P. v. Chinchilla

















Filed 12/27/12 P.
v. Chinchilla CA4/3













>NOT TO BE PUBLISHED IN
OFFICIAL REPORTS



California Rules of Court, rule 8.1115(a), prohibits
courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115>.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA



FOURTH APPELLATE DISTRICT



DIVISION THREE




>

THE PEOPLE, Plaintiff and Respondent, v. BYRON CHRISTOPHER CHINCHILLA et al., Defendants and Appellants.

G045111 (Super. Ct. No. 08CF3485) O P I N I O N

Appeal
from a judgment of the Superior Court of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Orange
County, Frank F. Fasel, Judge.
Affirmed in part, reversed in part, and remanded for resentencing.

Ellen
M. Matsumoto, under appointment by the Court of Appeal, for Defendant and
Appellant, Byron Christopher Chinchilla.

Thomas
Owen, under appointment by the Court of Appeal, for Defendant and Appellant,
Jorge David Sotelo.

Kamala
D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and James
H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.

Byron
Christopher Chinchilla and Jorge David Sotelo appeal from judgments after a
jury convicted them of four counts of attempted
murder, shooting at an occupied motor vehicle, four counts of assault with a
semiautomatic firearm, second degree robbery, street terrorism, being an active
participant in a criminal street gang and having a concealed firearm in the
vehicle, and receiving stolen property, and found true street terrorism and
firearm enhancements. Chinchilla
argues: (1) insufficient evidence
supports his conviction for receiving stolen property; (2) the natural and
probable consequence jury instruction was erroneous; and (3) there were
sentencing errors. Sotelo contends: (1) insufficient evidence supports his
convictions for premeditated and deliberate attempted murder; (2) the trial
court erred in failing to instruct the jury on imperfect self-defense and his
defense counsel was ineffective for failing to request the instruction; and (3)
there were sentencing errors. They join
in each other’s argument to the extent they accrue to their benefit. As we explain below, we agree with Sotelo’s
jury instruction claim but conclude he was not prejudiced. We also agree with their sentencing
claims. We affirm in part, reverse in
part, and remand for resentencing.

FACTS

Angel
Huitron Novoa (Angel), Efrain Novoa Huitron (Efrain),

Michael Ponce, and Jonathan De La Torre arrived at a house party in
Efrain’s red

Dodge Charger. Their friend,
Jose Gonzales, and three others arrived in a gray

Honda Accord. After the
police ended the party, the men stood in the street deciding what to do
next. Chinchilla and Sotelo approached
the men. Chinchilla punched Gonzales and
demanded his cellular telephone.
Gonzales refused. When Angel
stepped forward to intervene, Sotelo pulled a black semi-automatic handgun from
his waistband and chambered a round.
Sotelo ordered the victims to “‘get back[,]’” which they did. While Sotelo held the gun on the victims,
Chinchilla searched all the victims’ pockets.
Chinchilla manhandled the victims and forced Angel’s keychain from his
pocket. Chinchilla grabbed De La Torre’s
baseball cap from his head and put it on.
As Sotelo and Chinchilla left, Sotelo said, “You bitches just got
smacked up” by the “Playboy[s].”

As
Chinchilla and Sotelo walked away, Angel, Efrain, Ponce, and

De La Torre got into Efrain’s car and followed them because they did
not want them to get away. Efrain
remained about 65 feet behind them while driving about

five to 10 miles per hour.
Sotelo turned around and fired four shots at Efrain’s car. Efrain made a U-turn and drove back to the
area of the party because he knew there was a police officer nearby.

Officer
Sergio Gutierrez heard the four gun shots.
Moments later, Gutierrez saw the victims pull up in their car, which had
bullet holes in it. There was a bullet
hole above the driver’s side windshield and in the tire. The victims gave Gutierrez descriptions and
the location of their attackers.
Gutierrez went to the location and with other officers stopped a blue
Toyota Camry. Gutierrez saw a gun, later
determined to have been stolen, fall from the rear passenger door where
Chinchilla was sitting. Chinchilla was
wearing De La Torre’s baseball hat.

