Filed 10/2/26 P. v. Lozano CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H051789
(Santa Cruz County
Plaintiff and Respondent, Super. Ct. No. F13318)
v.
MARIO ALBERTO LOZANO,
Defendant and Appellant.
Defendant Mario Alberto Lozano was found guilty in 2023 of one count of first
degree murder, two counts of dissuading a witness, and various special allegations. The
jury rejected his heat of passion (provocation) voluntary manslaughter defense. He was
sentenced to life without the possibility of parole.
On appeal, defendant asserts the jury was given a misleading instruction on the
concept of subjective provocation necessary to reduce the murder from first degree to
second degree. He challenges his witness dissuasion convictions, contending that there is
insufficient evidence that he tried to discourage the witnesses from reporting a crime and
that the jury was incorrectly instructed on specific intent. He also challenges the
sufficiency of the evidence that he attempted to dissuade one witness with the use of a
weapon. Finally, he asserts that defense counsel rendered ineffective assistance by
conceding guilt on the witness dissuasion counts and associated weapons allegations. For
the reasons explained here, we will affirm.
I. BACKGROUND
A. TRIAL EVIDENCE
At around 400 p.m. on December 3, 2004, defendant chased Isaac Guzman into
the middle of a four-lane road and stabbed him to death with a knife. Guzman was killed
a few feet in front of stopped traffic on the roadway.
As defendant jogged away from the scene, the nearest driver followed in her car
while calling 911. When interviewed by police, she described the stabbing and stated
that when defendant was next to her car and still holding the knife, he lifted his shirt and
“puffed his chest” as though “he was going to jump at the car.” When defendant raised
his shirt, she saw that he was wearing a red belt, which she thought could be gang related.
She became scared and stopped following defendant.
A man and his teenage son also witnessed the killing from their truck. They called
911 as they watched defendant jog away. Before disappearing from view, defendant
turned around to look at them and raised his knife as if he was going to stab them.
Defendant and Guzman were members of feuding subsets of the Norteño criminal
street gang. Defendant had been dating Guzman’s cousin for several months before the
murder and Guzman disapproved of that relationship. After defendant started dating
Guzman’s cousin, he and Guzman fought three times. About two months before the
murder, Guzman shot defendant in the arm.
Defendant fled to Mexico after killing Guzman. He was arrested and extradited to
California in 2018. A video recording of defendant’s police interview was played for the
jury. In the interview, defendant initially claimed that he was going to see a friend near
Guzman’s high school when he unexpectedly encountered Guzman and confronted him
about the shooting. The two men started fighting, and Guzman pulled out a knife but
then dropped it. Defendant picked up the knife and when Guzman tried to run away,
defendant chased him and stabbed him after Guzman tripped on a garbage can.
Later in the interview, defendant admitted “[i]t was my knife,” but still denied
specifically looking for Guzman. He said they started fighting and Guzman ran away
when he saw the handle of the knife in defendant’s pocket. Defendant explained that he
2
pulled the knife out as soon as Guzman started running because he “wanted him to pay
for what he did to me.” He described chasing Guzman with thoughts of “[r]evenge,
anger,” and when Guzman tripped he “just started stabbing.”
Defendant ultimately admitted in the interview that on the morning of Guzman’s
murder he stole the biggest knife he could find at a store. He then went to Guzman’s
high school looking for him in order to get revenge for the shooting. After a brief
fistfight, defendant pulled out the knife. Guzman tried to run away, but defendant chased
him into the street, stabbed him in the back and continued stabbing after Guzman tripped
and fell onto his stomach.
The defense called no trial witnesses and defendant did not testify.
B. VERDICT AND SENTENCE
As relevant here, defendant was charged with the premeditated murder of Guzman
(Pen. Code § 187, subd. (a); count 1), and with dissuading the two witnesses who called
911 (§ 136.1, subd. (b)(1); counts 2 and 3).1 As to all counts the information alleged
defendant personally used a deadly weapon. (§ 12022, subd. (b)(1).) Defense counsel
conceded guilt as to the witness dissuasion charges and associated weapon allegations,
but counsel argued that the killing of Guzman was voluntary manslaughter due to heat of
passion provocation. Defense counsel alternatively argued that the jury could find
sufficient provocation to reduce first degree murder to second degree murder.
The jury found defendant guilty as charged on all counts in the information. The
trial court sentenced defendant to two consecutive life sentences without the possibility of
parole, consecutive to determinate sentences on counts 2 and 3 plus deadly weapon
enhancements for a total of three years.
1
The information also alleged that defendant committed multiple murders.
(§ 190.2., subd. (a)(3).) The multiple murder allegation applied based on the jury’s guilty
verdict on counts reflecting defendant’s participation in the gang-related murder of fellow
jail inmate German Carrillo while in custody awaiting trial for Guzman’s murder. We do
not discuss the factual or procedural history of Carrillo’s murder here as defendant does
not challenge that conviction.
