Filed 10/19/26 P. v. Quintanilla CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE B337111
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. NA119846
v.
MARCO QUINTANILLA,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Chestopher L. Taylor, Judge. Affirmed and
remanded with directions.
Jennifer A. Mannix, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Charles C. Ragland, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Wyatt E. Bloomfield and Chelsea Zaragoza,
Deputy Attorneys General for Plaintiff and Respondent.
‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
Appellant Marco Quintanilla challenges his convictions for
second degree murder, possession of a firearm by a prohibited
person, and possession of ammunition by a prohibited person. He
claims that the trial court erred by declining to instruct on
voluntary manslaughter based on heat of passion. He also claims
that CALCRIM No. 372 is unconstitutional because it
discriminates against people of color by permitting the jury to
infer consciousness of guilt based on flight after the commission
of a crime. We reject both claims. We also exercise our inherent
authority to correct two sentencing errors and modify the
judgment as to counts 2 and 3. We remand with directions, but
otherwise affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
I. Facts
A. Alexander Chhay
On June 13, 2022, at about 10:30 p.m., Alexander Chhay
saw two men in the middle of the street while driving on Long
Beach Boulevard in Long Beach, California. Chhay saw one of
the men point a gun at the other man. Chhay heard a gunshot
and saw the second man fall. He stopped his car in the middle of
the street and called 911. Chhay saw the shooter get into a white
or light-colored four-door sedan with a dark bumper and drive
away.
B. Ivan Montero
On June 13, 2022, Ivan Montero called Quintanilla to “get
high” with the Xanax pills he purchased. Montero knew
Quintanilla from high school and they previously used drugs
2
together. Quintanilla picked up Montero around 3:30 p.m.
Montero took more than five Xanax pills.
Montero and Quintanilla drove around for more than three
hours. They discussed “needing money.” At some point,
Quintanilla stopped the car and got out. Montero heard a
gunshot. When Quintanilla returned to the car, he looked
panicked. Montero saw that he had a necklace. He told Montero
that he shot “the guy” in the stomach but he was going to be
okay. Quintanilla drove away and dropped off Montero at his
home.
C. Investigation
After the shooting, an ambulance and officers from the
Long Beach Police Department arrived. Brian Contreras was
killed by a single gunshot wound to his chest. A necklace was
found in Contreras’s pocket. The pendant from the necklace was
missing. A forensic specialist from the Long Beach Police
Department crime lab found one casing about 16 feet from
Contreras’s body.
At the scene, Chhay provided a video recording from the
dashcam in his car to officers. The video depicted a silver
Volkswagen Jetta with a black front quarter panel and a partial
license plate. Officer Jeffrey Craver discovered that Quintanilla
was the registered owner of the car and lived one mile from the
location of the shooting. The video did not depict anyone at the
location other than Quintanilla and Contreras.
On June 14, at 8:00 a.m., officers arrested Quintanilla who
was in his silver Volkswagen Jetta which was parked in front of
his apartment. He had a loaded handgun in the driver’s side door
pocket of his car.
3
Ballistics testing revealed that the handgun discovered in
Quintanilla’s car ejected the casing found on the sidewalk and
discharged the bullet found in Contreras’s body.
D. Quintanilla’s interview
On June 14, Long Beach Police Department Detectives
Juan Carlos Reyes and Sean Magee interviewed Quintanilla.1
Quintanilla identified himself in the recording from Chhay’s dash
camera as the person approaching the silver Volkswagen Jetta.
Quintanilla confirmed the firearm found in his car belonged to
him.
Quintanilla first said he observed a young man “talking
shit” to an older man from across the street. The young man
appeared to be the age of Quintanilla’s younger brother.
Quintanilla initially denied firing his gun. He eventually stated
that he fired his gun at the ground when he saw the older man
aiming a gun. Quintanilla said his gun went off because he got
scared and feared for his life. He said that he “didn’t shoot” the
“kid.” Quintanilla added that he “didn’t kill that little boy
because he remind[ed him] of [his] younger brother.” 2
1 On the first day of Detective Reyes’s testimony at trial, he
discussed the statements made by Quintanilla during the
interview. During Detective Reyes’s second day of testimony, the
recorded interview was played for the jury and the prosecutor
asked him questions about it.
