Filed 1/15/15 P. v. Alvarado CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D066501
Plaintiff and Respondent,
v. (Super. Ct. No. FSB701206)
MARCOS ALVARADO,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of San Bernardino County,
William Jefferson Powell, IV, Judge. Reversed.
David L. Kelly, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Sabrina
Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent. A jury found Marcos Alvarado guilty of one count of first degree murder (Pen.
Code, § 187, subd. (a));1 and one count of attempted murder, with the further finding that
the attempted murder was committed willfully, deliberately and with premeditation
(§§ 187, subd. (a), 664, subd. (a)). For both counts the jury also made true findings on
firearm allegations. (§ 12022.53, subds. (b), (c), (d).) Alvarado admitted a prior strike,
and the trial court sentenced Alvarado to prison for a term of 130 years to life.
Alvarado contends that the trial court prejudicially erred by refusing to instruct the
jury on voluntary manslaughter under the theory of imperfect self-defense despite
defense counsel's request for that instruction. We conclude that the trial court erred in
refusing to give the instruction, and the error was prejudicial. We accordingly reverse the
judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
On April 8, 2007, at approximately 1:30 a.m., Alvarado stood near a vehicle in the
parking lot of the Zendejas restaurant and bar in Colton, California, and fired at least six
shots into the vehicle. The vehicle's driver, Isabel Fernandez (Isabel),2 incurred a non-
fatal bullet wound to her stomach. Isabel's husband, Jonathan Fernandez (Fernandez),
was in the front passenger seat and incurred a fatal bullet wound to his chest, as well one
1 Unless otherwise indicated, all further statutory references are to the Penal Code.
2 At the time of the shooting, Isabel had the surname Fernandez, but at the time of trial she had the surname Flores. For the sake of clarity, we will refer to Isabel by her first name, and we intend no disrespect by doing so. 2 bullet wound to his head and one to his back. Fernandez's sister, Tina Fernandez (Tina),3
who was in the back seat of the vehicle, was not shot.
Alvarado fled to Mexico immediately after the shooting, and was eventually
arrested there in 2010. Alvarado was charged with one count of first degree murder for
Fernandez's death and two counts of attempted first degree murder based on his act of
shooting at Isabel and Tina inside the vehicle.
At trial, the People presented several witnesses who described the shooting and the
events leading up to it, and Alvarado testified in his own defense. As all of the witnesses
testified, during the evening of the shooting Alvarado and his girlfriend, Lizette Rios,
were sitting at one of the tables inside Zendejas. Fernandez, Isabel, Tina, and their friend
Jesse Roque were sitting at a second table. Nearby was a third table of four or five men
(the men from the third table). According to Tina, Isabel and Roque, no one from their
group interacted with anyone at the other tables, as they did not know them.
Witnesses described some kind of conflict inside the restaurant between Alvarado
and the men from the third table. A waitress saw Alvarado approach the men from the
third table several times, looking slightly angry. Tina observed Alvarado arguing loudly
with his girlfriend, Rios, and giving angry looks to the men from the third table because
Alvarado thought that the men "kept checking his girlfriend out." Isabel saw Alvarado
get up and go over to the men from the third table to argue with them. A security guard
3 To avoid confusing her with her brother, we will respectfully refer to Tina Fernandez by her first name.
3 eventually asked Alvarado to leave the restaurant. According to one witness, Alvarado
was aggressive toward the security guard.
Alvarado testified that his conflict with the men from the third table arose because
the men made several gang-related comments to him. One of the men said, "This is
Colton" to Alvarado, which he understood as the man "trying to bang on" him.
According to Alvarado, although he had numerous visible gang-related tattoos, he had
not been an active gang member for several years, and thus told one of the men, "I don't
fuck around" and "I don't bang," but the man just smirked at him. Alvarado interacted
with the men twice more during the evening. After seeing the men talking about him,
Alvarado walked by them and said, "Hey, I already told you guys, I got no problem."
Later, Alvarado went over to the men and said, "It's cool" and tried to shake hands with
one of the men, but his hand was slapped away. A security guard then came up and
asked Alvarado to leave. Alvarado also testified that Fernandez's group appeared to
know the men from the third table because Alvarado saw one of the men from
Fernandez's group go over and shake hands with the men from the third table.
