Filed 7/28/21 P. v. Xotoy CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
THE PEOPLE, B303336
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. KA112509)
v.
SANTOS LEONEL XOTOY,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert Serna, Judge. Affirmed.
Nancy J. King, 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, Zee Rodriguez, Supervising Deputy
Attorney General, and Charles J. Sarosy, Deputy Attorney
General, for Plaintiff and Respondent.
____________________
Santos Leonel Xotoy suspected Higinio Gonzalez of seeing
Xotoy’s ex-partner Elvia Lopez Gomez. Xotoy went to where
Gonzalez worked, took him to the nearby alley, and shot him to
death. Xotoy appeals his murder conviction on three grounds.
I
The first issue concerns heat of passion, a doctrine that can
reduce murder to voluntary manslaughter. This was Xotoy’s
defense at trial, which the jurors did not accept; instead their
verdict was murder. The court gave the jury the right heat-of-
passion instruction, but Xotoy argues the prosecutor misdescribed
the legal standard during her closing argument. Without
deciding that point, we reject this argument. Any error was
harmless.
A
People v. Beltran (2013) 56 Cal.4th 935, 954–957 (Beltran)
is the governing case. Beltran held a prosecutor “muddied the
waters” making the following argument to a properly-instructed
jury. (Id. at p. 954.) The text of the prosecutor’s argument is
garbled and tangential, so we italicize some key words.
“And the provocation has to be such that a person of
average disposition to act with passion rather than judgment
[sic]. We would have probably millions more homicides a year if
everyone could use words that may be—although I don’t
disbelieve. I don’t agree that this is what happened. It’s an
illogical interpretation of the facts. You stub your toe. You’re
angry, might cuss a few words. You don’t go out and kill
somebody. [¶] We’ve all gotten cut off in traffic. We say the few
choice words, ‘Oh, my God.’ We don’t gun the pedal and start
trying to hit the car in front of us to try to kill the person who cut
us off. Can you imagine if that was permissible, ‘Oh, my God, I
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acted . . . without judgment and rash. I got so angry. I was
insulted.’ That’s not the standard. It’s a reasonable person, and
you’re all reasonable people and you know that it’s illogical that
even these words were uttered.” (Beltran, supra, 56 Cal.4th at p.
943, fn. 5, italics added.)
The Beltran decision held the prosecutor’s examples—that
reasonable people would not kill if they stub their toe or get cut
off in traffic—seemed to suggest the jury should consider the
ordinary person’s conduct and whether such a person would kill.
(Beltran, supra, 56 Cal.4th at p. 954.) This standard is incorrect.
(Ibid.) Rather, the proper standard focuses on whether a person
of average disposition would be induced to react from passion and
not from judgment. (Id. at p. 939.)
Beltran held the error there was harmless under People v.
Watson (1956) 46 Cal.2d 818, 836 (Watson), which requires a
defendant to show a more favorable result was reasonably
probable absent the error. (Beltran, supra, 56 Cal.4th at pp. 955–
957.)
Turning now to this case, Xotoy’s prosecutor made these
three statements in her closing argument:
“The defense wants you to believe that an average person
would do exactly what the defendant did, would act exactly how
the defendant acted over a Facebook posting.”
“The defendant believes that all 15 of you are going to buy
this idea that he was so in love, so desperate, so devastated that
he had to kill a man.”
“The standard . . . to get heat of passion is, number one, you
have to believe that there was enough provocation there, that the
defendant was provoked. Then not only that you have to pass the
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standard that an average person would act the same way that the
defendant would have acted under passion.”
Xotoy’s counsel did not object to these statements, and he
has therefore forfeited this issue. Moreover, there is no merit to
his argument. We assume without deciding these three
statements transgressed Beltran. Even so, Xotoy has not shown
a more favorable result was reasonably probable absent the
assumed error.
Following Beltran, we examine the evidence in the case
under the Watson standard.
Two eyewitnesses to the murder testified: Lopez and
Xotoy.
1
Lopez testified as follows. She had been in a four-year
relationship with Xotoy. They had three children together. On
April 20, 2016, Xotoy ended the relationship, saying he did not
love her anymore. He made Lopez and the children leave their
apartment. They moved in with a downstairs neighbor.
During their relationship, Xotoy called Lopez abusive and
demeaning names. Xotoy would sleep in the bed but made Lopez
and their children sleep together on a blanket on the floor
because Xotoy said Lopez “didn’t even deserve to sleep in the
bed.” After rejecting her, Xotoy told Lopez that she would “need
to walk on [her] knees from the door all the way inside the house”
to win him back.
Xotoy then demanded Lopez’s phone, where he saw
messages between Lopez and Gonzalez, one of Lopez’s coworkers.
Lopez bought Amway products from Gonzalez. Xotoy became
suspicious Lopez and Gonzalez had a romantic relationship.
Lopez denied it. Xotoy said he would not be made a fool.