3
II. DISCUSSION
A. JURY INSTRUCTIONS ON PROVOCATION
Although defendant did not object to the pattern instruction on provocation
(CALCRIM No. 522) or request an additional clarifying instruction, he contends the trial
court had an independent duty to instruct the jury that in order to reduce first degree
murder to second degree, only subjective provocation must be shown. Defendant argues
that because the jury was only explicitly instructed regarding the concept of objective
provocation for purposes of reducing murder to voluntary manslaughter (CALCRIM
No. 570), it is reasonably likely that the jury incorrectly applied an objective provocation
standard in determining whether there was sufficient provocation to reduce a murder
from first degree to second degree. The Attorney General counters that defendant
forfeited this claim by not objecting to the instruction at trial, and that the instructions
were substantively correct and even if incorrect, any error was harmless.
Defendant acknowledges that he did not object to CALCRIM No. 522 or request a
separate instruction on the subjective standard of provocation, but he argues the issue is
not forfeited because the error affects his substantial rights. (See § 1259.) Defendant
alternatively contends his trial counsel was ineffective for failing to object. Assuming
without deciding that an objection was not required to preserve the issue, we will
consider the merits of defendant’s argument. (See People v. Hernandez (2010)
183 Cal.App.4th 1327, 1331, fn. 2 (Hernandez) [addressing similar challenge despite lack
of trial objection].)
1. Standard Of Review
We review claims of instructional error de novo. (People v. Posey (2004)
32 Cal.4th 193, 218.) When reviewing a potentially ambiguous or misleading instruction,
we view it in the context of the trial record and instructions as a whole to determine
whether there is a reasonable likelihood the jury applied the instruction improperly.
(People v. Mitchell (2019) 7 Cal.5th 561, 579; People v. Ayala (2000) 24 Cal.4th 243,
4
289 (Ayala).) We assume jurors are intelligent people and are capable of understanding
and correlating the instructions given. (People v. Ramos (2008) 163 Cal.App.4th 1082,
1088–1089 (Ramos).)
A trial court has an independent duty to instruct the jury on the general principles
of law relevant to the issues raised by the evidence. (Hernandez, supra,
183 Cal.App.4th at p. 1331.) Even if the court has no independent duty to instruct on a
particular legal point, when it does choose to instruct, it must do so correctly. (People v.
Castillo (1997) 16 Cal.4th 1009, 1015.) Once the trial court adequately instructs the jury
on the law, it has no further duty to give clarifying instructions absent a request.
(Hernandez, at p. 1331.)
2. Murder, Manslaughter and Provocation
First degree murder is an unlawful killing with malice aforethought,2
premeditation, and deliberation. (People v. Chun (2009) 45 Cal.4th 1172, 1181; § 187,
subd. (a).) A killing is premeditated if considered beforehand and deliberate if resulting
from careful thought and the weighing of competing considerations. (People v. Lee
(2011) 51 Cal.4th 620, 636.) Second degree murder is an unlawful killing with malice,
but without premeditation and deliberation. (Chun, at p. 1181.) A heat of passion arising
from provocation that precludes deliberation or premeditation renders a murder second
degree. (Hernandez, supra, 183 Cal.App.4th at p. 1332 [“If the provocation would not
cause an average person to experience deadly passion but it precludes the defendant from
subjectively deliberating or premeditating, the crime is second degree murder.”].)
Provocation in this context is not a defense but rather a theory of reasonable doubt as to
2
Malice may be express or implied. (People v. Swain (1996) 12 Cal.4th 593,
600–601.) It is express when “there is manifested a deliberate intention unlawfully to
take away the life of a fellow creature; it is implied, when no considerable provocation
appears, or when the circumstances attending the killing show an abandoned and
malignant heart.” (Ibid.) Proof of intent to kill is the functional equivalent of express
malice. (Ibid; see also People v. Saille (1991) 54 Cal.3d 1103, 1114 [interpreting Penal
Code section 188 to mean malice is established where killing is intentional].)
5
the first degree murder elements of premeditation or deliberation. (People v. Lee (1994)
28 Cal.App.4th 1724, 1733–1734.) The inquiry into a defendant’s subjective mental state
at the time of the killing must include whether the killing was in fact due to provocation.
(People v. Fitzpatrick (1992) 2 Cal.App.4th 1285, 1295–1296; People v. Jones (2014)
223 Cal.App.4th 995, 1000 (Jones).)
Manslaughter is killing without malice. (§ 192, subd. (a).) “Manslaughter is a
lesser included offense of murder, and a defendant who commits an intentional and
unlawful killing but who lacks malice is guilty of voluntary manslaughter. Heat of
passion is one of the mental states that precludes the formation of malice and reduces an
unlawful killing from murder to manslaughter.” (People v. Nelson (2016) 1 Cal.5th 513,
538; People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman), disapproved on
another ground in People v. Schuller (2023) 15 Cal.5th 237, 260 fn. 7 (Schuller).) Heat
of passion is “caused by legally sufficient provocation that causes a person to act, not out
of rational thought but out of unconsidered reaction to the provocation.” (People v.
