise affirmed.
_________________________
Jackson, P. J.
WE CONCUR:
_________________________
Needham, J.
_________________________
Burns, J.
A160680/People v. Gabriel Anthony Cardin-Heredia
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