2 Detective Reyes initially testified that Quintanilla said that
the person determined to be Contreras was “punking this other
little kid.” But in the recorded interview, Quintanilla referred to
Contreras as the young man and the older man was an unknown
person with a gun. During Detective Reyes’s second day of
testimony, he stated that Quintanilla indicated Contreras
4
Quintanilla said he fired at the ground because he had to leave to
make deliveries for Door Dash.
Detective Magee told Quintanilla that the “major parts to
this story” were missing and they were “not getting the whole
truth” from him. Quintanilla said that he was making a delivery
and stopped the car because “the kid was talking shit across the
street to some older dude.” From his car, Quintanilla asked the
young man if he was “good.” At first, the young man did not say
anything. Quintanilla again asked the young man, “[Y]ou okay?
Is this guy tripping on you?” The young man said, “[I] don’t
know, this fool’s acting stupid over here, fucking thinking he’s all
this and all that.” Quintanilla said he told the young man to
“stay out of trouble.”
Quintanilla said that the young man “thought that [the
older man] was going to do something” so he began running.
Quintanilla said he saw the older man cocking a nine-millimeter
or .45 caliber gun. Quintanilla checked on the young man “after
he [went] down.” Quintanilla took his pendant which fell on the
ground and later placed it in the front console of his car. He said
he was going to go to the hospital with the young man.
Quintanilla told him that he would call 911. But Quintanilla did
not call 911 because he was late in making his delivery. He told
a neighbor to call 911.
Detective Reyes told Quintanilla that he was telling them
“partial truth.” Both detectives informed Quintanilla that the
video recording of the incident did not depict the older man with
a gun. Detective Magee told Quintanilla, “You’re throwing some
reminded him of his younger brother, which was consistent with
his reference to him as the young man.
5
weird stuff out there, so it’s like hard for me to trust what you’re
saying,” Detective Magee prompted Quintanilla to tell them how
the incident started. Quintanilla stated that the younger man
was drunk or “on something.” The younger man said, “[W]hat
the fuck you looking at, bitch?” Quintanilla said, “ ‘I ain’t no
bitch’ ” and added, “[C]all me a bitch.” He pushed the younger
man. Quintanilla denied shooting him. Quintanilla claimed that
the other man with a gun appeared. Quintanilla took out his gun
only because he saw this other man with a gun. Quintanilla
admitted that he fired his gun one time. He initially indicated
that he stuck his left arm out of the car and shot in the air.
When asked to clarify, Quintanilla changed his story and said, “ ‘I
do walk-ups,’ ” meaning that he confronted the young man face-
to-face. But Quintanilla did not think it was possible that his
gunshot struck the young man. He concluded his interview by
stating, “[H]onestly, I didn’t shoot that kid.”
II. Procedure
On February 27, 2024, a jury convicted Quintanilla of
second degree murder (Pen. Code, § 187, subd. (a);3 count 1),
possession of a firearm by a prohibited person (§ 29800, subd.
(a)(1); count 2), and possession of ammunition by a prohibited
person. The jury also found the personal use of a firearm
allegation true as to the murder in count 1.
On April 17, 2024, the court found true four circumstances
in aggravation. On count 1, the court imposed 15 years to life,
plus an additional 10 years for the firearm enhancement. On
3 All further undesignated statutory references are to the
Penal Code.
6
count 2 and count 3, the court imposed and stayed eight months
each under section 654.
DISCUSSION
I. Failure to instruct on voluntary manslaughter
The trial court denied Quintanilla’s request for a voluntary
manslaughter instruction under a heat of passion theory.
Quintanilla contends that there was sufficient evidence to
support the instruction. We disagree.
“Murder is the unlawful killing of a human being . . . with
malice aforethought.” (§ 187, subd. (a).) “[M]alice may be
express or implied.” (§ 188, subd. (a).) Express malice is
established by an intent to kill. (People v. Saille (1991) 54 Cal.3d
1103, 1114.) Implied malice does not require an intent to kill.
(People v. Swain (1996) 12 Cal.4th 593, 602–603.) Implied malice
is formed when the killing “results from an intentional act, the
natural consequences of which are dangerous to human life, and
the act is deliberately performed with knowledge of the danger to,
and with conscious disregard for, human life.” (People v. Cook
(2006) 39 Cal.4th 566, 596; People v. Knoller (2007) 41 Cal.4th
139, 143.)