According to the evidence at trial, the Fernandez party left the restaurant around
the same time that Alvarado and Rios left. As Alvarado was leaving the restaurant, he
went into the restroom while Rios went to Alvarado's truck. Rios backed the truck out of
its parking space and hit a parked car. A security guard told Rios to give him the keys to
the truck and to wait until she was able to exchange insurance information with the owner
of the other car. When Alvarado came out into the parking lot, he saw what had
happened and became upset and angry that the security guard would not let them leave,
4 calling the security guard a "fucking rent a cop." The security guard went inside the
restaurant to call the police. Alvarado walked over by his truck.
Meanwhile, Fernandez's group had exited the restaurant and was trying to leave
the parking lot. Roque had driven on his own to the restaurant, and he could not pull his
car out of its parking space because Alvarado's truck was left in a position that blocked
Roque's car. Roque sat on the trunk of his car while he waited for Alvarado's truck to be
moved.
Fernandez, Isabel and Tina walked to their Chevy Tahoe and Isabel pulled out into
the parking lot. A friend, who managed the restaurant, stopped to speak with Fernandez,
Isabel and Tina after they backed out. The Tahoe then pulled up near Alvarado's truck
and Roque, and the shooting occurred a short time later. Alvarado and the other
witnesses gave different accounts of the shooting.
Based on the testimony of Isabel, Tina, Roque, the restaurant manager and a
security guard, when the Tahoe drove up near Roque, Fernandez shouted out to Roque to
ask him what was going on and why he wasn't leaving.4 Alvarado reacted as if he
thought Fernandez was shouting at him, and said something such as "[A]re you talking to
me?" or "What did you say?" According to witnesses, Fernandez said, "I wasn't talking
to you" or "It's cool."
4 Roque described the latter part of his conversation with Fernandez, after he already told him that he was blocked by Alvarado's truck and Fernandez had waited for a while, as follows: "[Fernandez] rolls down the window. I said what's up? Let's go fool. I was like, man, it's cool." On cross-examination, however, Roque denied testifying that anyone used the term "fool." 5 Alvarado reached into his truck and took out a .32 caliber gun.5 Alvarado loaded
the gun, stepped toward the Tahoe and started shooting. Fernandez turned to Isabel and
Tina to push their heads down. Alvarado fired at least six shots at the Tahoe and then ran
away while the security guard shot at him. Isabel, who was shot in the stomach, drove
the Tahoe to the hospital, where Fernandez later died from one of the three gunshot
wounds he incurred.
According to Alvarado's testimony, when he entered the parking lot after using the
restroom, he noticed some of the men from the third table in the parking lot. Specifically,
Alvarado observed a total of five men in the parking lot, including Roque who was by the
trunk of his car. As the security guard went inside the restaurant to call the police and
Alvarado walked toward his truck, Alvarado heard Roque say "What's up now, fool?"
Alvarado then saw the men in the parking lot gesture toward each other and make eye
contact. The men in the parking lot stood up like they were going to start walking as the
Tahoe drove up toward Alvarado's truck.
Alvarado became concerned about being attacked by the men in the parking lot, so
he reached into his truck and pulled out a gun while the Tahoe drove up. According to
Alvarado, he kept a gun in his car because during the years of his active gang
involvement he had been the victim of two shootings, including a drive-by shooting in
which he was seriously injured, and he was afraid of being shot again.
5 One witness, Isabel, testified she saw Alvarado take the gun out of his pants.
6 As the Tahoe drove up, Alvarado saw Fernandez in the passenger seat. According
to Alvarado, Fernandez had the window down and was raising his hand while holding a
revolver. Alvarado was scared and thought he was going to be shot. After seeing
Fernandez's gun, Alvarado pulled out his gun and shot at the Tahoe several times.
Alvarado testified that he heard a loud gunshot "almost simultaneous" with his own
gunshot, although he was not sure where the gunshot was coming from. He testified,
"my mind thinks it is this guy in front of me, but that sound is kind of coming from the
back." Alvarado was not sure how many times he was shot at. Alvarado ran a few
blocks to his brother's house where he discarded his gun in the trash and then fled to
Mexico where he was arrested more than three years later.
No witness other than Alvarado reported seeing Fernandez with a gun or seeing
the men from the third table in the parking lot.