When
Gutierrez told Chinchilla he had been implicated in a crime, Chinchilla
responded he “didn’t know what [Gutierrez] was talking about.” Gutierrez asked Chinchilla how he obtained
the baseball hat, and Chinchilla responded, “he couldn’t remember.” When Gutierrez told Chinchilla he saw him
drop the gun from the car, Chinchilla said, “he didn’t know what [Gutierrez]
was talking about.”

Forensic analysis revealed Sotelo but not Chinchilla had gunshot
residue on his hands. The four bullet
casings recovered from the scene matched the gun Sotelo fired.

A
second amended information charged Chinchilla and Sotelo with the following
offenses: (1) four counts of willful
premeditated and deliberate attempted murder (Pen. Code, §§ 664, subd.
(a), 187, subd. (a))href="#_ftn1"
name="_ftnref1" title="">[1]
(count 1-Efrain H.,

count 2-Angel H., count 3-Michael P., and count 4-Jonathan D.); (2)
shooting at an occupied motor vehicle (§ 246) (count 5); (3) four counts of
assault with a semiautomatic firearm (§ 245, subd. (b)) (count 6-Efrain H.,
count 7-Angel H., count 8-Michael P., and count 9-Jonathan D.); (4) two counts
of second degree robbery (§§ 211, 212.5, subd. (c)) (count 10-Angel H. &
count 11-Jonathan D.); (5) street terrorism (§ 186.22, subd. (a)) (count 12);
(6) being an active participant in a criminal
street gang and having a concealed firearm in the vehicle (§ 12025, subds.
(a)(1), (b)(3)) (count 13); and

(7) receiving stolen property (§ 496, subd. (a)) (count 14). The information alleged they committed all
but count 12 for the benefit of a criminal street gang (§ 186.22, subd.
(b)). The information alleged Chinchilla
was a gang member who vicariously used and discharged a firearm as to counts 1,
2, 3, 4, 10, and 11 (§§ 12022.53, subds. (b),

(c) & (e)(1)). The
information alleged Sotelo personally discharged a firearm as to counts 1, 2,
3, 4, 10, and 11 (§ 12022.53, subd. (c)), and personally used a firearm as to
counts 5, 6, 7, 8, and 9 (§ 12022.5, subd. (a)).

At
trial, the prosecutor offered the testimony of gang expert,

Clinton Achziger. After
detailing his background, training, and experience, Achziger testified
concerning the culture and habits of traditional, turf-oriented Hispanic
criminal street gangs, including the concept of respect within gangs, the
importance of guns, and committing violent acts to instill fear and intimidate.href="#_ftn2" name="_ftnref2" title="">[2] As relevant here, Achziger stated that if a
gang member gets into a car with a gun, the gang member will let the other gang
members in the car know he is armed so anyone can access the gun. He said these guns are obtained on the “black
market” or by theft. Achziger testified
that at the time of the offenses, Playboys was an ongoing organization with
more than three members. He described
its allies and rivals, its common signs or symbols, its colors, and its
turf. He

opined its primary activities were robbery and firearm
violations. He also testified concerning
the statutorily required predicate offenses. Based on background investigation and review
of the case, Achziger opined Chinchilla and Sotelo were active participants in
Playboys criminal street gang at the time of the offenses. Based on hypothetical questions mirroring the
facts of the case, Achziger opined the offenses were committed for the benefit
of, in association with, or at the direction of a criminal street gang. He also opined the offenses furthered,
promoted, or assisted a criminal street gang.

An
independent witness testified Efrain was driving slowly. The driver was following the men who were
walking.

Sotelo
testified to the following facts.
Sotelo, Chinchilla, and two friends went to Santa Ana for a party. He brought a loaded gun because he was
unfamiliar with the area. When they left
the party, they were “hit up” by a group of angry men. Sotelo’s group told the men they were from
the “L.A. Playboys.” One of the men
tried to grab or touch Chinchilla so Sotelo pulled out his gun and the men
backed away. Sotelo was in control of
the situation but he did not rob anyone.
Chinchilla did not hit anyone, reach into anyone’s pockets, or try to take
a cell phone, although Chinchilla did take the baseball hat. Sotelo said “Playboys” as they left. As Sotelo and Chinchilla first walked and
then ran away, Sotelo noticed the group following them in a car pretty fast,
about

20 to 25 miles per hour.
Sotelo was scared and he turned and fired four rounds at the car. Sotelo testified that although he shot at the
“[car full] of people,” he was not aiming at the occupants, but he was aiming
at the car. Sotelo later testified he
was scared the men were trying to kill him so when he fired his gun, he
intended to kill the men. He admitted to
joining the Playboys when he was 14 years old.
He denied telling any of his friends he had a gun.