Manslaughter is the unlawful killing of a human being
without malice. (§ 192; People v. Manriquez (2005) 37 Cal.4th
547, 583 (Manriquez).) It is a lesser included offense of murder.
(People v. Cole (2004) 33 Cal.4th 1158, 1215.) A homicide is
reduced from murder to voluntary manslaughter if the defendant
either killed upon a sudden quarrel or heat of passion, or in
unreasonable self-defense. (People v. Schuller (2023) 15 Cal.5th
237, 252.) “Malice is presumptively absent when the defendant
acts upon . . . heat of passion on sufficient provocation.”
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(Manriquez, at p. 583.) Heat of passion requires both subjective
and objective components. (Id. at p. 584.) Subjectively, the
defendant must have killed under “the actual influence of a
strong passion induced by . . . [the] provocation.” (People v. Moye
(2009) 47 Cal.4th 537, 550.) Objectively, the defendant’s heat of
passion must be due to provocation that would be experienced by
a reasonable person under similar circumstances. (Manriquez, at
p. 584.)
A trial court must instruct on a lesser included offense
when substantial evidence would support a finding that the
defendant is guilty of only the lesser offense. (Manriquez, supra,
37 Cal.4th at p. 584.) In determining whether substantial
evidence exists, reviewing courts must not evaluate the
credibility of witnesses. (Ibid.) We review the trial court’s
refusal to instruct on a lesser included offense de novo. (Ibid.)
During his interview with Detectives Reyes and Magee,
Quintanilla changed his story about the incident three times.
Quintanilla does not acknowledge that changing stories three
times undercuts his believability. Nor does he point to evidence
to corroborate any one of his stories. We need not determine
which story was the truth. None of the stories constitutes
substantial evidence of legally sufficient provocation that would
induce heat of passion. In each story, Quintanilla denied
shooting Contreras. Quintanilla’s first version of the incident
included firing a single shot after he saw the unknown older man
with gun across the street. In this first version, Quintanilla said
he “didn’t shoot” the “kid” and he “didn’t kill that little boy
because he remind[ed him] of [his] younger brother.” Quintanilla
said he merely fired at the ground. Quintanilla did not describe
feeling any emotion that might have amounted to heat of passion
8
when he fired the shot. Instead, he curiously explained that he
fired at the ground because he had to leave to make deliveries for
Door Dash.
Even if we disregard Quintanilla’s denial of shooting
Contreras, the remaining problem with this version is that an
unidentified third party, not Contreras, created the perceived
threat. The victim must cause the provocation that incites the
defendant to kill in the heat of passion. (Manriquez, supra, 37
Cal.4th at p. 583.) Quintanilla cannot rely on the unknown third
party’s actions to support the manslaughter of Contreras.
In the second version, Quintanilla said he saw the older
man cocking a nine-millimeter or .45 caliber gun. Quintanilla
checked on Contreras “after he [went] down,” implying that the
older man shot Contreras. In this version, Quintanilla never
admitted to firing his gun at all. Again, no evidence supported
Quintanilla killing in the heat of passion induced by provocation
from Contreras.
Quintanilla focuses only on the third version to support the
heat of passion theory. In the third version, Quintanilla said that
Contreras called him a “bitch.” Quintanilla confirmed that he did
not like being called a bitch. He told Contreras, “ ‘I ain’t no bitch’
” and taunted, “[C]all me a bitch.” Quintanilla then pushed
Contreras. But again, Quintanilla said he took out his gun only
because he saw the older man with a gun. Quintanilla admitted
that he fired his gun one time into the air. Quintanilla changed
his story from firing his gun while in his car to walking up to
Contreras and shooting. But Quintanilla did not think it was
possible that his shot struck Contreras. He concluded his
interview by stating, “[H]onestly, I didn’t shoot that kid.”
9
Even if we disregard Quintanilla’s denial of shooting
Contreras, the exchange between the two in this third version did
not establish the objective component of heat of passion. In
Manriquez, the victim’s verbal insults, including calling the
defendant a “ ‘mother fucker’ ” and repeatedly challenging him to
use a weapon, were insufficient provocation for an average person
to lose reason and judgment. (Manriquez, supra, 37 Cal.4th at p.