Beltran (2013) 56 Cal.4th 935, 942 (Beltran).)
A heat of passion theory of voluntary manslaughter has both objective and
subjective components. (People v. Moye (2009) 47 Cal.4th 537, 549.) Under both
elements, provocation may be anything that arouses intense fear, anger, or jealousy.
(People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704.) But a mere “desire for
revenge cannot objectively satisfy the provocation requirement.” (People v. Souza
(2012) 54 Cal.4th 90, 117 (Souza).) To prove the objective element of voluntary
manslaughter based on provocation, the provocation must be so great that it would have
caused a person of average disposition to act rashly and without due deliberation, that is,
from passion rather than judgment. (People v. Enraca (2012) 53 Cal.4th 735, 759.) To
prove the subjective element, the defendant “must be shown to have killed while under
‘the actual influence of a strong passion’ induced by such provocation.” (Moye, at
p. 550.) Thus, “[i]f sufficient time has elapsed between the provocation and the fatal
blow for passion to subside and reason to return, the killing is not voluntary
manslaughter—‘the assailant must act under the smart of that sudden quarrel or heat of
6
passion.’ ” (Beltran, supra, 56 Cal.4th at p. 951.) When both the objective and
subjective elements are satisfied, the defendant is deemed to have acted without malice
and is guilty only of voluntary manslaughter. (People v. Lasko (2000) 23 Cal.4th 101,
108.) The prosecution must disprove heat of passion beyond a reasonable doubt to
establish the element of malice. (Schuller, supra, 15 Cal.5th at p. 253.)
3. The jury was properly instructed
The jury received standard instructions on homicide (CALCRIM No. 500), malice
aforethought (CALCRIM No. 520), degrees of murder (CALCRIM No. 521),
provocation (CALCRIM No. 522), and voluntary manslaughter due to sudden quarrel or
in the heat of passion (CALCRIM No. 570). The court informed the jury that murder is a
killing with malice aforethought, and that if it decided the defendant committed murder,
it must decide whether it was murder of the first or second degree. (CALCRIM Nos. 520
& 521.) The court further instructed that first degree murder requires a willful, deliberate
and premeditated killing; that deliberation exists where the defendant decides to kill after
a careful weighing of the considerations for and against his choice; that premeditation
exists where the defendant decides to kill before committing the act that caused death;
and that “[a] decision to kill made rashly, impulsively, or without careful consideration is
not deliberate and premeditated.” (CALCRIM No. 521.)
The court instructed the jury regarding provocation using CALCRIM No. 522 as
follows: “Provocation may reduce a murder from first degree to second degree and may
reduce a murder to manslaughter. The weight and significance of the provocation, if any,
are for you to decide. [¶] If you conclude that the defendant committed murder but was
provoked, consider the provocation in deciding whether the crime was first or second
degree murder. Also, consider the provocation in deciding whether the defendant
committed murder or manslaughter.” The court then instructed the jury using CALCRIM
No. 570 regarding the objective standard applicable to provocation which reduces murder
to voluntary manslaughter: “It is not enough that the defendant simply was provoked,”
and in “deciding whether the provocation was sufficient, [you must] consider whether a
7
person of average disposition, in the same situation and knowing the same facts, would
have reacted from passion rather than from judgment.”
Read as a whole and in context, the instructions were neither incomplete nor
misleading. We therefore see no reasonable likelihood that under the instructions given
the jury would have applied an incorrect objective standard in finding that the purported
provocation was insufficient to reduce first degree murder to second degree. (See Ayala,
supra, 24 Cal.4th at p. 289.)