With
the exception of count 10, the jury convicted Chinchilla and Sotelo of all
counts and found true all the enhancements.
Both Chinchilla and Sotelo represented by new defense counsel filed new
trial motions.

As
relevant here, in his new trial motion Sotelo argued the trial court erred in
failing to instruct the jury on imperfect self-defense along with the
self-defense instruction it did give the jury and defense counsel was
ineffective for failing to request it.
After considering the moving papers and hearing counsel’s argument, the
trial court denied Chinchilla’s and Sotelo’s new trial motions. The court explained there was an off the record
discussion concerning jury instructions and in what appeared to the court to be
an afterthought, Sotelo’s trial counsel requested a self-defense
instruction. The court stated the
prosecutor smirked and agreed to the instruction. The court admitted it was erroneous and the
court stated it should not have instructed the jury on self-defense. The court reasoned therefore the imperfect
self-defense instruction was similarly inappropriate. The court explained it was not supported by
the evidence and it did not find compelling the argument that because the court
gave the self-defense instruction it should have also instructed on imperfect
self-defense. The court denied the new
trial motions.

The
trial court sentenced Chinchilla to prison for four consecutive life terms with
the possibility of parole plus 80 years as follows: on counts 1 through 4-life in prison with the
possibility of parole plus 10 years on the street terrorism and vicarious use
of a firearm enhancements; count 5-imposed and stayed; counts 6 through 9-six
years plus 10 years on the street terrorism enhancements, which the court
stayed (§ 654); count 11-three years plus 10 years on the street terrorism and
vicarious use of a firearm enhancements, which the court ran concurrently to
count 1; and counts 12

through 14-sentences imposed concurrently with count 1.

The
trial court sentenced Sotelo to prison for four consecutive life terms with the
possibility of parole plus 120 years as follows: on counts 1 through 4-life in prison with the
possibility of parole plus 10 years on the street terrorism enhancements and 20
years on the personal discharge of a firearm enhancements; count 5-imposed and
stayed; counts 6 through 9-six years plus 10 years on the street terrorism
enhancements and four years on the personal use of a firearm enhancements,
which the court stayed

(§ 654); count 11-three years plus 10 years on the street terrorism
and personal discharge of a firearm enhancements, which the court run
concurrently to count 1; and counts 12 through 14-sentences imposed to run
concurrently with count 1.

DISCUSSION

>I. Sufficiency of the Evidence

>A. Willful, Deliberate, and Premeditated
Attempted Murder

> Sotelo argues
there was insufficient evidence of premeditation and deliberation. We disagree.


“In
addressing a challenge to the sufficiency of the evidence supporting a
conviction, the reviewing court must examine the whole record in the light most
favorable to the judgment to determine whether it discloses substantial

evidence—evidence that is reasonable, credible and of solid
value—such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt.
[Citation.] The appellate court
presumes in support of the judgment the existence of every fact the trier could
reasonably deduce from the evidence.
[Citations.] The same standard
applies when the conviction rests primarily on circumstantial evidence. [Citation.]
Although it is the jury’s duty to acquit a defendant if it finds the
circumstantial evidence susceptible of two reasonable interpretations, one of
which suggests guilt and the other innocence, it is the jury, not the appellate
court that must be convinced of the defendant’s guilt beyond a reasonable
doubt. [Citation.] ‘“If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the
circumstances might also reasonably be reconciled with a contrary finding does
not warrant a reversal of the judgment.
[Citation.]”’ [Citation.]” (People
v. Kraft (2000) 23 Cal.4th 978, 1053-1054.)

