Filed 11/9/26 P. v. Lock CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B340755
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA498868)
v.
MARIO LOCK,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Deborah S. Brazil, Judge. Affirmed.
Steven Schorr, 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, Senior
Assistant Attorney General, Michael C. Keller and David A.
Wildman, Deputy Attorneys General, for Plaintiff and
Respondent.
_______________________________
Mario Lock appeals from a judgment of conviction entered
after a jury found him guilty of the second degree murder of
Terion Reece, the boyfriend of Lock’s ex-girlfriend, and first
degree residential burglary. The jury also found true the
allegation Lock used a firearm in the commission of the murder.
Lock contends the trial court erred in failing to instruct the
jury with respect to his murder conviction that a person who is an
initial aggressor or mutual combatant, or who provokes a fight,
has a right to self-defense if his opponent uses deadly force,
preventing the person’s withdrawal. Lock also contends
substantial evidence did not support his burglary conviction and
the court erred in instructing the jury and in denying his motion
for acquittal, because Lock had an unconditional possessory right
to enter the property (where he previously lived with his ex-
girlfriend). Finally, Lock asserts the court violated his
constitutional right to a jury determination on the alleged
aggravating factors by failing sua sponte to instruct the jury with
CALCRIM Nos. 3224 and 3225 on the elements of the
aggravating factors. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
A. The Prosecution’s Case
1. Diamond Sanders’s testimony
Diamond Sanders was in a relationship with Lock between
2018 and 2021, and they have a son together, Amari. In
October 2020, when Sanders was pregnant with Amari, they
moved together into an apartment on West 40th Place in
Los Angeles. Both their names were on the lease agreement.
2
In August 2021 Sanders asked Lock to move out of the
apartment after he admitted to cheating on her. Lock agreed and
stopped spending nights at the apartment; however, he left most
of his belongings there and continued to come and go as he
pleased. Later that month, Sanders changed the locks on the
apartment to keep Lock out because he was drinking a lot, and on
multiple occasions he became irate and broke things. By the time
Sanders changed the locks, Lock had removed most of his
belongings except for some clothes and shoes. During the time
they lived together, Lock kept a handgun in a lockbox; by the end
of the month, the lockbox was no longer there.
After Lock moved out of the apartment, he and Sanders
stopped speaking on the phone and communicated primarily
through text messages using their social media accounts. Amari
continued to live with Sanders at the apartment but also spent
time with Lock’s mother, who lived a few blocks away. As of
early September 2021, Lock was still paying a large share of the
rent. After the relationship ended, Sanders began dating Reece,
a former high school boyfriend.
On September 3, 2021 Lock showed up unexpectedly at the
apartment door with three male companions. Sanders’s family
was visiting her at the time. Lock smelled of alcohol and acted
“obviously drunk.” Sanders let Lock into the apartment, but it
became clear he was “looking for confrontation,” and he started
yelling at Sanders and her family. He accused Sanders of
sleeping with Reece while Amari was in the bed. He broke the
television, slapped and hit Sanders’s uncle, and threatened her
sister. The sister pepper-sprayed Lock and called the police.
Lock went outside, and the situation was defused by the time the
3
police arrived. However, Lock inadvertently left his phone in the
apartment during the melee.
Over the next several days, Lock and Sanders exchanged
numerous social media messages, which were admitted at trial.
Lock expressed hostility toward Reece in several messages. On
September 9 he wrote to Sanders, “I’m only mad at one thing”
and “I care about literally nothing else”—that Sanders brought
“Captain Avon” “in my house.” “Captain Avon” referred to Reece
and was a negative allusion to Reece’s membership in the Avalon
street gang. On September 10 Lock wrote to Sanders, “U have a
whole ass nigga and left me homeless why can’t u just give me
my phone.”
During the same period, using a different social media
account, Lock wrote, “One shot one kill” and “I’m letting u know.
The nigga that was at my house not Fina live much longer.” He
continued, “It’s sad you don’t know how fR I’ll take it[.] Make
sure my baby at my momma house when it happens.” He added,
“You have until Friday to give me his address” and “Tell him good
luck.” Sanders did not take Lock’s threats seriously because Lock
was drinking a lot at the time.
On the morning of September 12, Reece borrowed Sanders’s
car while Sanders walked to Lock’s mother’s house to pick up
Amari. When Sanders got back to the apartment with Amari,
Reece told Sanders that a car had chased him and struck her car,
tearing off the bumper. After that incident, Reece remained in
the apartment with Sanders and Amari. At some point Lock sent
Sanders a message about picking up his phone. He asked, “Is
there someone over there with my son?” He added, “[I]f dude in
there I’m finna evict him.”
4
That afternoon Lock came to the apartment to get his
phone, and he spoke with Sanders through the front door screen.
When she refused to let Lock inside to see Amari or to give him
his phone, Lock threatened to call the police. But Sanders
admitted in cross-examination that Lock was otherwise polite
and he left her tablet computer at the door before walking away.
Even so, Sanders felt cautious after the September 3 incident and
decided to leave the apartment through the back door and place
Lock’s phone outside so she would not have to meet him.
When Sanders went out the back door, a man she did not
recognize, later identified as Lock’s cousin Joshua Tobin, shouted
to Lock that Sanders was in the back of the building. Lock ran
around the building and approached Sanders. She held Amari in
one hand and reached into her pocket with the other hand to get
Lock’s phone, but instead of taking the phone, Lock tried to pull
Sanders’s keychain out of her pocket. She fell to the ground
during the struggle, and Lock grabbed the keys. Lock repeatedly
shouted at the rear-facing apartment window that “Avon” was a
“bitch” and should come outside.
Lock tossed Sanders’s keys to Tobin, and the two men ran
in the direction of the front door of the apartment. Sanders
heard Lock tell Tobin to “get the gun,” and Tobin ran up to the
passenger side of a vehicle parked on the street before running
back toward the apartment. Sanders, concerned for Reece,
shouted at the window for him to leave through the back door.
Sanders then ran with Amari into the parking lot, got into her
car, and called the police.
Sanders later saw Lock and Tobin outside the apartment
heading toward their car; neither appeared to be bleeding or
show any signs of injury. Believing they had driven off, Sanders
5
approached the front of the apartment and saw that Reece was
lying on the floor inside, face-down, and he was not moving. She
observed that Lock was still in the area, and she went back to her
car to wait for the police.
2. The investigation and crime scene evidence
Los Angeles Police Officer Jose Solorzano arrived at the
scene around 4:00 p.m. on September 12. When Officer Solorzano
arrived, Lock and others were standing around a car that was
double-parked in the street. Lock walked up to Officer Solorzano
and said, “Sir, I just got here. I got home. He came up to me.