4
About a week before the shooting, Xotoy came to Baby Blue
Fashion, the clothing factory where Lopez and Gonzalez worked.
Xotoy asked Gonzalez whether he and Lopez had a romantic
relationship. Gonzalez denied it.
May 9, 2016, was the day of the shooting.
Xotoy called Lopez before she went to work that day. Xotoy
was crying and said she and the children could move back into
the apartment because he was going to leave for Guatemala. She
told him to calm down, take a shower, and go to work.
Fernando Contreras Catarino testified. He also worked at
Baby Blue Fashion. That day, Catarino saw Xotoy riding a
bicycle back and forth in front of the factory at 6:00 a.m. Xotoy
wore a sweatshirt with the hood up. Lopez and Gonzalez both
arrived around 7:30 a.m.
Shortly after that, Xotoy phoned Lopez and told her to give
the phone to Gonzalez or to tell him to come outside. She
refused. About 15 minutes after Gonzalez arrived, Xotoy came
into the factory. He walked to the table where Gonzalez was
working and repeatedly told him to come outside. The other
workers at the table—Catarino and Artemio Gonzalez, who was
Gonzalez’s cousin—said Xotoy’s tone was normal.
Catarino told Gonzalez not to go outside, but Gonzalez said
he was going to see what Xotoy wanted.
Gonzalez followed Xotoy out, but on the way stopped at
Lopez’s workstation and told her to come as well. Xotoy led them
to an area near an alley outside the factory.
Xotoy again asked Gonzalez whether he and Lopez had a
romantic relationship. Gonzalez said no and that he had no
interest in Lopez because she had kids.
5
Xotoy pulled a gun from his waistband and said, “[I]f you’re
not going to tell me the truth, then now you’re going to tell me
the truth.”
Xotoy told Gonzalez, “now you’re going to die.”
Lopez got between Xotoy and Gonzalez. She grabbed
Xotoy’s wrist and said he would have to kill her first.
Xotoy fired a shot into the ground between Lopez’s feet.
She moved aside and screamed for help.
Xotoy stepped toward Gonzalez and shot him three times.
Gonzalez was hit in the head, wrist, and abdomen.
Gonzalez collapsed and died at the scene.
Xotoy tried to flee. Lopez grabbed Xotoy in a bear hug from
behind and yelled for help. Lopez’s coworkers arrived and held
Xotoy until police arrived.
2
At trial, Xotoy gave a somewhat different account. He
claimed Lopez had broken up with him. He admitted they “had
words,” but denied calling her some of the names she had claimed
he called her.
Xotoy had suspected Lopez and Gonzalez were having an
affair two months before the shooting because Lopez began
mentioning Gonzalez frequently and “had a change in her
attitude in [her] relationship” with Xotoy. When he looked
through her phone after the breakup, there was an image from
Gonzalez with the words: “The distance separates us from me
giving you a kiss but the willingness to give you a kiss is right
there right now.”
About 10 or 12 days before the shooting, Xotoy went to
Gonzalez and said he suspected Gonzalez was in a relationship
with Lopez. Gonzalez said he just sold Lopez products, but Xotoy
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countered that the messages were personal, not about sales.
Xotoy said, “leave my wife alone.” Xotoy said Gonzalez’s response
was, “I don’t give a fuck about your marriage,” or “I don’t give a
fuck what you’re telling me.” Xotoy left, convinced Lopez was
having an affair with Gonzalez.
Although Xotoy initially testified Lopez had not confessed
to an affair with Gonzalez, further questioning from his counsel
prompted him to change his answer and testify Lopez confessed
to the relationship the night before the shooting. Xotoy was
upset because he thought he was losing his family.
May 9, 2016, was the fatal day.
Xotoy went into the Baby Blue Fashion factory that day
because he wanted to tell Gonzalez “to leave [his] woman alone.”
Xotoy brought a gun because he feared Gonzalez; the last time
they spoke, Gonzalez suggested they fight.
Lopez and Gonzalez followed Xotoy out of the factory. She
told Gonzalez, “Don’t tell this man anything.” Lopez and
Gonzalez were smiling and laughing with each other behind him.
Xotoy thought they were laughing at him.
Gonzalez spoke to Xotoy: “[L]et’s see. Come. Are you
scared? Where do you think you are going?”
Xotoy did not describe Gonzalez’s tone, nor did Xotoy claim
Gonzalez accompanied his words with threatening gestures or a
taunting posture. Yet Xotoy testified he took these words as a
challenge or a threat.
Xotoy testified he felt angry but he remained “in full
control” of himself.
Then Gonzalez told Xotoy, “It’s not my fault. She’s the one
that texts me. She calls me. And it seems to be that [Lopez] has
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found what she wants in me.” Gonzalez added, “I have what she
wants.”
No evidence established or suggested Gonzalez supposedly
made these statements in anything besides an ordinary
conversational tone. Xotoy did not claim Gonzalez was shouting
or was emotional in any way.