Attempted
murder “requires the specific intent to kill and the commission of a direct but
ineffectual act toward accomplishing the intended killing.” (People
v. Superior Court (Decker) (2007)
41 Cal.4th 1, 7.) “An intentional killing
is premeditated and deliberate if it occurred as the result of preexisting
thought and reflection rather than unconsidered or rash impulse. [Citations.]
However, the requisite reflection need not span a specific or extended
period of time. ‘“‘Thoughts may follow
each other with great rapidity and cold, calculated judgment may be arrived at
quickly . . . .’”’ [Citation.]” (People
v. Stitely (2005) 35 Cal.4th 514, 543 (Stitely).)

In >People v. Anderson (1968) 70 Cal.2d 15,
the California Supreme Court formulated a framework to aid reviewing courts in
analyzing the sufficiency of the evidence to sustain findings of premeditation
and deliberation. Three types of
evidence are typically relied upon to support an inference of premeditation and
deliberation:

“(1) facts about how and what defendant did prior to the actual killing which show that the defendant was
engaged in activity directed toward, and explicable as intended to result in,
the killing--what may be characterized as ‘planning’ activity; (2) facts about
the defendant’s prior relationship
and/or conduct with the victim from which the jury could reasonably infer a
‘motive’ to kill the victim [and] . . . ; (3) facts about the nature of the
killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant
must have intentionally killed according to a ‘preconceived design’ to take his
victim’s life in a particular way for a ‘reason’ which the jury can reasonably
infer from facts of type (1) or (2).” (>Id. at pp. 26-27.) Courts will sustain findings of premeditation
and deliberation where there is evidence of all three types. Otherwise, courts require “at least extremely
strong evidence of (1) or evidence of (2) in conjunction with either (1) or
(3).” (Id. at p. 27.)

Here
there was sufficient evidence for the jury to reasonably conclude Sotelo acted
with premeditation and deliberation when he fired the gun four times at the
victims in the car. We agree with Sotelo
that his testimony recalling his intent to kill the victims is insufficient by
itself to prove he acted with premeditation and deliberation. But there is other evidence from which the
jury could reasonably conclude Sotelo acted with the requisite preexisting
thought and reflection. Sotelo also
testified he took a loaded gun with him to the party because he was unfamiliar
with the area. When Chinchilla attempted
to rob Gonzales and Angel intervened, Sotelo brandished his firearm. This evidence negates Sotelo’s claim he
carried the gun for protection and evinces he planned to use the gun to carry
out a criminal purpose. (>People v. Romero (2008) 44 Cal.4th 386,
401 [defendant’s bringing of weapon to crime location demonstrates planning
activity].) Although Sotelo shot at them
later, premeditation and deliberation can occur in a brief interval: “‘“[t]he test is not time, but reflection,”’”
as “‘“‘[t]houghts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly.’”’” (People
v. Osband (1996) 13 Cal.4th 622, 697.)

There
was also evidence from which the jury could reasonably conclude Sotelo had a
motive to kill the victims. Achziger
testified that attempting to kill a car full of people enhances a gang member’s
status because it demonstrates he is “‘putting in work for the gang.’” He also said it enhances the gang’s status in
the community because citizens grow to fear the gang because the gang members
will murder people for no apparent reason.
There was no dispute Sotelo was an active member of the Playboys, and
Sotelo and Chinchilla claimed gang membership before they fled. This evidence supports the finding Sotelo’s
motive for shooting at the four victims was to enhance his and his gang’s
status by instilling fear in the community.
(People v. Martinez (2003)

113 Cal.App.4th 400, 412-413 [premeditation and deliberation found
where motive was gang related].)

The
evidence demonstrated Sotelo fired the weapon four times, one bullet for each
member of the car. One of the bullets
struck just above the driver’s side windshield.
Although Sotelo claimed Efrain was following them “pretty fast,” the
jury could reasonably conclude Sotelo had a preconceived design to kill each of
the members of the car when he fired four times at the car. (People
v. Poindexter (2006)

144 Cal.App.4th 572, 588 [manner of killing demonstrated by three
quick shots at relatively close range].)


Finally,
assuming a reasonable jury could have found the evidence did not support
premeditation and deliberation and returned a verdict of second degree murder,
defendants’ convictions must stand because, as we have stated, “[i]f the
circumstances reasonably justify the jury’s findings, the reviewing court may
not reverse the judgment merely because it believes that the circumstances
might also support a contrary finding.”
(People v. Ceja (1993) 4
Cal.4th 1134, 1139.) Thus, the record
includes evidence supporting all three Anderson
factors.