Tried to take my gun with both of his hands. Put it on my head,
and I shot.” Officer Solorzano went inside the apartment and
found Reece lying on the floor and nonresponsive. Paramedics
were unable to revive Reece, and he was pronounced dead at the
scene.
Los Angeles Police Detective John Meneses testified about
the investigation, and photographs of the crime scene were
admitted at trial. When Detective Meneses arrived at the
apartment, Reece’s body lay in the hallway of the apartment near
the kitchen area and back door. Reece had a bullet wound on his
left chest and another bullet wound on his upper back, and he
had cuts and scrapes on his arm and hand. There was blood
splatter in the kitchen, including on the floor, a trash can, and
the refrigerator. A spent nine-millimeter cartridge casing was
found in the hall leading into the kitchen area.
Investigators found another nine-millimeter spent casing
and a live round of the same caliber in the hallway outside of
Sanders’s bedroom, and a bullet hole through the bedroom door.
There was blood on the wall outside of the bedroom door and in
6
the hallway. The lower part of the exterior side of the bedroom
door was scuffed, the door frame was cracked, and the metal
jamb had detached from the frame and was found inside the
bedroom. The damage to the door appeared to be fresh. Inside
the bedroom, a window overlooking an alleyway had been broken;
there was glass on the windowsill and floor, and the window
blinds had blood on them.
Police criminalist and firearms analyst Matthew Saucedo
testified that he analyzed the damage to the bedroom door, and
based on the relative size and placement of the holes on each side
of the door, he determined the bullet that pierced the door had
been fired at a downward angle from outside the bedroom into
the room.
During a search of Lock and Tobin’s car parked at the
scene, police found a Springfield XD nine-millimeter
semiautomatic handgun registered to Lock on the front seat of
the vehicle.1 There was a live round in the gun’s chamber, and
officers found a magazine with live rounds in the car. The gun
was functional. The Springfield XD was notable for having two
safeties: a trigger safety common to similar semiautomatic
handguns and a grip safety. According to Detective Meneses, the
double safeties meant the Springfield XD could not discharge
unless the operator both held the gun from behind the grip and
properly placed his finger on the trigger.
Police criminalist Angela Bittbauer conducted DNA
analyses of samples obtained from the blood stains in the kitchen,
bedroom door, and window blinds. Reece was a contributor to
each of the blood stains, and Lock and Tobin were excluded as
1 Lock does not challenge the legality of the search.
7
contributors. Detective Meneses swabbed the Springfield XD gun
for DNA, and Bittbauer’s analysis showed Tobin was a
contributor to DNA found on the rear slide of the gun, while Lock
and Reece were excluded; other parts of the gun lacked sufficient
DNA for testing, or the tests were inconclusive.
An autopsy of Reece’s body confirmed he had suffered two
gunshot wounds; according to the medical examiner, the chest
wound was “rapidly fatal,” while the wound to his back was
limited to soft tissue in the shoulder, and Reece would have been
able to move after sustaining that injury. Two projectiles were
recovered from Reece’s body. The medical examiner opined that
the bullet that caused the fatal wound traveled front-to-back
from the left side of the chest downward and to the right, through
Reece’s heart, coronary artery, lung, and liver. Soot was found
around the chest entry wound, a hallmark of very close-range
firing, indicating that the gun was likely fired within a few inches
of Reece’s body.
3. Lock’s police interview
Detective Meneses and a partner interviewed Lock after he
was taken into custody. The videotaped interview was played for
the jury. Lock told the detectives he did not know what to expect
when he went to the apartment on September 12, but he brought
his gun because he was concerned about his son being in the
house with an Avalon gang member who knew Lock’s mother’s
address and had access to Lock’s phone and personal information.
Lock called ahead, and after he arrived at the apartment,
Sanders came out the back door with Amari, leaving the door
open. Lock heard noises inside the apartment and entered to
8
investigate. Reece was in the bedroom, peering through the
partially open door.
Lock ordered Reece to leave, and the two men began to
wrestle. Reece then lunged for Lock’s gun, which Lock had set
down on the dresser or television stand. Reece grabbed the gun
barrel with both hands while Lock held the trigger. As they
fought over the gun, it discharged prematurely. Lock stated, “for
sure only one shot was fired by me.” Lock believed the bullet hit
Reece in the abdomen, and Lock immediately called the police
and waited outside for the police and paramedics to arrive. He
initially said he fired the shot inside the bedroom but then stated
he was in the kitchen area. Lock explained that in the heat of
the moment he threw the gun on the floor and believed Tobin had
picked it up and disarmed it.
Later during the interview, Detective Meneses admonished
Lock it was critical not to omit or mischaracterize any details if
Lock truly was defending himself. Lock said the “only thing I left
out” was that Reece locked himself in the bedroom after spotting
Lock, and Lock kicked down the bedroom door and entered
without his gun, at which point they fought. Lock also admitted
he had grabbed Sanders’s keys from her pocket and used them to
go through the back door. He later stated it must have been the
front door because he left his gun on the television table in the
living room before encountering Reece in the bedroom.
After one of the detectives told Lock that this version of
events was inconsistent with evidence at the crime scene, Lock
explained that he in fact brought the gun into the bedroom after
kicking down the door, and the gun discharged upwards as he
and Reece struggled. They continued to fight over the gun in the
kitchen. The detective then told Lock that a criminalist was
9
already analyzing the trajectory of the ballistic evidence, and
Lock changed his statement again to say he fired the gun from
the hallway into the bedroom through the closed door. Lock
stated he thought Reece was at the far side of the bedroom and
aimed the gun upward because he was trying to scare Reece and
did not want to hurt him. After Lock kicked down the door,
Reece ran out of the bedroom and into the kitchen, where he tried
to climb out of the kitchen window. However, Reece was unable
to escape, and he turned back toward Lock and tried to grab the
gun in Lock’s hand, leading to the fatal struggle.
After the prosecution rested, Lock’s attorney moved under
section 1118.1 for a judgment of acquittal for the first-degree
burglary charge. The trial court denied the motion.
B. The Defense Case
Lock testified as the only defense witness. Lock worked as
a licensed security guard and owned a handgun he believed he
was authorized to carry. He and Sanders both signed the lease
agreement for the apartment, and he had not removed his name
from the lease, which was set to terminate in October 2021. Lock
and Sanders broke up at the beginning of September 2021, and
as of September 3, many of Lock’s belongings, including his
shoes, clothes, gaming console, and two guns were still in the
apartment. Lock never authorized Sanders to change the locks,
and he did not know that she had done so prior to the day of the
shooting.