586.) Although the court recognized that verbal conduct may
constitute provocation, these specific taunts were “plainly”
insufficient to cause an ordinary person to lose reason and
judgment. (Ibid.)
People v. Gutierrez, 45 Cal.4th 789, cited by the Attorney
General, is similarly illustrative. There, the defendant told the
victim, “ ‘[g]et off me, you f . . . ing bitch,’ ” and she “ ‘cuss[ed]
back at’ ” him. (Id. at p. 827.) The victim and the defendant also
engaged in a physical alteration that included scratching,
kicking, and grabbing by both parties. (Ibid.) The Supreme
Court concluded that a voluntary manslaughter instruction “is
not warranted where the act that allegedly provoked the killing
was no more than taunting words, a technical battery, or slight
touching.” (Id. at p. 826.)
The circumstances here are substantially less provocative
than those rejected in Manriquez and Gutierrez. The record here
reflects only a single verbal insult with no physical touching by
Contreras. A reasonable person under similar circumstances
would not have experienced any heat of passion due to such
minimal provocation.
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II. CALCRIM No. 372
Quintanilla argues that the trial court violated his rights to
due process and a fair trial by instructing the jury with
CALCRIM No. 372, which permits inferring consciousness of
guilt based on the defendant’s flight. He asserts that CALCRIM
No. 372 unconstitutionally “discriminates against people of color
because they have objective and valid reasons for fearing [police
officers], and for avoiding contact” with them. Quintanilla
contends that because of these reasons, CALCRIM No. 372
“invites jurors to draw a conclusion not based in fact, and use
that conclusion to find the defendant guilty . . . [and] it reduces
the prosecution’s burden of proof and is inconsistent with the
presumption of innocence . . . .”
We review instructional error de novo. (People v. Lewis
(2023) 14 Cal.5th 876, 900.) We review the record to determine
whether it is reasonably likely the jury understood the
instruction in a manner that “undermined the presumption of
innocence or tended to relieve the prosecution of the burden to
prove defendant’s guilt beyond a reasonable doubt.” (People v.
Paysinger (2009) 174 Cal.App.4th 26, 30 (Paysinger); People v.
Ramirez (2021) 10 Cal.5th 983, 1001–1002.)
Quintanilla asserts that CALCRIM No. 372 “enshrines
institutional racism and bias” because it instructs jurors to draw
a negative inference against people of color even though they
universally have a legitimate reason to flee from officers. To
support his claim, that “the instruction has a disparate impact on
Latino Americans,” Quintanilla mentions that “two-thirds of
California felony defendants are people of color who have
objective reasons to fear contact with police even when they have
done nothing wrong.” But Quintanilla does not provide the
11
number of those defendants who were convicted at trial based on
the jury relying on CALCRIM No. 372 or even the number of
those defendants who were convicted at trial where the
instruction was given, or otherwise provide evidence of the
instruction’s disparate impact on Latino Americans.
Quintanilla also refers to cases which discuss racial
profiling practices of police officers in investigatory stops. These
cases acknowledge that flight remains a legitimate factor in
assessing the justification for a stop, even when the subject is a
person of color, but caution that it is not necessarily probative of
consciousness of guilt. (See e.g. Commonwealth v. Warren
(Mass. 2016) 475 Mass. 530, 539–540.) These cases highlight the
existence of motivations to flee by persons of color that are
unrelated to consciousness of guilt. They discount flight when
the other circumstances leading up to the stop do not weigh in
favor of sufficient justification for it. (United States v. Brown (9th
Cir. 2019) 925 F.3d 1150, 1157 [“Given that racial dynamics in
our society . . . an ‘innocent’ explanation of flight, when every
other fact posited by the government weighs so weakly in support
of reasonable suspicion, we are particularly hesitant to allow
flight to carry the day in authorizing a stop.”].) The motivation to
flee discussed by these cases is not novel. CALCRIM No. 372
does not exclude it from consideration.
CALCRIM No. 372 states, “If the defendant fled
immediately after the crime was committed, that conduct may
show he was aware of his guilt. If you conclude that the
defendant fled, it is up to you to decide the meaning and
importance of that conduct. However, evidence that the
12
defendant fled cannot prove guilt by itself.”4 CALCRIM No. 372
permits the jurors to infer that the defendant was aware of his
guilt when he fled after the crime was committed. It does not
mandate that jurors draw any negative inference from the
defendant’s flight. Most importantly, it prevents jurors from
finding the defendant guilty exclusively based on his flight.