The courts in Hernandez, Jones, and People v. Ocegueda (2023)
92 Cal.App.5th 548, 558–559 (Ocegueda), rejected similar challenges to CALCRIM
No. 522. Ocegueda and Jones considered the distinction between an objective standard
of provocation for voluntary manslaughter and the subjective standard for second degree
murder. Neither court found instructional error where only CALCRIM No. 522 was
given to inform the jury specifically that the objective provocation test did not apply to
the question of the degree of murder. (Jones, supra, 223 Cal.App.4th at p. 1001; accord,
Ocegueda, at pp. 558–559 [“The instructions were therefore clear that the existence of
deliberation and premeditation, including the theory that they were not present due to
provocation, were based on Ocegueda’s subjective mental state alone” and not based on
an “objective test.”].) Indeed the Hernandez court reasoned that CALCRIM No. 522
“plainly states the jury should consider provocation for both second degree murder and
manslaughter. There is nothing in the instruction that suggests the jury might have failed
to fully consider the provocation evidence for second degree murder based on a rejection
of the evidence for manslaughter.” (Hernandez, supra, 183 Cal.App.4th at p. 1335.)3
3
Defendant incorrectly asserts that Hernandez did not consider whether when
CALCRIM Nos. 522 and 570 are given together, the jury would understand that the
provocation that reduces murder from first degree to second degree should be measured
under an objective standard. Although Hernandez does not use the terms subjective and
objective provocation, it addresses and rejects essentially the same argument that
defendant makes here, namely that CALCRIM No. 522 is incomplete and misleading
because the jury might have incorrectly applied the objective provocation standard
applicable to voluntary manslaughter to its determination of whether the murder should
8
We find Ocegueda, Jones and Hernandez persuasive and conclude there is no
reasonable likelihood the instructions in this case “might have misled the jury to believe
that to reduce murder from first to second degree, provocation must meet the same
objective test that leads to a reduction to voluntary manslaughter.” (Ocegueda, supra,
92 Cal.App.5th at pp. 558–559; Jones, supra, 223 Cal.App.4th at p. 1001; Hernandez,
supra, 183 Cal.App.4th at p. 1335.) As in those cases, CALCRIM No. 570 here was the
only instruction stating that subjective provocation alone is not enough to reduce murder
to manslaughter, and that “[t]he provocation would have caused a person of average
disposition to act rashly and without due deliberation, that is, from passion rather than
judgment.” The instructions thus limited objective provocation to the elements of the
lesser offense of voluntary manslaughter.
We also conclude that under those instructions, a reasonable jury would not have
found subjective provocation at the time of the stabbing yet still convicted defendant of
first degree murder. Rather, if the jury had found that defendant had in fact been
provoked, the only remaining question would have been whether the killing was second
degree murder or voluntary manslaughter. As the court found in Hernandez, “[a]lthough
CALCRIM No. 522 does not expressly state provocation is relevant to the issues of
premeditation and deliberation, when the instructions are read as a whole there is no
reasonable likelihood the jury did not understand this concept.” (Hernandez, supra,
183 Cal.App.4th at p. 1334.) We are not persuaded otherwise by defendant’s argument
that when CALCRIM Nos. 522 and 570 are given together, the jury might misunderstand
that the objective provocation prong of the voluntary manslaughter determination also
applies to the reduction from first degree to second degree murder.
Defendant speculates the jury here might have understood that the term
provocation had a single (i.e., “objective”) meaning as defined in CALCRIM 570. We
acknowledge the argument but are unpersuaded, as jurors are presumed to be aware of
be reduced from first to second degree based on a finding of subjective provocation.
(Hernandez, supra, 183 Cal.App.4th at p. 1335.)
9
the common meaning of the term provocation, which requires no further explanation
absent a specific request. (People v. Cole (2004) 33 Cal.4th 1158, 1217–1218 (Cole); see
also Souza, supra, 54 Cal.4th at p 118.)
The common understanding of provocation is something that arouses a person’s
emotions and causes them to act out in anger. (People v. Ward (2005) 36 Cal.4th 186,
215 [“The evidentiary premise of a provocation defense is the defendant’s emotional
reaction to the conduct of another, which emotion may negate a requisite mental state.”];
see also Hernandez, supra, 183 Cal.App.4th at p. 1334 [provocation means something
than provokes, arouses, or stimulates; provoke means to arouse to a feeling or action; to
incite to anger.].) The subjective usage of provocation calls for its commonsense
meaning. It is only the objective usage that carries a specialized meaning, which
CALCRIM No. 570 accurately conveys by starting with the ordinary, dictionary
definition of provocation and then qualifying it in the necessary ways.
4. The instructions were not prejudicial
We also conclude on this record that any instructional error regarding the concept
of provocation would have been harmless. (People v. Watson (1956) 46 Cal.2d 818,
836.) Under that standard, we review incorrect, ambiguous, conflicting, or omitted
instructions not rising to federal constitutional error to determine whether it is reasonably
probable a result more favorable to the defendant would have been obtained absent the
error. (Beltran, supra, 56 Cal.4th at p. 955.)4
4
The purported instructional error here is not subject to review under the higher
federal standard in Chapman v. California (1967) 386 U.S. 18. Even assuming, without
deciding, that the record contains substantial evidence of provocation, the trial court
provided legally correct instructions on murder, provocation and voluntary manslaughter.
Therefore, any purported error regarding the provocation instruction does not rise to a
federal error because the jury was not precluded from making a finding on any factual
issue necessary to establish the element of malice, deliberation or premeditation in
finding defendant guilty of first degree murder. (Compare Schuller, supra, 15 Cal.5th at
p. 243 [when the record contains substantial evidence of imperfect self-defense, the trial
court’s failure to instruct on that theory amounts to constitutional error and is thus subject
to the federal Chapman standard].)