With respect to the September 3 incident, Lock testified it
was Sanders and her family who physically attacked him, and he
was only trying to make sure Amari was safe. The day after that
incident, Lock learned that someone posted “AA’s most wanted”
10
next to a photograph of his identification card (bearing his
mother’s address) on his social media account. He understood AA
to refer to the Avalon gang. Two cars also pulled up outside his
mother’s house and rolled down their windows, leading him to
believe the Avalon gang was hunting him down. Lock “fled” to
Nevada the following day but was forced to return to Los Angeles
a few days later because he could not access his bank account or
any personal information. Lock tried to get his phone back from
Sanders on September 10, but she refused because he would not
agree to sleep with her.
On the morning of September 12, Lock and Sanders agreed
to meet and exchange his phone for her tablet. Around 3:30 p.m.,
after he got off work, Lock called Sanders to let her know he was
coming for the exchange. When he arrived at the apartment,
Sanders initially spoke to him through the front door screen, but
she came outside briefly to grab the tablet. She did not give Lock
his phone before going back inside, and he tried unsuccessfully to
use his key to open the door. He told Sanders he was going to call
the police, and he did, but he was afraid to wait outside the
apartment for the police to arrive because he thought Sanders
might have called someone who would drive up and shoot him in
the back. He did not hear anything inside the apartment.
When Sanders subsequently left through the back door
with Amari, Lock grabbed her keys from her back pocket,
although he did not push her to the ground. He then entered the
apartment through the front door. Upon entering, Lock and
Reece saw each other, and Reece told Lock to “squabble up,”
meaning Reece challenged Lock to a fight. But after noticing
Lock’s gun on the television stand, Reece ran into the bedroom.
Lock fired a “warning shot” through the bedroom door because he
11
thought Reece might be getting a gun from inside the bedroom,
although Lock never saw Reece with a gun.
After firing the warning shot, Lock “kicked the door open.”
Reece ran out, down the hallway, and toward the kitchen and
back door. Reece tried, but was unable to jump out of the rear
window, so he ran back toward Lock, who was still in the
hallway, and he tried to grab the gun out of Lock’s hand. Reece
grabbed both the barrel and the butt of the gun at once, and the
men struggled for about 10 seconds. The gun then discharged
four or five inches from Reece’s body. Lock testified he “didn’t
pull the trigger, per se,” and he certainly would have known if he
had. Lock and Tobin drove off after the shooting but quickly
returned to wait for the police.
During cross-examination, Lock admitted he asked Tobin to
get his gun before they entered the apartment. Lock was not
holding the gun when he first entered; rather, it was in the
holster on his duty belt from work that he was wearing.
Moreover, Lock had already set the gun down in the living room
before Reece first emerged from the bedroom and challenged Lock
to fight. After Reece ran back into the bedroom, both Lock and
Tobin stayed in the apartment, and Lock decided to pick up the
gun and run down the hallway toward the bedroom. Lock
admitted he could not see into the bedroom, and therefore he did
not know if anyone besides Reece was inside before firing through
the door. Lock acknowledged that he and Tobin did not leave the
apartment at this point, and he decided instead to kick down the
door. When Reece subsequently ran past him into kitchen, and
then back toward him, Lock held his gun by the grip the entire
time, although the muzzle of the gun was facing toward the
12
ground. Lock admitted he did not see a gun or a knife in Reece’s
hand when Reece ran back in Lock’s direction.
C. Jury Verdict and Sentencing
The jury found Lock guilty of second degree murder
(Pen. Code, § 187, subd. (a); count 1)2 and first degree residential
burglary (§ 459; count 2). The jury also found true the allegation
Lock personally used a firearm in the commission of the murder
(§ 12022.5, subd. (a)). In a bifurcated proceeding, the jury found
true as to count 1 the aggravating factors that the murder
involved acts disclosing a high degree of cruelty, viciousness, and
callousness (Cal. Rules of Court, rule 4.421(a)(1)) and that Lock
was armed with and used a weapon at the time of the offense
(rule 4.421(a)(2)).
The trial court sentenced Lock on count 1 to 15 years to life
for the murder plus the upper term of 10 years on the firearm
enhancement, and on count 2 to the middle term of four years, for
an aggregate sentence of 15 years to life plus 14 years.
Lock timely appealed.
DISCUSSION
A. The Trial Court Did Not Err in Instructing the Jury on Self-
defense Without Instructing on Sudden Escalation
1. Trial court proceedings
At a hearing on jury instructions during trial, the trial
court stated to counsel that it intended to instruct the jury with
CALCRIM No. 3471 (“Right to Self-Defense: Mutual Combat or
2 Further statutory references are to the Penal Code.
13
Initial Aggressor”), which is the pattern instruction for self-
defense where the defendant started a fight or engaged in mutual
combat. The court asked counsel to address the bracketed
language for the third element of the instruction.
CALCRIM No. 3471 states: “A person who (engages in
mutual combat/ [or who] starts a fight) has a right to self-defense
only if: [¶] 1. [He] actually and in good faith tried to stop
fighting[;] 2. [He] indicated, by word or by conduct, to [his]
opponent, in a way that a reasonable person would understand,
that [he] wanted to stop fighting and that [he] had stopped
fighting];] [ [AND] 3. [He] gave [his] opponent a chance to stop
fighting.] [¶] If the defendant meets these requirements [he] had
the right to self-defense if the opponent continued to fight.” The
bench notes for CALCRIM No. 3471 state, “Give bracketed
element 3 if the person claiming self-defense was engaged in
mutual combat.”
CACLRIM No. 3471 also includes the following bracketed
language on an opponent’s sudden escalation: “[I]f the defendant
used only non-deadly force, and the opponent responded with
such sudden and deadly force that the defendant could not
withdraw from the fight, then the defendant had the right to
defend [himself] with deadly force and was not required to try to
stop fighting[,] communicate the desire to stop to the
opponent[, or give the opponent a chance to stop fighting.]”3
Lock’s attorney argued the trial court should include the
bracketed language for the third element on mutual combat “out
of abundance of caution.” The prosecutor argued against
3 For convenience, we adopt Lock’s term for this bracketed
language as the “sudden escalation” instruction.
14
including the language on the basis there was no evidence of
“a[n] opportunity where the combat stopped going from the
testimony as far as when [Lock] said they were ‘tussling over the
gun.’”
The trial court found, “I don’t see this as mutual combat.
There’s a struggle over the weapon, yes, but the way the mutual
combat is described in this instruction . . . does not track with a
struggle over a weapon.”4 Following the close of testimony, the
court instructed the jury with the first two elements of CALCRIM
No. 3471, without the bracketed language for the third element of
mutual combat or the language on sudden escalation. The court
also instructed the jury with CALCRIM No. 3472 as follows: “A
person does not have the right to self-defense if he provokes a
fight or a quarrel with the intent to create an excuse to use force.”