CALCRIM No. 372 requires the jury to engage in a two-
step determination. First, jurors must determine whether the
defendant fled. Second, they must assess the “meaning and
importance” of the flight. This process provides jurors with the
choice to infer or decline to infer that flight indicates awareness
of guilt. (People v. Hernandez Rios (2007) 151 Cal.App.4th 1154,
1158.) Leaving these determinations to the jurors allow them to
consider the defendant’s motivations to flee that do not involve
consciousness of guilt, if the facts support their existence, such as
a legitimate fear of law enforcement officers. (People v. Price
(2017) 8 Cal.App.5th 409, 458.) These features are consistent
with due process by preventing CALCRIM No. 372 from lessening
the prosecutor’s burden of proof. (Hernandez Rios, at pp. 1157–
1158; People v. Mendoza (2000) 24 Cal.4th 130, 180 [rejecting due
4 CALCRIM No. 372 derives from section 1127c. When the
prosecution relies on the defendant’s flight as tending to show
guilt, section 1127c requires the court to instruct the jury that
“[t]he flight of a person immediately after the commission of a
crime, or after he is accused of a crime that has been committed,
is not sufficient in itself to establish guilt, but is a fact which, if
proved, the jury may consider in deciding his guilt or innocence.
The weight to which such circumstance is entitled is a matter for
the jury to determine.” (§ 1127c; People v. Pensinger (1991) 52
Cal.3d 1210, 1243.)
13
process challenge to CALJIC No. 2.52 because “reason and
common sense” would justify the suggested conclusion “in light of
the proven facts before the jury”], superseded by statute on other
grounds as stated in People v. Brooks (2017) 3 Cal.5th 1, 62–63;
Paysinger, supra, 174 Cal.App.4th at pp. 31–32; Price, at pp. 456,
458.)
The record demonstrates that it is not reasonably likely
that the jury understood the instruction to undermine the
presumption of innocence or reduce the burden of proof on the
prosecution. No evidence suggested that Quintanilla was
concerned about police officers abusing their authority against
him based on his race, racially targeting him, or having a racially
motivated suspicion that he committed the murder. Instead,
Quintanilla volunteered to the detectives that even though he
told Contreras that he would call 911, he refused to call 911 and
fled the scene because he had to make a Door Dash delivery.
CALCRIM No. 372 did not violate his rights to due process or a
fair trial because it permitted the jury to freely consider
Quintanilla’s flight after the shooting and infer or not infer his
consciousness of guilt based on this evidence.
III. No cumulative error
Quintanilla argues that the cumulative error requires
reversal. We cannot reverse the convictions based on cumulative
error because we have not identified any prejudicial error.
(People v. Burney (2009) 47 Cal.4th 203, 256.)
IV. Sentencing error
Under section 654, the trial court imposed and stayed eight
months each on count 2 and count 3, calculated as one-third the
middle term of two years. The term imposed and stayed under
14
section 654 must be a full term. (People v. Cantrell (2009) 175
Cal.App.4th 1161, 1164; People v. Relkin (2016) 6 Cal.App.5th
1188, 1197–1198.) This error resulted in an unauthorized
sentence. (Relkin, at p. 1197.)
We vacate the sentence as to count 2 and count 3 and
remand to the trial court with directions to correct the errors as
to those counts. The clerk of the superior court is to amend the
abstract of judgment upon the trial court’s correction of the errors
and forward a certified copy to the Department of Corrections
and Rehabilitation.
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DISPOSITION
We vacate the sentence as to count 2 and count 3. The
matter is remanded to the trial court with directions to correct
the sentence as to count 2 and count 3 by imposing a full term for
each and then stay execution of that term on each count under
section 654. We further direct the clerk of the superior court to
prepare an amended abstract of judgment to reflect the corrected
sentence and send a copy to the Department of Corrections and
Rehabilitation. The judgment is otherwise affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
HANASONO, J.
We concur:
ADAMS, P. J.
ASHWORTH, J.*
* Retired Judge of the El Dorado Superior Court, assigned by
the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
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