10
The jury was instructed on first degree murder (CALCRIM No. 521) and it found
Guzman’s killing was premeditated, deliberate, and willful. The jury therefore found
defendant’s conduct involved planning or deliberation that would be inconsistent with
acting under a heat of passion. Thus defendant could not have been prejudiced by any
purported error in not clarifying that only his subjective sense of provocation applied to
the jury’s determination of first degree versus second degree murder. (People v. Wharton
(1991) 53 Cal.3d 522, 571 [affirming first degree murder conviction where trial court
should have provided a pinpoint instruction on provocation and heat of passion].)
The jury’s first degree murder finding was also supported by very strong evidence,
including defendant’s explicit statements to investigators that he planned to kill Guzman
as revenge for Guzman shooting him months earlier, as well as defendant’s former
girlfriend’s testimony about defendant telling her after he was shot that Guzman “had
something coming to him.” Given that evidence, it is debatable whether defendant was
entitled to a voluntary manslaughter instruction.5 (See Breverman, supra, 19 Cal.4th at p.
163 [passion for revenge cannot reduce murder to voluntary manslaughter]; Souza, supra,
54 Cal.4th at p 117 [defendant not entitled to heat of passion voluntary manslaughter
instruction where defendant’s actions were consistent with planned revenge].) By finding
defendant guilty of first degree murder, the jury clearly rejected defendant’s provocation
defense.
B. SUFFICIENCY OF THE EVIDENCE
Defendant contends the evidence was insufficient to show he tried to discourage
either of the witnessing drivers from reporting a crime (as charged in the information) or
causing his arrest (as stated in the jury instruction). He argues that the motions and
5
Indeed, the trial court did debate whether to instruct on heat of passion voluntary
manslaughter (CALCRIM 570) at all, given the evidence that defendant killed Guzman
as revenge for a shooting that had occurred two months before the killing. Ultimately the
trial court decided to give the instruction “in an abundance of caution,” because it was the
only possible defense.
11
gestures described by both witnesses were too indistinct to prove that their purpose was
to dissuade either of them from reporting the crime.
Penal Code section 136.1 prohibits dissuading a victim or witness. (People v.
Hallock (1989) 208 Cal.App.3d 595, 606.) The statute provides in relevant part: “Except
as provided in subdivision (c) [addressing more serious attempts to prevent or dissuade
punishable as felonies], a person who attempts to prevent or dissuade another person who
has been the victim of a crime or who is witness to a crime from doing any of the
following is guilty of a public offense ... : [¶] (1) Making a report of that victimization to
a peace officer, a state or local law enforcement officer, probation, parole or correctional
officer, a prosecuting agency, or a judge.” (Pen. Code, § 136.1, subd. (b)(1).) “To show
a defendant has violated [Penal Code] section 136.1, subdivision (b)(1), the People must
prove ‘(1) the defendant has attempted to prevent or dissuade a person (2) who is a victim
or witness to a crime (3) from making any report of his or her victimization to any peace
officer or other designated officials.’ ” (People v. Reyes (2020) 56 Cal.App.5th 972,
982.) “Specific intent is required for all violations of section 136.1.” (People v. Brackins
(2019) 37 Cal.App.5th 56, 66.)
To assess evidentiary sufficiency, we review the entire record to determine
whether any rational trier of fact could have found the essential elements of the crime or
special circumstances beyond a reasonable doubt. (People v. Zamudio (2008)
43 Cal.4th 327, 357 (Zamudio).) The record must disclose substantial evidence to
support the verdict such that a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt based on evidence that is reasonable, credible, and of solid
value. We review the evidence in the light most favorable to the judgment and presume
the existence of every supporting fact the jury could reasonably have deduced from the
evidence. A reversal for insufficient evidence is unwarranted unless it appears that upon
no hypothesis whatever is there sufficient substantial evidence to support the jury’s
verdict. (Ibid.) The standard is the same under both the California Constitution and the
federal Constitution. (People v. Jimenez (2019) 35 Cal.App.5th 373, 392.)
12
“Substantial evidence includes circumstantial evidence and any reasonable
inferences drawn from that evidence.” (In re Michael D. (2002) 100 Cal.App.4th 115,
126.) Specific intent may be inferred from circumstantial evidence provided that
evidence leads to a reasonable inference of intent. (Cole, supra, 33 Cal.4th at p. 1222;
People v. Pimental (1970) 6 Cal.App.3d 729, 734.) Indeed, evidence of a defendant’s
state of mind is often circumstantial (i.e., inferred from the facts and circumstances
surrounding the offense) because intent and knowledge are rarely established through
direct evidence. (People v. Rios (2013) 222 Cal.App.4th 542, 567–568.) And we must
accept all logical inferences the jury might have drawn from circumstantial evidence.