The court did not give the bracketed language regarding sudden
escalation that is identical to the language in CALCIM No. 3471.5
2. Governing law and standard of review
In cases of homicide, “[s]elf-defense, when based on a
reasonable belief that killing is necessary to avert an imminent
4 CALCRIM No. 3471 defines mutual combat as follows: “A
fight is mutual combat when it began or continued by mutual
consent or agreement. That agreement may be expressly stated
or implied and must occur before the claim to self-defense arose.”
5 The trial court also instructed the jury with CALCRIM
Nos. 505 (“Justifiable homicide: self-defense or defense of
another”); 571 (“Voluntary manslaughter: imperfect self-
defense . . .”); and 3474 (“Danger no longer exists or attacker
disabled”). (Capitalization omitted.) Lock’s counsel did not object
to any of these instructions.
15
threat of death or great bodily injury, is a complete justification,
and such a killing is not a crime.” (People v. Elmore (2014)
59 Cal.4th 121, 133-134; see § 197, subds. (1) & (2) [homicide is
justifiable “[w]hen resisting any attempt to murder any person,
or to commit a felony, or to do some great bodily injury upon any
person” and “[w]hen committed in defense of habitation, property,
or person, against one who manifestly intends or endeavors, by
violence or surprise, to commit a felony”]; see also CALCRIM
No. 505.) “‘For killing to be in self-defense, the defendant must
actually and reasonably believe in the need to defend.’” (People v.
Humphrey (1996) 13 Cal.4th 1073, 1082; accord, People v. Horn
(2021) 63 Cal.App.5th 672, 682.)
A murder charge may also be mitigated by imperfect self-
defense. “If the belief [in the need to defend oneself] subjectively
exists but is objectively unreasonable, there is ‘imperfect self-
defense,’ i.e., ‘the defendant is deemed to have acted without
malice and cannot be convicted of murder,’ but can be convicted of
manslaughter.” (People v. Humphrey, supra, 13 Cal.4th at
p. 1082; accord, People v. Horn, supra, 63 Cal.App.5th at p. 682;
see People v. Booker (2011) 51 Cal.4th 141, 182 [“Imperfect self-
defense is the killing of another human being under the actual
but unreasonable belief that the killer was in imminent danger of
death or great bodily injury.”].)
The right to self-defense or imperfect self-defense is
generally not available to a defendant who is the initial
aggressor, provokes a fight, or engages in mutual combat.
(CALCRIM Nos. 3471, 3472.) The Supreme Court has “explained
that ‘the ordinary self-defense doctrine—applicable when a
defendant reasonably believes that his safety is endangered—
may not be invoked by a defendant who, through his own
16
wrongful conduct (e.g., the initiation of a physical attack or the
commission of a felony), has created circumstances under which
his adversary’s attack or pursuit is legally justified.’” (People v.
Valencia (2008) 43 Cal.4th 268, 288; accord, People v. Enraca
(2012) 53 Cal.4th 735, 761.)
However, even if the defendant is the initial aggressor,
provocateur, or mutual combatant, “‘“where [a] counter assault is
so sudden and perilous that no opportunity [is] given to decline
further to fight and [the defendant] cannot retreat with safety he
is justified in slaying in self-defense.”’” (People v. Salazar (2016)
63 Cal.4th 214, 249; see People v. Ramirez (2015) 233 Cal.App.4th
940, 943 (Ramirez) [“A person who contrives to start a fistfight or
provoke a nondeadly quarrel does not thereby ‘forfeit[] . . . his
right to live’” and may defend himself “‘even when [he] set in
motion the chain of events that led the victim to attack the
defendant.’”].)
The bench notes for CALCRIM No. 3472 state the trial
court should give the bracketed language on sudden escalation “if
the defendant intended to provoke only a non-deadly
confrontation and the victim responded with deadly force.” (See
People v. Eulian (2016) 247 Cal.App.4th 1324, 1334 [“CALCRIM
No. 3472 is generally a correct statement of law, which might
require modification in the rare case in which a defendant
intended to provoke only a non-deadly confrontation and the
victim responds with deadly force”]; cf. Ramirez, supra,
233 Cal.App.4th at p. 950 [trial court erred in giving CALCRIM
No. 3472 without addressing sudden escalation because the
instruction “entirely precluded defendants’ self-defense claim,”
17
even though “the original victim escalated a nondeadly conflict to
deadly proportions”].)6
A trial court has a duty to instruct on general principles of
law applicable to the case that are “““closely and openly
connected with the facts before the court, and which are
necessary for the jury’s understanding of the case.””” (People v.
Valdez (2004) 32 Cal.4th 73, 115; accord, People v. Young (2005)
34 Cal.4th 1149, 1200.) However, “‘[a] trial court must give a
requested [jury] instruction only if it is supported by substantial
evidence, that is, evidence sufficient to deserve jury
consideration.’” (People v. Leon (2020) 8 Cal.5th 831, 848; accord,
People v. Nguyen (2015) 61 Cal.4th 1015, 1049 [“‘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.”’”].) Even absent a
request, the court must sua sponte instruct the jury on “any
affirmative defense for which the record contains substantial
evidence [citation]—evidence sufficient for a reasonable jury to
find in favor of the defendant [citation]—unless the defense is
inconsistent with the defendant’s theory of the case.” (People v.
Salas (2006) 37 Cal.4th 967, 982 (Salas); accord, People v. Mentch
(2008) 45 Cal.4th 274, 288.)
Substantial evidence in the instructional context is
evidence ““‘sufficient ‘to deserve consideration by the jury,’ not
‘whenever any evidence is presented, no matter how weak.”””
(People v. Wilson (2005) 36 Cal.4th 309, 331; accord, People v.
Larsen (2012) 205 Cal.App.4th 810,823; see People v. Alexander
6 The bench notes for CALCRIM No. 3471 do not address
when a court should give the bracketed language on sudden
escalation.
18
(2010) 49 Cal.4th 846, 920-921 [“‘“[B]efore a jury can be
instructed that it may draw a particular inference, evidence must
appear in the record which, if believed by the jury, will support
the suggested inference.”’”].) An instruction is not required
where only “[s]peculative, minimal, or insubstantial evidence”
supports the instruction. (People v. Simon (2016) 1 Cal.5th 98,
132, 134.) “In determining whether the evidence is sufficient to
warrant a jury instruction, the trial court does not determine the
credibility of the defense evidence, but only whether ‘there was
evidence which, if believed by the jury, was sufficient to raise a
reasonable doubt.’” (Salas, supra, 37 Cal.4th at pp. 982-983.) In
deciding whether to give a defense instruction, the court must
“view the evidence in the light most favorable to the defendant.”