Sotelo’s
reliance on cases such as People v.
Chance (2006)

141 Cal.App.4th 618, which he characterizes as having evidence of
premeditation that appears stronger than here, and People v. Munoz (1984) 157 Cal.App.3d 999, where the evidence of
premeditation appears weaker, is of no avail.
In addition to the fact the California Supreme Court granted review in >Chance and it is no longer good law,href="#_ftn3" name="_ftnref3" title="">[3]
the question we must resolve is whether the evidence in this case was sufficient to convince a rational trier of fact
beyond a reasonable doubt that the attempted murders were premeditated and
deliberate. Based on the evidence
outlined above, we conclude it was.
Chinchilla joins in this argument, but as he provides no additional
analysis specific to his mens rea, we reject his claim.







>B. Receiving Stolen Property

> Chinchilla
contends insufficient evidence supports his conviction for

count 14, receiving stolen property, because there was no evidence
he knew the gun was stolen. Not so.

> “‘[P]roof of the
crime of receiving stolen property requires establishing that the property in
question was stolen, that the defendant was in possession of it, and that the
defendant knew the property to be stolen.’”
(People v. Reyes (1997) 52
Cal.App.4th 975, 984, fn. omitted; see § 496, subd. (a).) “Knowledge that property was stolen can
seldom be proved by direct evidence and resort must often be made to
circumstantial evidence.” (>People v. Vann (1974) 12 Cal.3d 220,
224.) “Although guilty knowledge may be
proven by circumstantial evidence [citations][,] when challenged on appeal
those circumstances must be shown to constitute substantial evidence.” (People
v. Kunkin (1973) 9 Cal.3d 245, 254.)
“In routine circumstances, the knowledge element is inferred from the
defendant’s failure to explain how he came to possess a stolen item or his
offer of an unsatisfactory explanation or from suspicious circumstances
attendant upon his possession of the item.”
(People v. Alvarado (1982) 133
Cal.App.3d 1003, 1019-1020 [affirming conviction based on no explanation from
defendant and recovery of gun with other stolen property].)

Here,
the record includes sufficient evidence from which the jury could reasonably
conclude Chinchilla knew the gun was stolen.
The evidence demonstrated that when Gutierrez discovered Chinchilla and
his confederates, Chinchilla opened the car’s rear passenger door, the stolen
gun fell to the ground. When Gutierrez
asked Chinchilla about the gun, Chinchilla replied he “didn’t know what [he]
was talking about.” Achziger testified
gang members purchase guns on the “black market” or steal them and gang members
know which gang member is armed.
Finally, Chinchilla and Sotelo had just finished robbing the
victims—Chinchilla was wearing De La Torre’s baseball cap. Based on testimony concerning gang culture,
and Chinchilla’s suspicious behavior and propensity to relieve people of their
property, we conclude the record includes sufficient evidence from which the
jury could conclude Chinchilla knew the gun was stolen.

Chinchilla’s
reliance on People v. Sifuentes
(2011) 195 Cal.App.4th 1410 (Sifuentes),
is misplaced. Sifuentes was a case about constructive possession, and not
knowledge the property was stolen. Thus,
there was sufficient evidence supporting Chinchilla’s conviction for receiving
stolen property. Sotelo joins in this
argument, but as he is situated in a different factual scenario and provides no
additional argument, we reject his claim.


>II. Jury Instructions

>A. Natural and Probable Consequences

> Chinchilla
asserts the trial court erred in not instructing the jury that it had to find
premeditated attempted murder was a natural and probable consequence of
robbery. After briefing was complete, we
invited the parties to file supplemental letter briefing on the effect of >People v. Favor (2012) 54 Cal.4th 868 (>Favor).
The Attorney General contends that based on Favor, there was no instructional error. Chinchilla concedes Favor disapproved of People
v. Hart (2009) 176 Cal.App.4th 662, the case he relied on to argue there
was instructional error.