(People v Maury (2003) 30 Cal.4th 342, 396.) “ ‘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.]’ Where the circumstances reasonably justify the trier of fact’s
findings, a reviewing court’s conclusion the circumstances might also reasonably be
reconciled with a contrary finding does not warrant the judgment’s reversal.” (Zamudio,
supra, 43 Cal.4th at pp. 357–358.)
1. Witness Testimony
After a woman witnessed defendant chase and repeatedly stab Guzman in front of
her car, she called 911 and followed him in her car as he left the scene on foot. At trial,
she described seeing defendant chase Guzman and she also remembered that defendant
lifted his shirt in her view. The prosecution introduced and the court admitted her audio
recorded police interview as a past recollection recorded. The witness stated in her
interview that she had already called 911 after seeing what she initially thought was
defendant “beating up” Guzman. At some point, however, she saw defendant using a
knife to stab and slash Guzman. As defendant walked away, she followed him in her car;
she “got kind of scared because he went like this to my car. He got next to it [¶…¶].
And then he went like this to my car… . He pulled up his shirt and he showed…a red
belt and a white [t]-shirt.” Without saying anything, he “puffed his chest [¶…¶] like he
13
was going to jump at the car” while still holding his knife. She “started [to] worry”
because “I thought he was tryin’ to scare me… . By saying, ‘I totally could do something
to you,’ like—like if I said something – because I was following him – kind of, like, to
keep me away from following him.” She thought his red belt may have been gang related
and she believed that defendant was trying to stop her from following him.
The second eyewitness driver was in his truck (with his son as a passenger) when
he witnessed defendant kill Guzman. He watched defendant as he jogged away from the
scene. Before defendant disappeared from view, he turned and looked at the witness and
gestured with his hands “as if he was going to stab” him, holding the knife in his right
hand and raising it up to about shoulder level. The prosecution also played a video
recording of the police interviewing the man’s son, who also witnessed defendant kill
Guzman. In the interview, the son described that defendant “stuck the knife up and he
like threatened us.” He elaborated that as defendant started jogging away from the scene
with the knife still in his hand, they had already called 911 and were following a few
meters behind defendant in their car. As defendant was about to disappear from view, he
“just looked at us and like just stuck the knife up in the air.”
2. Substantial evidence supports the verdict
The jury heard the male driver’s testimony and his son’s police statement each
describing that defendant turned and looked at them and raised his knife threateningly as
if to stab them. The jury heard similar testimony from the female driver that as she was
following defendant, he got next to her car (still holding the knife he had just used to
murder Guzman) and gestured as if he would jump at it. Those people had all witnessed
defendant stab Guzman to death. The jury could infer from their statements that
defendant was aware of several witnesses who had just seen him kill Guzman and that the
two drivers were following him in order to report the crime to police and communicate
defendant’s current location so that he could be arrested. The jury could also reasonably
infer that defendant made the threatening gestures specifically to intimidate and
discourage the drivers from reporting the crime and preventing his escape. Indeed, there
is no other apparent reason why defendant would threaten the drivers.
14
We reject defendant’s argument that section 136.1, subdivision (b)(1) does not
apply here because the witnesses had already reported the crime before he threatened
them and therefore any gestures toward them were meant to stop them from following
him, not to dissuade them from reporting a crime. According to defendant, any threats he
made were intended only to prevent his arrest and therefore would violate section 136.1,
subdivision (b)(3), but not subdivision (b)(1). But section 136.1, subdivision (b)(1) is
violated when a defendant interferes with an attempt by a victim or witness to contact
police during an ongoing crime. (People v. Sherman (2022) 86 Cal.App.5th 402, 414–
415 [collecting cases].) In arguing otherwise, defendant’s reliance on People v. Morones
(2023) 95 Cal.App.5th 721 is misplaced. In Morones, the court ruled that the
“defendant’s repeated and consistent attempts to get his children to lie to law
enforcement regarding their victimization [defendant’s act of firing a gun while the
children were in the house] did not constitute a violation” of section 136.1,
subdivision (b)(1) (id. at p.738) because that section does not pertain “to any
supplemental or follow up report in which details already reported are simply confirmed
or reviewed.” (Id. at p. 736.) The circumstances in Morones are distinguishable from
defendant threatening two witnesses as they talked to 911 operators.
C. INSTRUCTIONAL ERROR ON WITNESS DISSUASION WAS HARMLESS
The trial court instructed the jury on the general elements of section 136.1 with
CALCRIM No. 2622: “To prove that the defendant is guilty of this crime, the People
must prove that: [¶] 1. The defendant tried to discourage [the two drivers] from causing
the arrest of anyone in connection with a crime; [¶] 2. [Each of the two drivers] was a
witness; [¶] AND [¶] 3. The defendant knew he was trying to discourage [the two
drivers] from reporting the crime and intended to do so.” (Italics added.)