(People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
We review a defendant’s claims of instructional error de
novo. (People v. Simon, supra, 1 Cal.5th at p. 133 [“We review de
novo a trial court’s decision not to give an imperfect self-defense
instruction.”]; see People v. Cole (2004) 33 Cal.4th 1158, 1217
[“‘Whether or not to give any particular instruction in any
particular case entails the resolution of a mixed question of law
and fact [and] . . . should be examined without deference’”;
whether to instruct on the meaning of terms is “predominately
legal” and is reviewed de novo].)
3. Substantial evidence did not support instruction on
sudden escalation
Lock contends the trial court erred in instructing the jury
with CALCRIM Nos. 3471 and 3472 but omitting the bracketed
instructions on sudden escalation because the jury “needed to
understand the sudden escalation principle in order to correctly
19
apply the law in the event it made factual determinations
favorable to the defense theory of the case.”7 Substantial
evidence did not support instructions on sudden escalation.
As discussed, the sudden escalation instructions in
CALCRIM Nos. 3471 and 3472 recognizes that the initial
aggressor, provocateur, or mutual combatant may claim a right to
self-defense if he initially used “only non-deadly force” and his
opponent “responded with such sudden and deadly force that the
defendant could not withdraw from the fight.” (See People v.
Salazar, supra, 63 Cal.4th at p. 249; Ramirez, supra,
233 Cal.App.4th at p. 943.) Neither element is met in this case.
It is undisputed that Lock was the first to apply deadly
force in his confrontation with Reece. Even under Lock’s trial
testimony, Lock grabbed Sanders’s keys, yelled to Tobin to bring
Lock’s semiautomatic handgun, and entered the locked
apartment with the gun. Although Lock testified that it was
Reece who first spoke and told Lock to “squabble up,” it is
undisputed that Reece did not physically engage Lock; instead,
after seeing Lock’s gun, Reece ran down the hall and into the
bedroom. It is also undisputed that Lock pursued Reece down
the hall, fired the gun through the bedroom door knowing Reece
was inside, and kicked down the door, at which point Reece ran
past Lock into the kitchen. Lock also recounted that Reece tried
to escape through the kitchen window, and only after he could
7 The People contend Lock forfeited his instructional error
claim by failing to request instruction on sudden escalation. We
decline to find forfeiture because Lock’s attorney argued for a
more complete instruction, although he focused on the third
element of mutual combat and not sudden escalation.
20
not escape did he run back toward Lock and try to grab the gun
out of Lock’s hand, leading to a struggle and the fatal shot.
The forensic evidence, which was substantially
unchallenged at trial, corroborated Lock’s initial use of deadly
force. Blood spatter and ballistics evidence from the hallway,
bedroom, and bedroom door, and the two bullets recovered from
Reece’s body, showed that Reece was either shot while in the
bedroom or injured while trying to escape through the bedroom
window as Lock fired through the door (with Reece’s blood
splattering on the window blinds). The prosecution also
presented unchallenged evidence that Lock intended to use
deadly force against Reece. In his messages to Sanders, Lock
repeatedly threatened to kill Reece, posting the messages “One
shot one kill” and that the “nigga that was at my house not Fina
live much longer,” and he directed that Amari not be at Sanders’s
apartment “when it happens.”
Moreover, there was no evidence that Reece responded to
Lock’s initial aggression with sudden and deadly force that
prevented Lock from withdrawing. On the contrary, although
Lock testified he thought Reece might have gone into the
bedroom to get a gun, Lock admitted during cross-examination
that Reece was not visibly armed when Reece ran out of the
bedroom and into the kitchen, and Reece was not carrying either
a gun or a knife when he ran back toward Lock and tried to grab
Lock’s gun. Lock also admitted he had multiple opportunities to
leave the apartment but chose instead to pursue Reece.
On appeal, Lock argues there was evidence that would
have allowed a reasonable jury, if properly instructed, to find
that he “entered his apartment believing his life was in danger
and Reece’s emergence from the bedroom affirmed the
21
reasonableness of this belief.” Lock points to the messages and
testimony showing he knew Reece was a member of the Avalon
gang and his belief that Avalon members drove by his mother’s
house after the September 3 incident and were hunting down
Lock. He argues these fears were exacerbated by Sanders’s
strange behavior at the front door when Lock went to pick up his
phone, which instilled in Lock an “unshakeable fear” that
someone might drive up and shoot him in the back if he remained
outside the apartment. Lock also points to his testimony that he
did not pursue Reece into the kitchen and instead remained in
the hallway by the bedroom door with his gun pointed downward.
Further, he asserts, the gun discharged only because Reece ran
back at Lock and grabbed both the front and the back of the gun.
But even assuming the jury believed all these facts, they
supported instruction on self-defense and imperfect self-defense
(as the trial court instructed); the facts did not show Lock
initially used non-deadly force or that Reece used deadly force
and prevented Lock from withdrawing.
Finally, Lock’s contention that Reece’s attempt to wrestle
the gun out of Lock’s hand constituted a sudden escalation fails.
Lock cites no authority for the proposition that an attempt by an
unarmed opponent to take a gun away from an armed initial
aggressor constitutes a sudden escalation. Lock’s contention
would immunize an armed assailant from the killing of an
unarmed, wounded victim if the victim made a last-ditch attempt
to disarm the shooter.
22
B. Substantial Evidence Supported Lock’s Burglary Conviction
1. Governing law and standard of review
The crime of burglary is committed when a person “enters
any . . . apartment . . . with intent to commit . . . larceny or any
felony . . . .” (§ 459.) The offense includes “two important
aspects” that derive from the common law: “A burglary remains
an entry which invades a possessory right in a building. And it
still must be committed by a person who has no right to be in the
building.” (People v. Gauze (1975) 15 Cal.3d 709, 714 (Gauze);
accord, People v. Sherow (2011) 196 Cal.App.4th 1296, 1308, fn.
omitted.) “[A] possessory right is the right to exert control over
property to the exclusion of others.” (People v. Salemme (1992)
2 Cal.App.4th 775, 779; accord, People v. Garcia (2017)
17 Cal.App.5th 211, 223.)
Based on these limitations, the Supreme Court in Gauze
held that a “defendant cannot be guilty of burglarizing his own
home.” (Gauze, supra, 15 Cal.3d at p. 714; accord, People v.
