Filed 9/10/26 P. v. Duhon CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B339127
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BA501476)
GERALD WAYNE DUHON,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Mark Hanasono, Judge. Affirmed as
modified and remanded with directions to correct abstract of
judgment.
Johanna Pirko, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Kenneth C. Byrne and Julie A. Harris, Deputy
Attorneys General, for Plaintiff and Respondent.
______________________________
A jury found defendant and appellant Gerald Wayne
Duhon (Duhon) guilty of one count of first degree murder (Pen.
Code, § 187, subd. (a);1 count 1); two counts of deliberate and
premeditated attempted murder (§§ 664, 187, subd. (a); counts 2
& 3); three counts of assault with a firearm (§ 245, subd. (a)(2);
counts 4, 5 & 6); and one count of possession of a firearm by a
felon (§ 29800, subd. (a)(1); count 7).
As to counts 1 through 6, the jury found true allegations
that Duhon personally used a firearm (§ 12022.5, subd. (a)), was
armed with or used a weapon (Cal. Rules of Court,
rule 4.421(a)(2)),2 and engaged in violent conduct that indicates
he is a serious danger to society (rule 4.421(b)(1)).3 Duhon
admitted that he had suffered two prior serious and/or violent
felony convictions (§§ 667, subd. (d), 1170.12, subd. (b)) and two
prior convictions (§ 667.5, subd. (c)). Duhon further admitted
allegations that he had prior convictions that were numerous and
of increasing seriousness (rule 4.421(b)(2)) and that he had
served a prior prison term (rule 4.421(b)(3)).
1 All statutory references are to the Penal Code unless
otherwise stated.
2 All further references to rules are to the California Rules of
Court.
3 The jury found not true the allegation, as to counts 1
through 6, that the offenses involved great violence, great bodily
harm, threat of great bodily harm, or an act revealing a high
degree of cruelty, viciousness, or callousness. (Rule 4.421(a)(1).)
2
The trial court sentenced Duhon to an indeterminate term
of 108 years to life in prison and a determinate term of 24 years
8 months.
On appeal, Duhon contends that the trial court erroneously
instructed the jury with an argumentative version of CALCRIM
No. 3234; the imposition of upper term sentences on count 4 and
the firearm enhancements violated his Sixth Amendment right to
a jury trial; the court abused its discretion by declining to strike
the firearm enhancements; and he received ineffective assistance
of counsel.
We remand the matter to correct a clerical error in the
abstract of judgment and otherwise affirm the judgment.
FACTS
Because Duhon does not challenge the sufficiency of the
evidence supporting his convictions, we only briefly summarize
the evidence adduced at trial. (See People v. Curl (2009)
46 Cal.4th 339, 342, fn. 3.)
On October 31, 2021, a group of people, including Nadia C.
(Nadia),4 Nadia’s husband, Nadia’s cousin and her husband and
son, Gustavo G. (Gustavo), and Miguel N. (Miguel), gathered at a
house to socialize. Nadia was the last to leave the home after
10:00 p.m.; her friends and family were chatting outside. While
Nadia was in the street loading her car, a car driven by Duhon
began to inch towards her and pressured her to walk faster.
Gustavo believed the car was about to run Nadia over. He pulled
Nadia to the side of the street. Nadia’s husband walked over to
4 Pursuant to rule 8.90(b)(4), we initially refer to the victims
in this criminal proceeding by their first names and last initials,
and thereafter by their first names. No disrespect is intended.
3
the driver’s side window and said in Spanish something like,
“ ‘God-damn it. Why don’t you slow down?’ ” Duhon responded in
English in an angry voice. Some members of the group touched
Duhon’s car.
Duhon continued driving slowly down the street. He
stopped a few houses down, retrieved a gun from the hood of his
car, and walked around to the side of his car. Duhon fired the
gun twice. Miguel suffered a fatal gunshot wound to the head.