Xotoy “became angry, humiliated, jealous and . . . [his]
mind was like blocked.”
Xotoy drew his gun and asked Gonzalez “for respect, for
him to respect my pain.”
When Xotoy pulled the gun, Lopez grabbed his hand. She
“lowered my hand and a shot was fired due to the fact I was
struggling with her.” Xotoy illustrated the struggle on the stand
by pulling his right arm downward. The shot hit the ground
between Lopez’s feet.
Xotoy became angrier because Lopez was defending
Gonzalez. He felt angry, stupid, and humiliated. “[H]ow far I
had gone for her, how far I had gone with that pain.” He saw a
vision of one of his children. “My vision was darkened. My mind
went completely dark and I lost my—I lost all memory and I lost
control.”
Xotoy shot Gonzalez three times.
Xotoy admitted he did not tell the police about the
statements he claimed Gonzalez made. When asked whether the
reason he was “coming up with those statements today is because
[he was] in trial in front of these jurors,” Xotoy answered yes.
B
The assumed error was harmless under Beltran and
Watson.
8
The “evidence of provocation was both weak and
contradicted.” (Beltran, supra, 56 Cal.4th at p. 956.) A
reasonable person would not “be induced to react from passion”
rather than from judgment (id. at p. 939) because Lopez and
Gonzalez were talking and laughing with each other while
walking behind the reasonable person.
Xotoy claimed he took it as a threat when Gonzalez said
“[L]et’s see. Come. Are you scared? Where do you think you are
going?” A reasonable person would not take these words as a
threat. These words would not prompt a reasonable person to
react from passion instead of judgment.
When Lopez said, “Don’t tell this man anything,” Xotoy felt
“a lot of anger, but I was also in full control of myself.” In other
words, Xotoy effectively testified these words did not make him
react from passion instead of judgment.
Xotoy testified the triggering event was Gonzalez telling
him the affair with Lopez was not Gonzalez’s fault, because it
was Lopez who had texted and phoned him, because Gonzalez
had what Lopez wanted. Xotoy drew his weapon, prompting
Lopez to try to push the barrel toward the ground.
Lopez’s action legally cannot have been provocation for
Xotoy to shoot Gonzalez; Lopez was not Xotoy’s victim. (People v.
Verdugo (2010) 50 Cal.4th 263, 293 [the provocation must be
caused by the victim; victim must taunt the defendant or
otherwise initiate the provocation].)
Xotoy’s claim is, when a man hears his romantic rival say
she wants me not you, that suffices to drive a reasonable person
to react in passion rather than from judgment. No defendant,
however, may set up his own standard of conduct and excuse
himself because his passions actually were aroused unless the
9
circumstances are sufficient to arouse the passions of the
ordinarily reasonable person. (Beltran, supra, 56 Cal.4th at p.
950.) These circumstances fall short.
“This recitation is not only uncorroborated, it is at odds
with a great deal of other evidence.” (Beltran, supra, 56 Cal.4th
at p. 956.) Xotoy said he would not be made a fool. Before the
shooting, he told Lopez he was going back to Guatemala. Xotoy
took a gun and traveled to Gonzalez’s workplace to confront
Gonzalez. Xotoy arrived early: 90 minutes before the workday
started. When Gonzalez arrived, Xotoy summoned him from the
factory to the nearby alley. Xotoy was calm. In the alley, Xotoy
told Gonzalez, “now you are going to die.” After his arrest, Xotoy
spoke to police but did not relate Gonzalez’s supposedly
provoking words. At trial, Xotoy agreed he was “coming up with
those statements [Xotoy was attributing to Gonzalez] because
[Xotoy was] in trial in front of these jurors.”
Xotoy has not discharged his burden of showing a more
favorable result was reasonably probable absent the error we
have assumed. (See Watson, supra, 46 Cal.2d at p. 836.)
II
Xotoy’s second argument is his counsel provided ineffective
assistance of counsel by failing to raise any argument at the
sentencing hearing. This argument fails because Xotoy does not
show prejudice.
Xotoy argues that, because the trial court had discretion to
strike the firearm allegations under Penal Code sections 1385
and 12022.53, subdivision (h), his counsel should have filed a
brief or provided argument. However, the trial court was aware
of its discretion and stated it found no reason to exercise it.
Xotoy does not identify any arguments or factors his counsel
10
could have raised to induce the trial court to exercise its
discretion. Xotoy has not shown prejudice.
III
Xotoy makes an argument pursuant to People v. Dueñas
(2019) 30 Cal.App.5th 1157. He concedes he did not object to the
fines and fees in the trial court. He thus forfeited this argument.
(People v. Frandsen (2019) 33 Cal.App.5th 1126, 1153–1155.)
DISPOSITION
We affirm the judgment.
WILEY, J.
We concur:
GRIMES, Acting P. J.
STRATTON, J.
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