In >Favor, the California Supreme Court held
the trial court is not required to instruct the jury a premeditated attempt to
murder must have been a natural and probable consequence of the target offense
of robbery. The majority reasoned

section 664, subdivision (a), “‘requires only that the attempted
murder itself was willful, deliberate, and premeditated’” and “it is only
necessary that the attempted murder ‘be committed by one of the perpetrators
with the requisite state of mind.’” (>Favor, supra, 54 Cal.4th at p.
879.) We are bound by >Favor.
(Auto Equity Sales, Inc. v.
Superior Court (1962) 57 Cal.2d 450, 455.)
We conclude the trial court did not err by failing to instruct the jury
to determine whether attempted premeditated murder was a natural and probable
consequence of robbery.

>B. Imperfect Self-Defense

> Sotelo argues the
trial court erred in not instructing the jury on imperfect self-defense because
there was substantial evidence supporting the defense and because the trial
court instructed the jury on self-defense it was required to instruct the jury
on imperfect self-defense. We agree but
conclude the error was harmless.

In >People v. Flannel (1979) 25 Cal.3d 668 (>Flannel), the court explained the
difference between murder and manslaughter.
Murder is defined as the unlawful killing of a human being with malice
aforethought, and manslaughter is defined as the unlawful killing of a human
being without malice aforethought. (See
§§ 187,

subd. (a), 192.) The court
stated the honest belief of imminent peril negates malice in a case of self-defense,
and the reasonableness of the belief goes to the justification for the
killing. (Flannel, supra, 25 Cal.3d at p. 679.) The court further explained: “An honest but unreasonable belief that it is
necessary to defend oneself from imminent peril to life or great bodily injury
negates malice aforethought, the mental element necessary for murder, so that
the chargeable offense is reduced to manslaughter.” (Id.
at p. 674, italics omitted.) Regarding
the duty to give requested instructions, the court held the trial court is
required to instruct if the defendant presents substantial evidence to support
a theory of defense, i.e., enough to deserve consideration by the jury. “If the evidence should prove minimal and
insubstantial, however, the court need not instruct on its effect.” (Id.
at

p. 684.)

> In >In re Christian S. (1994) 7 Cal.4th 768,
783 (Christian S.), the court held
statutory changes in the law had not affected the vitality of the >Flannel defense. The court, however, provided the following caveat: “We caution, however, that the doctrine is
narrow. It requires without exception
that the defendant must have had an actual
belief in the need for self-defense. We
also emphasize what should be obvious.
Fear of future harm—no matter how great the fear and no matter how great
the likelihood of the

harm—will not suffice. The
defendant’s fear must be of imminent
danger to life or great bodily injury.
‘“[T]he peril must appear to the defendant as immediate and present and
not prospective or even in the near future.
An imminent peril is one that,
from appearances, must be instantly dealt with.’ . . . [¶] This definition
of imminence reflects the great value our society places on human life.” [Citation.]
Put simply, the trier of fact must find an actual fear of an imminent
harm. Without this finding, imperfect

self-defense is no defense.
The court concluded: “Finally, we
reiterate that, just as

with . . . self-defense or any defense, “[a] trial court need give a
requested instruction concerning a defense only
if there is substantial evidence to support the defense.’ [Citation.]”
(Ibid.)

There
is disagreement as to whether a trial court should instruct the jury on
imperfect self-defense when the court instructs on href="http://www.fearnotlaw.com/">self-defense. (People
v. Valenzuela (2011) 199 Cal.App.4th 1214, 1231 [just because the court
permitted instructions on

self-defense does not mean that substantial evidence supported the
giving of an imperfect self-defense instruction]; People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1270, 1275 [same] (>Rodriguez); but see People v. Ceja (1994) 26 Cal.App.4th 78, 88-91 (conc. opn. of
Johnson, J.) & People v. De Leon
(1992) 10 Cal.App.4th 815, 826 (conc. opn. of Johnson, J.).) In Christian
S., supra, 7 Cal.4th at page 783, the California Supreme Court stated: “Finally, we reiterate that, just as with
perfect self-defense or any defense, ‘[a] trial court need give a requested
instruction concerning a defense only if
there is substantial evidence to support the defense.’ [Citation.]”
We agree. As the court reasoned
in Rodriguez, supra, 53 Cal.App.4th
at page 1275, imperfect self-defense is fact specific. The court explained an instruction on
imperfect self-defense would be inappropriate where a defendant’s statements,
if believed, could only lead to an acquittal based on justifiable homicide and
the prosecution’s evidence would not support an actual belief in the need for
self-defense. (Ibid.)