The jury found Alvarado guilty of one count of first degree murder for Fernandez's
death (§ 187, subd. (a)), and one count of attempted murder with Isabel as the victim
(§ 187, subd. (a), 664, subd. (a)), with the further finding that the attempted murder was
committed willfully with premeditation and deliberation, and a true finding on firearm
allegations for both counts (§ 12022.53, subds. (b), (c), (d)). The jury found Alvarado
not guilty of attempted murder with Tina as the victim. After Alvarado admitted a prior
strike, the trial court imposed a prison term of 130 years to life.
7 II
DISCUSSION
During discussion of jury instructions, Alvarado requested that the trial court
instruct the jury with CALCRIM No. 571, which states that a defendant who commits a
killing based on imperfect self-defense is guilty of voluntary manslaughter, not murder.
The trial court refused to give the instruction, deciding to instruct the jury only on the
theory of perfect self-defense. The sole issue on appeal is whether the trial court
prejudicially erred by refusing to instruct the jury with CALCRIM No. 571 that Alvarado
would be guilty of voluntary manslaughter if he acted in imperfect self-defense.6
A. Applicable Legal Standards
"Self-defense is perfect or imperfect. For perfect self-defense, one must
actually and reasonably believe in the necessity of defending oneself from imminent
6 With the inapplicable optional and parenthetical language removed, CALCRIM No. 571 provides in relevant part: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because (he/she) acted in imperfect self-defense. [¶] If you conclude the defendant acted in complete self-defense, (his/her) action was lawful and you must find (him/her) not guilty of any crime. The difference between complete self-defense and imperfect self-defense depends on whether the defendant's belief in the need to use deadly force was reasonable. [¶] The defendant acted in imperfect self-defense if: 1. The defendant actually believed that (he/she) was in imminent danger of being killed or suffering great bodily injury; [¶] AND [¶] 2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger; [¶] BUT [¶] 3. At least one of those beliefs was unreasonable. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. [¶] In evaluating the defendant's beliefs, consider all the circumstances as they were known and appeared to the defendant. [¶] . . . [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of murder." (CALCRIM No. 571.)
8 danger of death or great bodily injury. [Citation.] A killing committed in perfect self-
defense is neither murder nor manslaughter; it is justifiable homicide. [Citation.] [¶]
One acting in imperfect self-defense also actually believes he must defend himself from
imminent danger of death or great bodily injury; however, his belief is unreasonable."
(People v. Randle (2005) 35 Cal.4th 987, 994 (Randle).) Specifically, " ' "[u]nder the
doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed
another person because the defendant actually, but unreasonably, believed he was in
imminent danger of death or great bodily injury, the defendant is deemed to have acted
without malice and thus can be convicted of no crime greater than voluntary
manslaughter." ' " (People v. Manriquez (2005) 37 Cal.4th 547, 581.)7 "The sole
difference between true self-defense and 'unreasonable self-defense' is that the former
applies only when the defendant acts in response to circumstances that cause the
defendant to fear, and would lead a reasonable person to fear, the imminent infliction of
death or great bodily injury [citation]; unreasonable self-defense, on the other hand, does
not require the defendant's fear to be reasonable." (People v. Barton (1995) 12 Cal.4th
186, 199-200 (Barton).)
7 Recently, in People v. Elmore (2014) 59 Cal.4th 121, 146 (Elmore), our Supreme Court further refined the concept of imperfect self-defense by explaining that "defendants who mistakenly believed that actual circumstances required their defensive act may argue they are guilty only of voluntary manslaughter, even if their reaction was distorted by mental illness. But defendants who contend they killed in self-defense because of a purely delusional perception of threat must make that claim at a sanity trial." Here, there is no suggestion that Alvarado was acting under a purely delusional perception when committing the shooting. Instead, he based his acts on his perception of the actual circumstances.
9 Voluntary manslaughter arising from imperfect self-defense is "a lesser offense
included in the crime of murder." (Barton, supra, 12 Cal.4th at pp. 193, 200-201.) "A
trial court must instruct on all lesser included offenses supported by substantial
evidence." (People v. Duff (2014) 58 Cal.4th 527, 561 (Duff).) Thus, as with any lesser
included offense, "[w]henever there is substantial evidence that the defendant killed in
unreasonable self-defense, the trial court must instruct on this theory of manslaughter."