Garcia, supra, 17 Cal.App.5th at p. 224.) In Gauze, the
defendant was convicted of assault with a deadly weapon and
burglary after he quarreled with one of his roommates in their
apartment, left the apartment, reentered with a shotgun, and
shot the roommate. (Gauze, at p. 711.) The Supreme Court
reversed the defendant’s burglary conviction, reasoning that his
“entry into the apartment, even for a felonious purpose, invaded
no possessory right of habitation . . . . More importantly,
defendant had an absolute right to enter the apartment . . . that
could not be conditioned on the consent of defendant’s
roommates.” (Id. at p. 714; accord, Garcia, at p. 224.)
23
Nonetheless, a person can be guilty of burglarizing his
apartment if he “abandon[s] his unconditional possessory interest
in the apartment by moving out.” (People v. Ulloa (2009)
180 Cal.App.4th 601, 609 (Ulloa).) The holding in Ulloa is
instructive. In that case the jury convicted the defendant of
burglary based on evidence he broke down the door of the
apartment he had shared with his wife until their separation four
months earlier, took money from her purse, and punched holes in
the bathroom door. (Id. at p. 606.) The Court of Appeal affirmed,
rejecting the defendant’s contention his conviction should be
reversed on the basis he was a signatory on a lease that was
operative at the time of the burglary and his legal right of
possession provided a complete defense under Gauze, supra,
15 Cal.3d 709. (Ulloa, at pp. 606, 610.) The Court of Appeal
reasoned that “even assuming defendant had a possessory
interest in the apartment under the lease at the time of the
charged crimes, . . . there was substantial evidence he had moved
out of the apartment prior to the crimes and therefore no longer
had an unconditional possessory interest in the apartment unit.”
(Id. at pp. 606-607, italics added.) The defendant’s abandonment
of an unconditional possessory interest was bolstered by evidence
he and his wife “were estranged and separated due to having
serious marital problems; [he] had voluntarily moved out of the
apartment; [he] had committed prior domestic violence against
[his wife]; and [his wife] feared [him].” (Id. at p. 610, citing
People v. Gill (2008) 159 Cal.App.4th 149, 161 [although husband
had a possessory interest to the family home, “[b]y voluntarily
leaving the house, giving up his house keys . . . , and heeding the
directives of [the wife] to stay out of the family home, defendant
waived his unconditional right to enter the home”].) The Ulloa
24
court also observed that the defendant “yelled at [the wife] from
outside the apartment at 5:00 a.m. and broke in,” which
supported “a reasonable inference . . . defendant no longer had a
key to the apartment and entered without [the wife’s] consent.”
(Ulloa, at p. 610.)8
“In evaluating a claim regarding the sufficiency of the
evidence, we review the record ‘in the light most favorable to the
judgment below to determine whether it discloses substantial
evidence—that is, evidence which is reasonable, credible, and of
solid value—such that a reasonable trier of fact could find the
defendant guilty beyond a reasonable doubt.’” (People v.
Westerfield (2019) 6 Cal.5th 632, 713; accord, People v. Penunuri
(2018) 5 Cal.5th 126, 142.) “‘Conflicts and even testimony which
is subject to justifiable suspicion do not justify the reversal of a
8 The Ulloa court determined that Gauze, supra, 15 Cal.3d
709 did not foreclose a theory of abandonment of possession.
(Ulloa, supra, 180 Cal.App.4th at p. 608.) The court in Ulloa, at
pages 607 to 608 observed that 10 years before Gauze, in People
v. Sears (1965) 62 Cal.2d 737, overruled on other grounds in
People v. Cahill (1993) 5 Cal.4th 478, 509-510, the Supreme
Court held that a husband could be convicted of burglary where
he had moved out of his wife’s property, returned weeks later,
entered through an unlocked door, and assaulted the wife’s
daughter. (Sears, at pp. 740-741, 746 [“since defendant had
moved out of the family home three weeks prior to the crime, he
could claim no right to enter the residence of another without
permission”].) The Gauze court distinguished Sears on the basis
the husband’s right to enter the home “was at best conditional”
because it arose from a statutory right to enter a spouse’s
separate property, and in any event, “‘entry for anything but a
legal purpose was a breach of his wife’s possessory rights.’”
(Gauze, at p. 715; see Ulloa, at p. 608.)
25
judgment, for it is the exclusive province of the trial judge or jury
to determine the credibility of a witness and the truth or falsity of
the facts upon which a determination depends.’” (People v.
Jackson (2014) 58 Cal.4th 724, 749.)
2. Substantial evidence supported a finding that Lock
did not have an unconditional possessory interest in
the apartment on September 12, 2021
Lock argues that under Gauze, supra, 15 Cal.3d at
page 714, he could not be convicted of burglary because he had a
right to enter the apartment after his breakup with Sanders, as
shown by the evidence that his name remained on the lease, he
was still paying rent, he left his possessions in the apartment,
and he could come and go from the apartment as he pleased.
While those circumstances may have existed after Lock and
Sanders broke up sometime in August 2021 (and Lock’s and
Sanders’s names remained on the lease), there was substantial
evidence that Lock did not have an “unconditional possessory
interest” at the time of the burglary on September 12. (See
Ulloa, supra, 180 Cal.App.4th at pp. 606-607.) In particular,
although Sanders admitted that after the breakup Lock left his
clothes and other possessions in the apartment and would come
and go as he pleased, Sanders testified that by the end of August,
Lock had removed nearly all of his possessions, and Sanders
changed the locks to prevent him from entering the apartment.
Lock testified he was unaware that Sanders had changed
the locks prior to September 12, but this does not show he
retained a possessory interest in the apartment. On
September 3, for example, although Sanders opened the door for
Lock, he was clearly unwelcome, regardless of whether the jury
26
believed Sanders that Lock was the aggressor in threatening
Sanders’s family or Lock’s version that it was Sanders and her
family who physically attacked him. Further, Lock admitted he
and Sanders had permanently separated, and in his text
messages he acknowledged he was no longer living in the
apartment. For example, on September 10 Lock sent a message
to Sanders, “U . . . left me homeless why can’t u just give me my
phone.”
Most importantly, Lock’s actions on September 12 showed
he did not have an unconditional right to enter the apartment.
Even under Lock’s version of events, Sanders refused to allow
him inside the apartment, and Lock tried to use his key but found
it did not work. Lock then confronted Sanders outside the
apartment and forcibly grabbed her keys without her consent.
After getting his gun from Tobin, Lock used Sanders’s keys to
gain entry. Having forced his way into the apartment he had
vacated at least two weeks earlier and from which he was
expressly excluded, Lock’s “entry for anything but a legal purpose
was a breach of his [former partner’s] possessory rights.” (Gauze
supra, 15 Cal.3d at p. 715; accord, Ulloa, supra, 180 Cal.App.4th
at p. 608.)