Although
unnecessary for resolution of this case, we disagree with the trial court’s ex
post facto determination at the new trial motion hearing that it erred in
instructing the jury on self-defense.
Sotelo’s defense was self-defense.
At trial, Sotelo testified he brandished his gun after one of the men
attacked Chinchilla, and he denied either he or Chinchilla robbed them. He admitted Chinchilla took the baseball hat
as they left. He also testified that
when he and Chinchilla walked away, the car was coming at them pretty fast and
he was scared and fired the gun.
Needless to say, a car could be a deadly weapon. Thus, based on this evidence a jury could
have concluded Sotelo fired the gun at the car to stop the driver who Sotelo
thought was going to run them down. The
jury could have concluded Sotelo actually and reasonably believed in the
necessity of defending himself from imminent danger of death or great bodily
injury. Although at the hearing on the
new trial motion the court indicated this story was unbelievable, that was for
the jury to decide, not the trial court.


Based
on this evidence, the jury could have also concluded Sotelo actually believed
he had to defend himself from imminent danger of death or great bodily injury
but that his belief was unreasonable.
There was evidence from which the jury could conclude he believed he had
to defend himself but his belief that firing a gun at a car that was slowly
following him was unreasonable. Thus,
based on the record before us, we conclude the trial court properly instructed
the jury on self-defense and erred in failing to instruct the jury on imperfect
self-defense.

Relying
on Christian S., supra, 7 Cal.4th at
page 773, footnote 1, the Attorney General argues Sotelo could not assert
imperfect self-defense as a defense because he committed a robbery. Whether Sotelo and Chinchilla robbed the
alleged victims was in dispute. Sotelo
denied they robbed the victims and claimed he brandished the gun when one of
the victims attacked Chinchilla. Thus,
whether the victims were justified in pursuing them was a question for the jury
to decide and it could only do so if the trial court instructed the jury on
self-defense and imperfect self-defense.
We must now determine whether Sotelo was prejudiced by this error. We conclude he was not.

Any
error in failing to instruct on imperfect self-defense is subject to the
harmless error test articulated in People
v. Watson (1956) 46 Cal.2d 818, 836.
(People v. Blakeley (2000) 23
Cal.4th 82, 93.) Under this test, we may
reverse a conviction for failing to instruct only if after an examination of
the record it appears reasonably probable the defendant would have obtained a
more favorable outcome had the error not occurred. (Ibid.) We conclude it was not reasonably probable
the result would have been different had the trial court instructed the jury on
imperfect self-defense.

The
jury clearly rejected Sotelo’s claim of self-defense. The jury concluded Sotelo and Chinchilla
robbed and assaulted the victims.
Additionally, the jury concluded that when Sotelo fired the gun at the
car, he did so with premeditation and deliberation. This finding is inconsistent with a finding
Sotelo believed, reasonably or unreasonably, he needed to defend himself from
the car. Therefore, the factual question
posed by the omitted instruction was necessarily resolved adversely to Sotelo
under other, properly given instructions.
(People v. Edwards (1985) 39
Cal.3d 107, 116.)

> Alternatively
Sotelo claims his defense counsel was ineffective for failing to request an imperfect
self-defense instruction. If defendant fails to show that he
was prejudiced by counsel’s performance, we may reject his ineffective
assistance claim without determining whether counsel’s performance was
inadequate. (People v. Sanchez (1995) 12 Cal.4th 1, 40-41, disapproved on other
grounds in People v. Doolin (2009)

45 Cal.4th 390.) As we explain above, Sotelo was not
prejudiced by the trial court’s failure to instruct the jury on imperfect
self-defense.

Thus,
although the trial court erred in failing to instruct the jury on imperfect
self-defense, we conclude Sotelo was not prejudiced. Chinchilla joins in this argument, but again
as he provides no further argument, we reject his claim.