Defendant contends that the jury was not properly instructed regarding the
elements of section 136.1 because the instruction combined two alternative elements of
the offense such that the jury was not required to find defendant had the specific intent to
commit the act he was alleged to have committed. The Attorney General concedes the
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error, but contends it was harmless beyond a reasonable doubt because defense counsel
conceded that defendant was guilty of the witness dissuasion charges.
A trial court’s failure to instruct on necessary elements is subject to the Chapman
standard for assessing prejudice: whether it can be found beyond a reasonable doubt that
the error complained of did not contribute to the verdict obtained. (People v. Merritt
(2017) 2 Cal.5th 819, 832; Neder v. U.S. (1999) 527 U.S. 1, 15.) Overwhelming
evidence, other properly given instructions, or a defendant’s concession of elements for
which an instruction was omitted may render such an error harmless. (People v. Williams
(1997) 16 Cal.4th 635, 689; accord, Merritt, at p. 827 [if omitted “elements were
uncontested and supported by overwhelming evidence, it would not necessarily follow
that the trial was fundamentally unfair”]; People v. Flood, 18 Cal.4th 470, 504 [failing to
instruct on an element of the offense is harmless “where the defendant concedes or
admits that element”].)
Considering the trial record and the instructions in context, we find the error was
harmless beyond a reasonable doubt. As we have noted, evidence of defendant’s guilt of
the witness dissuasion charges was strong, and defense counsel conceded as much to the
jury.
D. SUFFICIENT EVIDENCE SUPPORTS THE ASSOCIATED WEAPONS FINDING
Defendant also challenges the sufficiency of the evidence supporting the jury’s
true finding under section 12022, subdivision (b)(1) that he personally used a deadly
weapon in his interaction with the female driver which violated section 136.1,
subdivision (b)(1). Defendant acknowledges that he was still holding the knife he had
just used to kill Guzman when he gestured at the witness, but he asserts that simply
holding the knife without more does not constitute “use” of a weapon under the statute.
He argues that because the woman never claimed that he threatened her with the knife, he
at most only passively displayed the weapon. (See People v. Hays (1983)
147 Cal.App.3d 534, 548–549 [mere passive display of a weapon not sufficient to support
a finding of weapon use within the meaning of section 12022.5].) The Attorney General
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argues that substantial evidence supports the enhancement because defendant “used” the
knife merely by holding it as he made threatening gestures towards the woman.
Section 12022, subdivision (b)(1) provides in relevant part: “Any person who
personally uses a deadly or dangerous weapon in the commission of a felony or attempted
felony shall be punished by an additional and consecutive term of imprisonment in the
state prison” for one year. (§ 12022, subd. (b)(1).) Whether a defendant used a weapon
in committing a crime is a question for the trier of fact. (People v. Masbruch (1996)
13 Cal.4th 1001, 1007.) We review the question for substantial evidence.
We conclude that substantial evidence supports the jury’s finding that defendant
intentionally “used” the knife by displaying it while threatening the witness which
facilitated his underlying effort to dissuade her from reporting his crime or causing his
arrest. (See People v. Granado (1996) 49 Cal.App.4th 317, 325 (Granado) [articulating
rule requiring weapon-related conduct coupled with facilitated intent to distinguish “use”
from mere possession in context of section 12022.53].) Granado’s “litmus test” makes a
functional distinction between “use” of the weapon and mere “incidental conduct”: “did
the defendant take some action with the gun in furtherance of the commission of the
crime? If so the gun was “used.” If, on the other hand, the defendant engaged in no
weapons related conduct, or such conduct was incidental and unrelated to the offense, no
“use” occurred. (Granado, at p. 324, fn. 7.)
The jury could have reasonably inferred from the woman driver’s testimony and
from the circumstances of defendant having just killed a man in the street that defendant
used the knife to threaten and intimidate her by openly holding it as a tacit threat, in
addition to more explicitly threatening gestures toward her. The jury could also
reasonably infer that defendant continued to hold and display the knife for the purpose of
intimidating and threatening witnesses to the killing because there is no other apparent
reason to openly carry a weapon just used in a deadly attack. (Granado, supra,
49 Cal.App.4th at p. 325.)
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E. NO INEFFECTIVE ASSISTANCE OF COUNSEL
Defendant contends his trial counsel’s concession of guilt on the witness
dissuasion counts (and associated weapons allegations) constituted ineffective assistance
of counsel. He also argues that the concession prejudiced him on the murder charge
because it removed from the jury’s consideration evidence that would have supported a
finding of provocation. He further argues the concession effectively admitted he was
acting rationally within moments after stabbing Guzman, which increased the chances
that the jury would find him guilty of first degree murder.