There was no alcohol in his blood at the time of death.
After his arrest, Duhon made incriminating statements to
the mother of his child.
Duhon testified in his own defense that he felt threatened
when the group surrounded his car and called him derogatory
names. Shortly after he began to drive away, he heard a gunshot
and thought he was being shot at. He pointed the gun and shot.
It was dark, and he testified that he did not intend to kill anyone.
DISCUSSION
I. Alleged Instructional Error
Duhon contends that the trial court committed
instructional error by giving the jury an “argumentative and
unconstitutional” version of CALCRIM No. 3234 that lowered the
prosecution’s burden to prove malice as to the murder and
attempted murder counts.
A. Additional background
The trial court instructed the jury with CALCRIM No. 3234
as follows:
“If you find the defendant guilty of the crimes charged in
Counts 1, 2, 3, 4, 5, and/or 6, or the lesser crimes of voluntary
manslaughter and/or attempted voluntary manslaughter, you
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must then decide whether the People have proved the additional
allegation that Gerald Duhon has engaged in violent conduct, to
wit: firing multiple gunshots at an unarmed person or persons,
which indicates he is a serious danger to society.
“To prove this allegation, the People must prove that:
“1. The defendant has engaged in violent conduct;
“AND
“2. The violent conduct, considered in light of all the
evidence presented, shows that the defendant is a serious danger
to society.
“To determine whether the defendant is a serious danger to
society, you may consider the defendant’s conduct before or after
commission of the crime.
“You may not find the allegation true unless all of you
agree that the People have proved that the defendant engaged in
violent conduct that shows he is a serious danger to society.
However, all of you do not need to agree on which violent conduct
shows that the defendant is a serious danger to society.
“You may not find the allegation true unless all of you
agree that the People have proved that the defendant’s violent
conduct was distinctively worse than that posed by an ordinary
commission of the underlying crime and that the violent conduct,
considered in light of all the evidence presented, shows that the
defendant is a serious danger to society.
“The People have the burden of proving this allegation
beyond a reasonable doubt. If the People have not met this
burden, you must find that the allegation has not been proved.”
Duhon did not object to CALCRIM No. 3234 as given.5
5 The People argue that Duhon forfeited his claim of
instructional error. Although the failure to object to an
5
B. Standard of review
We review claims of instructional error de novo. (People v.
Thomas (2023) 14 Cal.5th 327, 382.) “ ‘ “A defendant challenging
an instruction as being subject to erroneous interpretation by the
jury must demonstrate a reasonable likelihood that the jury
understood the instruction in the way asserted by the defendant.
[Citations.]” ’ [Citation.] ‘Jurors are presumed able to
understand and correlate instructions and are further presumed
to have followed the court’s instructions.’ [Citation.]” (Ibid.)
C. The trial court did not err
We reject Duhon’s argument that, as given, CALCRIM
No. 3234 lowered the prosecution’s burden of proof as to the
murder and attempted murder counts by “absolv[ing] the
prosecution of its burden to prove beyond a reasonable doubt the
absence of imperfect self-defense.” By its express terms, the
instruction was only applicable if and after the jury found Duhon
guilty of the charged crimes “or the lesser crimes of voluntary
manslaughter and/or attempted voluntary manslaughter[.]” (See
CALCRIM No. 3234 [as given, “If you find the defendant guilty of
the crimes charged in Counts 1, 2, 3, 4, 5, and/or 6, or the lesser
crimes of voluntary manslaughter and/or attempted voluntary
manslaughter, you must then decide whether the People have
proved the additional allegation that Gerald Duhon has engaged
in violent conduct, to wit: firing multiple gunshots at an unarmed
instruction generally forfeits the issue on appeal (see People v.
Lee (2011) 51 Cal.4th 620, 638), that rule does not apply here.
Duhon’s “claim that the instruction is not legally correct and
therefore violates his right to due process of law ‘is not of the type
that must be preserved by objection.’ [Citations.]” (People v. Hin
(2025) 17 Cal.5th 401, 492.)