(Elmore, supra, 59 Cal.4th at p. 134.) The need to instruct "arises only when there is
substantial evidence that the defendant killed in unreasonable self-defense, not when the
evidence is 'minimal and insubstantial.' " (Barton, supra, 12 Cal.4th at p. 201.) "[T]he
existence of 'any evidence, no matter how weak' will not justify instructions on a lesser
included offense, but such instructions are required whenever evidence that the defendant
is guilty only of the lesser offense is 'substantial enough to merit consideration' by the
jury." (People v. Breverman (1998) 19 Cal.4th 142, 162-163.) "Substantial evidence is
evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a
reasonable jury could find persuasive.' " (Barton, at p. 201, fn. 8.) "In deciding whether
there is substantial evidence of a lesser offense, courts should not evaluate the credibility
of witnesses, a task for the jury." (Breverman, at p. 162.)
Contrary to a suggestion in Alvarado's briefing, the same legal standard applies to
the trial court's obligation to instruct on imperfect self-defense whether or not the
defendant makes a request for the instruction. In all instances, the instruction must be
given if there is substantial evidence to support it. (See People v. Cole (2004) 33 Cal.4th
1158, 1215 [" ' "a trial court must instruct on lesser included offenses, even in the absence
10 of a request, whenever there is substantial evidence raising a question as to whether all of
the elements of the charged offense are present" ' " and "[c]onversely, even on request,
the court 'has no duty to instruct on any lesser offense unless there is substantial evidence
to support such instruction' "].) Accordingly case law considering whether a trial court
erred in not sua sponte instructing on imperfect self-defense is just as applicable as case
law considering whether the trial court erred in denying a defendant's request for such an
instruction.
" 'On appeal, we review independently the question whether the trial court
improperly failed to instruct on a lesser included offense.' " (People v. Banks (2014) 59
Cal.4th 1113, 1160.)
B. Substantial Evidence Supported the Giving of an Instruction on Imperfect Self- Defense
According to the applicable legal standards, we examine whether there was
substantial evidence presented at trial that could have supported a jury finding that
Alvarado shot at the Tahoe and killed Fernandez "in the actual but unreasonable belief
that he [was] in imminent danger of death or great bodily injury." (Duff, supra, 58
Cal.4th at p. 559.) As we will explain, Alvarado's testimony described a scenario under
which the jury could have found that Alvarado acted in imperfect self-defense.
As CALCRIM No. 571 instructs, a "defendant acted in imperfect self-defense if:
1. The defendant actually believed that (he/she) was in imminent danger of being killed
or suffering great bodily injury; [¶] AND [¶] 2. The defendant actually believed that
11 the immediate use of deadly force was necessary to defend against the danger; [¶] BUT
[¶] 3. At least one of those beliefs was unreasonable."
Based on Alvarado's testimony, which the jury was entitled to credit, there is no
dispute that the evidence supported two of the predicate factual findings for imperfect
self-defense as set forth in CALCRIM No. 571, namely that Alvarado (1) "actually
believed that [he] was in imminent danger of being killed or suffering great bodily
injury"; and (2) "actually believed that the immediate use of deadly force was necessary
to defend against the danger." (CALCRIM No. 571.) As Alvarado testified, he thought
that he was being attacked by a group of gang members and that Fernandez was part of
the group of gang members because he had seen someone from Fernandez's group shake
hands with the men from the third table. Alvarado was afraid of being shot, especially
because he was the victim of a previous drive-by shooting. Therefore, when Alvarado
saw Fernandez raise a revolver, he thought that Fernandez was preparing to shoot, and he
opened fire and shot at the Tahoe. Indeed, by agreeing to instruct on perfect self-defense
the trial court tacitly recognized that the evidence would support a finding that Alvarado
actually believed that he was in imminent danger of being killed or suffering great bodily
injury and that the situation required the immediate use of deadly force.8
8 Just like the theory of imperfect self-defense, the theory of perfect self-defense requires a jury to find that the defendant "believed that [he] was in imminent danger of being killed or suffering great bodily injury," and that "the immediate use of deadly force was necessary to defend against that danger." (CALCRIM No. 505.)
12 The main difference between imperfect self-defense and perfect self-defense is
that perfect self-defense requires a defendant's reasonable belief in the need for deadly
force, but imperfect defense applies when the defendant's belief was unreasonable.