“To establish ineffective assistance of counsel, a defendant must show that
(1) counsel’s representation fell below an objective standard of reasonableness under
prevailing professional norms, and (2) counsel’s deficient performance was prejudicial,
i.e., there is a reasonable probability that, but for counsel’s failings, the result would have
been more favorable to the defendant. [Citation.] ‘A reasonable probability is a
probability sufficient to undermine confidence in the outcome.’ ” (People v. Scott (1997)
15 Cal.4th 1188, 1211–1212; Strickland v. Washington (1984) 466 U.S. 668, 694; People
v. Homick (2012) 55 Cal.4th 816, 893, fn. 44.) The claim fails if the showing on either
component is insufficient. (Homick, at p. 893, fn. 44.) If the record sheds no light on
why counsel acted or failed to act in the manner challenged, an appellate claim of
ineffective assistance must be rejected unless counsel was asked for an explanation and
failed to provide one, or there simply could be no satisfactory explanation. (People v.
Carter (2003) 30 Cal.4th 1166, 1211.)
We must defer to counsel’s reasonable tactical decisions in reviewing a claim of
ineffective assistance of counsel, and there is a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance. (People v. Hinton
(2006) 37 Cal.4th 839, 876.) “Judicial scrutiny of counsel’s performance must be highly
deferential. It is all too tempting for a defendant to second-guess counsel’s assistance
after conviction or adverse sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable. [Citation.] A fair assessment of attorney
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performance requires that every effort be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time. Because of the difficulties
inherent in making the evaluation, a court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance; that
is, the defendant must overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’ [Citation.] There are
countless ways to provide effective assistance in any given case. Even the best criminal
defense attorneys would not defend a particular client in the same way.” (Strickland v.
Washington, supra, 466 U.S. at p. 689.) Conceding a client’s guilt for appropriate
tactical reasons is not deficient performance. (People v. Avena (1996) 13 Cal.4th 394,
446–447.)
Defense counsel’s strategy was apparently to argue that defendant was guilty of
voluntary manslaughter rather than murder because Guzman had provoked defendant by
shooting him about two months before the killing. As the Attorney General observes,
defense counsel apparently viewed the case as one in which the evidence of defendant’s
guilt might be tempered by an admission of the far less serious witness dissuasion
charges. Defense counsel may have further hoped that a concession would lend
credibility to defendant’s claim that he acted on Guzman’s provocation and not because
he planned to kill him for revenge.
We conclude that given the strong evidence of defendant’s guilt, his counsel
reasonably could have decided that candor was his best strategy. “[S]ensible concessions
are an acceptable and often necessary tactic.” (People v. Gamache (2010)
48 Cal.4th 347, 393 [frank acknowledgment of the seriousness of client’s actions was
“tactically justifiable”]; People v. Gurule (2002) 28 Cal.4th 557, 610–612 [concession
that client was guilty of robbery and felony murder did not constitute ineffective
assistance]; People v. Mayfield (1993) 5 Cal.4th 142, 177 [candor can be an effective
tool]; People v. Freeman (1994) 8 Cal.4th 450 , 498 [“Recognizing the importance of
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maintaining credibility before the jury, we have repeatedly rejected claims that counsel
was ineffective in conceding various degrees of guilt.”].)
F. NO ADMONITION OR WAIVER REQUIRED
Defendant acknowledges that under current California decisional authority,
defense counsel is permitted to concede defendant’s guilt as long as the defendant has not
objected. (See McCoy v. Louisiana (2018) 584 U.S. 414; and People v. Lopez (2019) 31
Cal.App.5th 55, 66.) Nonetheless, he argues that “the better practice is for defendants to
be informed of their right not to have counsel concede guilt and to personally affirm or
object to the concession on the record before closing argument.”
As an initial matter, defendant does not claim that he actually objected to
counsel’s tactical concession of guilt. It also seems unlikely that defendant would have
kept silent here if he disagreed with the concession. Defendant unsuccessfully sought to
replace his appointed counsel before trial based on complaints (which the trial court
determined were unfounded) that his attorney was inexperienced and not sufficiently
committed to his case. Defendant also attempted to replace his counsel during trial,
complaining about counsel’s decision not to give an opening statement, counsel’s failure
to interview or cross-examine certain prosecution witnesses, and counsel’s failure to
object to certain evidence.
Defendant’s argument is inconsistent with controlling authority. Because a
concession made during closing argument is not tantamount to a guilty plea, and there is
no evidence that defendant raised any objection to conceding guilt on the witness
dissuasion charges and related allegations, it was “not the trial court’s duty to inquire
whether the defendant agrees with his counsel’s decision to make a concession”. (People
v. Cain (1995) 10 Cal.4th 1, 30, overruled on other grounds in People v. Moon (2005)
37 Cal.4th 1, 17; see also Florida v. Nixon (2004) 543 U.S. 175, 188 [when counsel
confers with client who neither approves nor protests the concession strategy, no blanket
rule demands explicit consent to implement the strategy].)
III. DISPOSITION
The judgment is affirmed.
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____________________________________
Grover, J.
WE CONCUR:
____________________________
Greenwood, P. J.
____________________________
Lie, J.
H051789
The People v. Lozano