>III. Sentencing

>A. Section 186.22, subdivision (a)

> Relying on >People v. Mesa (2012) 54 Cal.4th 191 (>Mesa), Sotelo and Chinchilla argue their
sentences on count 12, street terrorism, must be stayed because they cannot be
punished for committing street terrorism and the underlying felonies in the
case used to establish the felonious criminal
conduct element of street terrorism.
The Attorney General agrees that based on Mesa, where the California Supreme Court held that section 654
precludes separate punishment for both street terrorism and the underlying
felony used to prove the “‘felonious criminal conduct’” element of that offense
(id. at pp. 197-198), their sentences
must be stayed. Thus, on remand the
trial court must stay the sentences on count 12 for both Sotelo and
Chinchilla.

>B. Section 186.22, subdivision (b)(1)

>1. Chinchilla

With
respect to counts 1 through 4 and 11, Chinchilla contends the trial court erred
in imposing 10-year enhancements for vicarious use of a firearm and 10-year
enhancements for street terrorism. The
Attorney General again concedes the error.

Section
12022.53, subdivision (e)(2), provides:
“An enhancement for participation in a criminal street gang” pursuant to
section 186.22 “shall not be imposed on a person in addition to an enhancement
imposed pursuant to this subdivision, unless the person personally used or personally
discharged a firearm in the commission of the offense.” (Italics added.) We accept the Attorney General’s concession
section 186.22, subdivision (b), does not apply because Chinchilla did not
personally use a firearm during the commission of the attempted murders or
robbery. (People v. Salas (2001)

89 Cal.App.4th 1275, 1281-1282; accord People v. Gonzalez (2010) 180 Cal.App.4th 1420; see also >People v. Brookfield (2009) 47 Cal.4th
583, 588.)

As to
counts 6 through 9, Chinchilla asserts the trial court erred in imposing
10-year terms on the street terrorism enhancements. The Attorney General concedes the error.

Section
186.22, subdivision (b)(1), provides enhanced penalties for

gang-related offenses as follows:
“(A) Except as provided in subparagraphs (B) and (C), the person shall
be punished by an additional term of two, three, or four years at the court’s
discretion. [¶] (B) If the felony is a serious felony, as
defined in subdivision (c) of [s]ection 1192.7, the person shall be punished by
an additional term of five years.
[¶] (C) If the felony is a
violent felony, as defined in subdivision (c) of [s]ection 667.5, the person
shall be punished by an additional term of 10 years.”

Section
1192.7, subdivision (c)(31), lists assault with a semiautomatic firearm as a
serious felony (§ 245). Section
667.5, subdivision (c), does not list

section 245 as a violent felony, although it does list other firearm-related
offenses (§ 667.5, subd. (c)(8)).
We accept the Attorney General’s concession the trial court should have
imposed five-year enhancements pursuant to section 186.22,

subdivision (b)(1)(B), on counts 6, 7, 8, and 9. We remand the matters for resentencing. (People
v. Burbine (2003) 106 Cal.App.4th 1250, 1256 [remand for resentencing
proper where unauthorized sentence].)

>2. Sotelo

Relying
on People v. Lopez (2005) 34 Cal.4th
1002 (Lopez), Sotelo contends the
trial court erred in imposing 10-year enhancements on counts 1 through 4
pursuant to section 186.22, subdivision (b)(1)(C), because murder is punishable
by life in prison. The Attorney General
concedes the error.

In
Lopez, supra, 34 Cal.4th at page
1004, the California Supreme Court held that “first degree murder is a violent
felony that is punishable by imprisonment in the state prison for life and
therefore is not subject to a 10-year enhancement under section 186.22[,
subdivision] (b)(1)(C).” Instead, the
court found the 15-year minimum parole eligibility term in section 186.22,
subdivision (b)(5), applies. (>Lopez, supra,

34 Cal.4th at pp. 1006-1007.)

Here,
the trial court sentenced Sotelo to life in prison with the possibility of
parole on counts 1 through 4. Therefore,
on remand the trial court must strike 10-year street terrorism enhancements on
counts 1, 2, 3, and 4.

DISPOSITION

The
judgments are reversed in part, affirmed in part, and remanded for resentencing
consistent with this opinion.







O’LEARY,
P. J.



WE CONCUR:







ARONSON, J.







IKOLA, J.