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person or persons, which indicates he is a serious danger to
society” (italics added)].)
Read in conjunction with the other instructions given by
the trial court—including CALCRIM Nos. 220 (reasonable doubt),
520 (first or second degree murder with malice aforethought), 521
(first degree murder), 505 (justifiable homicide: self-defense or
defense of another), 571 (voluntary manslaughter: imperfect self-
defense), 600 (attempted murder), and 604 (attempted voluntary
manslaughter: imperfect self-defense)—there is no reasonable
likelihood that the jury would have erroneously interpreted
CALCRIM No. 3234 to apply in any manner to the elements
required to prove the murder and attempted murder counts or to
the issue of imperfect self-defense. (See People v. Parker (2025)
113 Cal.App.5th 1261, 1271 [appellate court “consider[s] the
instructions as a whole and assume[s] that the jurors are
intelligent persons capable of understanding and correlating all
jury instructions given”].)
Duhon also contends CALCRIM No. 3234 is argumentative
because it “conveyed to the jury that the ‘violent conduct’ at issue
in the case consisted of [him] (1) shooting at (2) unarmed
victims.” “An instruction is argumentative when it recites facts
drawn from the evidence in such a manner as to constitute
argument to the jury in the guise of a statement of law.
[Citation.]” (People v. Campos (2007) 156 Cal.App.4th 1228, 1244
(Campos).) “A jury instruction is improperly argumentative if ‘it
would invite the jury to draw inferences favorable to the
defendant [(or the prosecution)] from specified items of evidence
on a disputed question of fact, and therefore properly belongs not
in instructions, but in the arguments of counsel to the jury.’
[Citations.] ‘In a proper instruction, “[what] is pinpointed is not
7
specific evidence as such, but the theory of the defendant’s [(or
the prosecution’s)] case.” ’ [Citation.]” (People v. Santana (2013)
56 Cal.4th 999, 1012.)
Here, the instruction merely told the jury it had to
determine whether certain facts alleged by the prosecution
demonstrated that Duhon was “a serious danger to society.” The
instruction left it to the jury to decide whether the alleged facts
constituted a serious danger to society. As it did “not invite
inferences favorable to either party” (Campos, supra,
156 Cal.App.4th at p. 1244), we detect nothing argumentative.
Finally, Duhon’s reliance on People v. Schuller (2023)
15 Cal.5th 237 is unavailing. That case concerned whether the
erroneous refusal to instruct on imperfect self-defense was
prejudicial. (Id. at pp. 250–251.) Here, the trial court properly
instructed the jury on imperfect self-defense, and we disagree
that CALCRIM No. 3234 rendered that instruction ineffective.
Because the trial court did not commit instructional error,
we need not address Duhon’s arguments concerning whether any
such error was prejudicial.
II. Sentencing
A. Additional background
At the sentencing hearing, the trial court stated its
tentative sentence as follows: On count 1, 50 years to life plus
10 years for the firearm enhancement; on count 2, 14 years to life
plus 10 years for the firearm enhancement; on count 3, 14 years
to life plus 10 years for the firearm enhancement; on count 4,
8 years plus 10 years for the firearm enhancement; on count 5,
3 years 4 months plus 1 year 4 months for the firearm
enhancement; on count 6, 3 years 4 months plus 1 year 4 months
for the firearm enhancement; and on count 7, 4 years.
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The trial court explained that it “ha[d] considered the
general objectives and sentencing under [rule] 4.410[,]
[e]specially in protecting society, punishing the defendant,
deterring future offenses, [and] preventing the defendant from
committing new crimes by isolating him through the period of
incarceration.” The court also “consider[ed] all the aggr[a]vating
circumstances which were found true.” The court noted that
“[t]here were no mitigating circumstances presented” but that it
had considered Duhon’s age.