Because substantial evidence supported Lock’s burglary
conviction, Lock’s contention the trial court erred in denying his
motion for acquittal also fails. “‘The standard applied by a trial
court in ruling upon a motion for judgment of acquittal pursuant
to section 1118.1 is the same as the standard applied by an
appellate court in reviewing the sufficiency of the evidence to
support a conviction, that is, “whether from the evidence,
including all reasonable inferences to be drawn therefrom, there
is any substantial evidence of the existence of each element of the
27
offense charged.”’” (People v. Stevens (2007) 41 Cal.4th 182, 200;
accord, People v. Lamb (2024) 16 Cal.5th 400, 442.) However,
“‘“[t]he sufficiency of the evidence is tested at the point the
motion is made,””’ and the determination of whether the evidence
is sufficient to show the defendant abandoned his or her
unconditional possessory interest in property is a question of law
subject to independent review. (Stevens, at p. 200; accord, Lamb,
at p. 442.) Although we have focused on Lock’s testimony during
the defense case, including his version of his entry into the
apartment, at the time of the acquittal motion the prosecutor had
presented Sanders’s testimony that explained the same events,
Lock’s text messages, and the recordings of Lock’s police
interview that similarly provide substantial evidence that Lock
abandoned his unconditional possessory interest in the
apartment.
Finally, Lock contends the trial court erred in failing sua
sponte to instruct the jury under Gauze that he could not commit
burglary of his own apartment. However, substantial evidence
did not support Lock’s affirmative defense that he had an
unconditional possessory interest. (See Salas, supra, 37 Cal.4th
at p. 982.) As discussed, although Lock testified he still regarded
the apartment as his property after the breakup and was
unaware that Sanders had changed the locks, it is undisputed
that he voluntarily stopped sleeping there; he removed most of
his belongings; he did not access the apartment in the two weeks
prior to September 12 (apart from the hostile incident on
September 3); on September 12 Sanders refused him entry, and
he learned his keys did not work; and he forcibly grabbed
Sanders’s keys and armed himself before entering.
28
C. Any Error in Instructing the Jury on the Alleged
Aggravating Factors Was Harmless
Lock contends the trial court violated his Sixth Amendment
right to a jury trial on aggravating factors by failing to instruct
the jury sua sponte with CALCRIM Nos. 3224 and 3225
regarding the alleged aggravating factors under California Rules
of Court, rule 4.421(a)(1) and (a)(2).9 Any error was harmless
beyond a reasonable doubt.
At a bifurcated proceeding on the alleged aggravating
factors, the trial court explained to the jury that aggravating
factors “only come into play when the defendant is found to be
guilty,” and that each factor’s existence must be proved beyond a
reasonable doubt. As to the rule 4.421(a)(1) factor, the court
instructed the jury that the People must prove “the manner in
which the defendant carried out the crime in count 1, murder,
involved great violence, great bodily injury, and other acts
disclosing a high degree of cruelty, viciousness, and callousness
within the meaning of [the rule].” As to the rule 4.421(a)(2)
factor, the court instructed the jury that the People must prove
“the defendant was armed and used a weapon at the time of the
commission of murder, count 1, within the meaning of [the
rule].”10
9 Further references to rules are to the California Rules of
Court.
10 The People also alleged the murder showed planning,
sophistication, and professionalism (rule 4.421(a)(8)), but the jury
found the allegation was not true.
29
The trial court relied on the jury’s true finding under
rule 4.21(a)(1) in sentencing Lock to the upper term of 10 years
for the firearm enhancement on the murder count.11 The court
declined to exercise its discretion to impose less than the upper
term, explaining that Lock’s actions were “particularly callous” in
that he trapped Reece in the bedroom, where Reece was unable to
escape out of the window because the window had bars; then
Lock kicked the door down and shot Reece at close range instead
of letting him escape.
In March 2023 (more than a year before Lock’s
August 2024 trial), the Judicial Council published new jury
instructions, including CALCRIM Nos. 3224 and 3225, to
implement recent changes to section 1170, subdivision (b)(2), in
light of case law holding a defendant has a constitutional right to
a jury finding on aggravating factors. (See People v. Lynch (2024)
16 Cal.5th 730, 769 (Lynch) [CALCRIM Nos. 3234 through 3251
were “drafted to guide the jury’s deliberations” under § 1170,
subd. (b)(2)]; Chavez Zepeda v. Superior Court (2023)
97 Cal.App.5th 65, 91 (Chavez Zepeda) [“while this appeal was
being briefed, the Judicial Council developed jury instructions for
11 of the aggravating factors in rule 4.421”].)
11 Lock argues the trial court erred in relying on “either or
both” rule 4.421(a)(1) and (a)(2) in imposing the upper-term
sentence for the firearm enhancement. However, the court
explained in imposing the upper term that it selected this term
based on the “aggravating factors that the jury found to be true,
specifically, rule of court 4.421, subsection (a), subsection (1).”
The court observed that the jury also found the rule 4.421(a)(2)
factor to be true, but it then set forth its reasoning for why it
found Lock’s actions were “particularly callous.”
30
CALCRIM No. 3224 states, in relevant part, that to prove
the existence of the rule 4.421(a)(1) aggravating factor, the
People must prove “1. During the commission of the crime, the
defendant used great violence or inflicted great bodily harm, or
threatened to inflict great bodily harm, or committed other acts
showing a high degree of cruelty, viciousness, or callousness; [¶]
AND [¶] 2. The type/level of violence, or bodily harm, or threat
of bodily harm, or cruelty, viciousness, or callousness was
distinctively worse than what was necessary to commit the
crime.” (Brackets, punctuation, and conjunctions modified.) The
instruction also includes bracketed language defining
“viciousness,” “cruelty,” “callousness,” and great bodily harm,”
among other terms.12
On appeal, Lock contends the trial court committed
prejudicial error under Chapman v. California (1967) 386 U.S. 18
(Chapman), requiring reversal of the sentence on the firearm
enhancement, by failing to instruct the jury on the requirement
under the CALCRIM instructions that there was proof the
aggravating conduct was “distinctively worse than the ordinary
12 CALCRIM No. 3225 states in relevant part that to prove
the rule 4.421(a)(2) aggravating factor, the People must prove the
defendant, while committing the subject crime, “knowingly
carried a weapon,” “knowingly had a weapon available for use,”
“intentionally displayed a weapon in a menacing manner,” or
“intentionally fired a weapon.” (Punctuation omitted.) The
instruction also states, “You may not find the allegation true
unless all of you agree that the People have proved that the
defendant’s conduct was distinctively worse than an ordinary
commission of the underlying crime.”