The trial court indicated that it was “inclined to grant any
motion to dismiss under [section] 1385 . . . based on the age of
[Duhon’s] 1983 conviction[,]” Duhon’s “age[,] and the significant
gap between that conviction and subsequent convictions.” The
court recognized its discretion to impose concurrent sentences,
but stated that it was inclined to impose consecutive sentences
for counts 2 through 6 “based on the violent conduct represented
by each count[] and [the] separate victims.” The court also noted
that the aggravating factors that were found true “justif[ied]
imposing the upper term on the firearm enhancement for each
applicable count, as well as the upper term for count 4.” The
court would also “impose both consecutive conduct enhancements
for the personal use of a firearm for counts 1, 2, and 3” and found
section 654 inapplicable to count 7.
The trial court tentatively declined to exercise its discretion
to dismiss the firearm enhancements under section 1385,
explaining that it found “dismissal w[ould] endanger public
safety.” The court explained that “specific deterrents [were]
necessary and appropriate for this defendant based on the violent
conduct in this case[,]” “[a]n earlier release as a result of
dismissing any enhancement [would] likely result in physical
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injury or serious danger to the public[,]” and the imposition “of
terms for each enhancement [wa]s appropriate based on . . .
finding[s] of violent conduct as directed to separate victims.”
The People submitted on the trial court’s tentative.
Defense counsel moved under section 1385 and People v. Superior
Court (Romero) (1996) 13 Cal.4th 497 to strike both of
defendant’s prior strike convictions. Counsel also asked the court
to impose concurrent sentences on counts 2 through 6 “based on a
single course of conduct.”
The trial court struck one prior strike conviction but not a
more recent strike and sentenced Duhon according to its
tentative.
B. Imposition of upper term sentences
Duhon contends that the trial court’s imposition of upper
term sentences on count 4 and the firearm enhancements
violated his Sixth Amendment right to a jury trial because the
sentencing decision was premised “in part” on the jury’s true
finding on the rule 4.421(b)(2) aggravating factor about which the
court purportedly erroneously instructed with CALCRIM
No. 3234. We reject this argument because, as discussed, the
court did not err when it instructed the jury.
C. Failure to strike firearm enhancements
Duhon also contends that the trial court abused its
discretion by declining to strike the firearm enhancements.
Although Duhon forfeited this contention by failing to raise it
below (see People v. Coleman (2024) 98 Cal.App.5th 709, 724), we
consider the merits to forestall his ineffective assistance of
counsel claim (see People v. Welch (1999) 20 Cal.4th 701, 759–
760; People v. Monroe (2022) 85 Cal.App.5th 393, 400).
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Under section 1385, a trial “court shall dismiss an
enhancement if it is in the furtherance of justice to do so . . . .”
(§ 1385, subd. (c)(1).) “In exercising its discretion” to dismiss an
enhancement, “the court shall consider and afford great weight to
evidence offered by the defendant to prove” the presence of
enumerated “mitigating circumstances . . . . Proof of the presence
of one or more of these circumstances weighs greatly in favor of
dismissing the enhancement, unless the court finds that
dismissal of the enhancement would endanger public safety.”
(Id., subd. (c)(2), italics added.) In this context, “ ‘[e]ndanger
public safety’ means there is a likelihood that the dismissal of the
enhancement would result in physical injury or other serious
danger to others.” (Ibid.)
We review a trial court’s decision whether to dismiss or
strike an enhancement under section 1385 for abuse of discretion.
(Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 490 (Nazir).)
“A trial court may abuse its discretion where ‘its decision is so
irrational or arbitrary that no reasonable person could agree with
it,’ ‘where the trial court was not “aware of its discretion” ’ to
dismiss a sentencing allegation under section 1385, or ‘where the
court considered impermissible factors in declining to dismiss.’
[Citations.]” (Nazir, supra, at p. 490.)