31
commission of the underlying crime.”13 (See People v. Hendrix
(2022) 13 Cal.5th 933, 942 [“Among the constitutional errors
subject to Chapman review is misinstruction of the jury on one or
more elements of the offense.”]; cf. Lynch, supra, 16 Cal.5th at
p. 768 [holding with respect to trial court’s imposition of an
upper-term sentence without a jury finding on aggravating
factors that a defendant is entitled to resentencing if the
appellate court cannot determine “that a jury would have found
true all of the aggravating facts relied upon by the trial court to
justify an upper term sentence, or that those facts were otherwise
proved true in compliance with the current statutory
requirements”].)
The Attorney General contends there was no error because
the jury was sufficiently advised that Lock’s conduct must have
been “aggravated” and go beyond the requirements of a murder
conviction in light of the trial court’s instruction that the
prosecution had alleged “‘aggravating factors . . . that only come
13 Lock also argues the trial court erred by not instructing the
jury with CALCRIM No. 3224’s definitions of “viciousness,” “great
bodily harm,” and other terms used in rule 4.421(a)(1). We agree
with the Attorney General that Lock forfeited this contention by
his attorney’s failure to request the instructions. (See People v.
Buenrostro (2018) 6 Cal.5th 367, 428 ([“‘[a] party may not argue
on appeal that an instruction correct in law was too general or
incomplete, and thus needed clarification, without first
requesting such clarification at trial’”]; People v. Lee (2011)
51 Cal.4th 620, 638 [“[a] trial court has no sua sponte duty to
revise or improve upon an accurate statement of law without a
request from counsel [citation], and failure to request clarification
of an otherwise correct instruction forfeits the claim of error for
purposes of appeal”].)
32
into play when the defendant is found to be guilty.’” Further, the
Attorney General argues, the commonsense understanding of an
“aggravating factor” is that it is something that “makes the crime
more serious or more culpable.” (Cf. People v. Covarrubias
(2016) 1 Cal.5th 838, 902 [the term “‘natural and probable
consequences’” in the murder instruction was “not a special legal
term that require[d] additional definition”].)14
We are not aware of any published case addressing
whether a trial court must use the 2023 pattern instructions to
instruct on aggravating factors or whether the 2023 instructions
contain a correct statement of the law. (See Lynch, supra,
16 Cal.5th at p. 769 [“Because Lynch did not receive a jury trial
under the provisions of current section 1170(b)(2), we have no
occasion to opine on the correctness of the CALCRIM jury
instructions.”]; Chavez Zepeda, supra, 97 Cal.App.5th at p. 91,
fn. 6 [“We are not called upon to decide whether the phrase
‘distinctively worse than an ordinary commission of the
underlying crime’ in the instructions accurately articulates that
14 The Attorney General also points to the Merriam-Webster
dictionary’s definition of an “aggravating circumstance” as “a
circumstance relating to the commission of an act that increases
the degree of liability or culpability.” (Merriam-Webster’s Online
Dictionary (2026) <https://www.merriam-webster.com/dictionary/
aggravatingcircumstance> (as of Nov. 5, 2026) archived at
<https://perma.cc/WW6P-4XJ9>; see Cambridge Dictionary
(2026) <https://dictionary.cambridge.org/
us/dictionary/english/aggravate> (as of Nov. 5, 2026) archived at
<https://perma.cc/JK7Z-6D4V> [defining “aggravate” to mean “to
make a bad situation worse”].)
33
requirement as applied in the case law or is consistent with
constitutional vagueness standards.”].)15
Even if the trial court erred by failing to instruct the jury
that Lock’s conduct must be “distinctively worse than the
ordinary commission” of murder, we conclude beyond a
reasonable doubt under Chapman that the jury would still have
found the rule 4.421(a)(1) aggravating factor true had the court
instructed the jury with this language in CALCRIM No. 3224.
(Lynch, supra, 16 Cal.5th at p. 768.)
The trial court instructed the jury in the first phase of trial
that to convict Lock of murder (in the second degree), the People
needed to prove he committed an act that caused Reece’s death
with malice aforethought and without lawful excuse or
justification. The court further instructed that Lock could be
convicted on an implied malice theory without any showing that
he bore hatred or ill will toward Reece. The firearm
enhancement, in turn, required proof that Lock “personally used
a firearm” in the commission of the murder by intentionally
having “display[ed] the weapon in a menacing manner,” “hit[]
someone with the weapon,” or “fire[d] the weapon.” There was an
abundance of evidence that Lock’s conduct was “distinctively
worse” than the elements required for a murder conviction and a
15 We observe that the “distinctively worse than the ordinary
commission” language in CALCRIM Nos. 3224 and 3225 is not
found in rule 4.421 or in section 1170. Instead, it is derived from
earlier case law addressing sentencing factors. (See e.g., People
v. Black (2007) 41 Cal.4th 799, 817, overruled on another ground
in People v. Wiley (2025) 17 Cal.5th 1069, 1085 [explaining with
respect to use of a fact to deny probation and impose an upper-
term sentence that “[a]n aggravating circumstance is a fact that
makes the offense ‘distinctively worse than the ordinary.’”].)
34
true finding that Lock personally used a firearm in committing
the crime. (See Chavez Zepeda, supra, 97 Cal.App.5th at p. 89
[courts applying “distinctively worse” standard for aggravating
circumstances “have considered whether the manner of the
crime’s commission was distinctively worse ‘when compared to
other ways in which such a crime could be committed.’”].)
With respect to the murder, there was substantial evidence
that Lock, after entering the apartment with the key he grabbed
from Sanders and a loaded gun, pursued Reece after Reece
retreated into a locked bedroom, fired the gun through the
bedroom door, kicked in the door, and continued to “hunt” Reece,
who was bloodied, unarmed, and clearly trying to escape, before
ultimately killing him. With respect to the firearm enhancement,
Lock did not merely brandish or discharge his gun; rather, there
was substantial evidence he fired the gun through the bedroom
door at chest level, continued holding the gun with its safeties
disengaged while Reece tried to escape, and then fired a second,
fatal shot through Reece’s heart from a few inches away.
After the trial court instructed the jury on the
requirements for an aggravating factor under rule 4.421(a)(1),
the jury found that the manner in which Lock committed the
murder involved great violence and acts that showed “a high
degree of cruelty, viciousness, and callousness.” We conclude
beyond a reasonable doubt that had the court also instructed the
jury with CALCRIM No. 3224, the jury would have found Lock’s
conduct was “distinctively worse” than the murder and firearm
enhancement.
35
DISPOSITION
The judgment is affirmed.
FEUER, J.
We concur:
MARTINEZ, P. J.
STONE, J.
36