We find no abuse of the trial court’s discretion. The court
was not required to give great weight to any potentially
applicable mitigating circumstance because it expressly found
that dismissing the firearm enhancements would endanger public
safety as “[a]n earlier release . . . [would] likely result in physical
injury or serious danger to the public.” This was an eminently
reasonable conclusion given that Duhon shot at an unarmed
group of people, resulting in the death of one of the victims, and
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the jury found that he had engaged in violent conduct indicative
of the serious danger he posed to society (rule 4.421(b)(1)). Here,
as “in most cases, ‘if the trial court finds that dismissal of an
enhancement would endanger public safety, then it is hard to see
how dismissal would further the interests of justice,’
notwithstanding the applicability of any mitigating factors
identified . . . . [Citation.]” (People v. Walker (2024) 16 Cal.5th
1024, 1033.)
Duhon argues that “dismissal of the enhancements could
not possibly endanger public safety” because doing so would still
result in a “sentence far exceed[ing] the human lifespan.” In
support, he cites People v. Williams (2018) 19 Cal.App.5th 1057
(Williams), which concerned the denial of a petition for
resentencing under section 1170.126. The Court of Appeal found
that the trial court had abused its discretion “in determining that
resentencing [the defendant] would pose an unreasonable risk to
public safety” (Williams, supra, at p. 1061), reasoning that “[i]f a
defendant’s term is still effectively life without parole after
resentencing, then resentencing cannot pose an unreasonable
risk to public safety” (id. at p. 1063). Not only is Williams
procedurally and statutorily distinguishable, but in the instant
case the trial court expressly stated that it had considered
Duhon’s age.
III. Alleged Ineffective Assistance of Counsel
Finally, Duhon argues that his trial counsel was
constitutionally ineffective because he did not object to CALCRIM
No. 3234 or seek dismissal of the firearm enhancements.
To establish ineffective assistance of counsel, a defendant
must show that counsel’s performance was both deficient and
prejudicial. (People v. Dunn (2025) 18 Cal.5th 129, 169.) “ ‘When
12
examining an ineffective assistance claim, a reviewing court
defers to counsel’s reasonable tactical decisions, and there is a
presumption counsel acted within the wide range of reasonable
professional assistance.’ ” (People v. Barrett (2025) 17 Cal.5th
897, 1013–1014.) To establish prejudice, “[t]he defendant must
show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different. A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” (Strickland v.
Washington (1984) 466 U.S. 668, 694.)
Duhon has not established that his trial counsel provided
inadequate representation. We have found no instructional error,
and the trial court’s detailed explanation of its sentencing
decisions indicates that it was fully aware of the scope of its
discretionary sentencing authority and weighed various factors in
exercising that authority. Counsel could have reasonably
determined that any additional argument at sentencing would be
futile. (See People v. Price (1991) 1 Cal.4th 324, 387 [“Counsel
does not render ineffective assistance by failing to make motions
or objections that counsel reasonably determines would be
futile”].) Nor is it reasonably probable that any omitted request
or argument from counsel would have resulted in a more
favorable outcome for Duhon.
IV. Correction of the Abstract of Judgment
The People identify a clerical error in the abstract of
judgment. On count 1, instead of 50 years to life plus 10 years for
the section 12022.5, subdivision (a) firearm enhancement, the
abstract of judgment indicates that defendant was sentenced to
60 years to life. We order the trial court to amend the abstract of
13
judgment to correct this error. (See People v. Mitchell (2001)
26 Cal.4th 181, 185.)
DISPOSITION
The matter is remanded for the trial court to prepare an
amended abstract of judgment that indicates that Duhon was
sentenced on count 1 to 50 years to life plus 10 years for the
section 12022.5, subdivision (a) firearm enhancement. The court
shall forward a certified copy of the amended abstract of
judgment to the California Department of Corrections and
Rehabilitation. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
GOORVITCH, J.
We concur:
LUI, P. J.
RICHARDSON, J.
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