(Barton, supra, 12 Cal.4th at pp. 199-200; compare CALCRIM No. 571 with CALCRIM
No. 505.) Although it found the requirements for perfect self-defense to be present, the
trial court declined to instruct on imperfect self-defense, reasoning that if the jury
credited Alvarado's testimony that Fernandez was pointing a gun at him, it only could
have found perfect self-defense, not imperfect self-defense. According to the trial court's
reasoning, if Fernandez was pointing a gun at Alvarado, a jury would necessarily find
that it was reasonable for Alvarado to believe he was in imminent danger of great bodily
injury and that it was reasonable for Alvarado to believe that the immediate use of deadly
force was necessary to defend against that danger. As we will explain, we disagree with
the trial court's evaluation of the evidence.
The trial court's view of the evidence was flawed because, based on the record, a
jury could find that Alvarado actually believed that Fernandez was going to shoot him if
he did not shoot first, but that belief was not reasonable. The jury could have determined
that even if, as Alvarado testified, he saw Fernandez with a revolver in his hand, it was
not reasonable to conclude that Fernandez was about to shoot the revolver. Alvarado was
in an angry and agitated emotional state in the parking lot and felt trapped because the
security guard had the keys to his truck. Alvarado had a conflict with the men from the
third table and was ejected from the restaurant. Alvarado thought the men from the third
table had followed him into the parking lot, and he incorrectly believed that Fernandez
13 and Roque, who were also in the parking lot, were associated with those men because he
witnessed a hand shake between the two groups inside the restaurant. Based on those
facts, the jury could have determined that when Alvarado saw the men gesturing to each
other in the parking lot while Fernandez drove up holding a revolver, Alvarado
unreasonably overreacted and concluded he was going to be shot in a coordinated gang-
motivated attack. Accordingly, substantial evidence supported giving an instruction on
imperfect self-defense.
Our Supreme Court recently recognized that it is proper for a trial court to refuse
to instruct on imperfect self-defense when the defendant's own version of events, if
credited, would, as a matter of law, amount to perfect self-defense because the victim
shot first. (Duff, supra, 58 Cal.4th at p. 562.) However, this is not such a case because
there is no evidence, even under Alvarado's testimony, that Fernandez shot first. In Duff,
the defendant claimed that he shot at the victims in their vehicle only after the victims
pointed multiple guns at him and opened fire. (Id. at pp. 534-535.) Our Supreme Court
explained that an instruction on imperfect self-defense was not required because the
victims shot first. "The problem . . . is that if believed, [the defendant's] version could
lead only to a finding of justifiable homicide and a total acquittal on the homicide
charges. The use of lethal force in response to being shot at repeatedly is perfect self-
defense and no crime. [Citations.] While [the defendant] argues the jury could have
concluded he unreasonably misperceived the situation, the circumstances described by
[the defendant] leave no room for such shades of gray. Either, he was attacked, in which
14 case he committed no crime, or he was not, in which case he committed murder." (Id. at
p. 562.)
Other case law employs similar reasoning to Duff in concluding that an instruction
on imperfect self-defense is not warranted when the defendant's version of events, if
credited, would necessarily lead to a finding of perfect self-defense. (People v.
Valenzuela (2011) 199 Cal.App.4th 1214, 1232 [it was not error to refuse an instruction
on imperfect self-defense because the defendant's testimony that he heard the victims
shooting at him before he shot at them "if the jury believed him, could only lead to a
conclusion that he acted in justifiable self-defense . . . , not to a conclusion that he acted
in imperfect self-defense"]; People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1275
[instruction on imperfect self-defense not required because "[d]efendant's statements, if
believed by the jury, could only lead to an acquittal based on justifiable homicide. It is
inconceivable a jury could find defendant (who had earlier been attacked by [the victim]
with a knife, and whose life was spared only because others intervened) acted
unreasonably in killing [the victim] after [the victim] once again attacked him with a
knife"]; People v. Szadziewicz (2008) 161 Cal.App.4th 823, 834 ["[w]here, as here, the
defendant's version of events, if believed, establish[es] actual self-defense, while the
prosecution's version, if believed, negates both actual and imperfect self-defense, the
court is not required to give the instruction"].)
Alvarado's version of events, unlike the defendant's statement in Duff, "leave[s]
room for . . . shades of gray" on the question of whether it was reasonable for Alvarado to
believe that the immediate use of deadly force was necessary in the situation. (Duff,
15 supra, 58 Cal.4th at p. 562.) Although, as Duff explains, a person being shot at may use
lethal force in response (ibid.), Alvarado did not testify that he was being shot at before
he opened fire on the Tahoe, and he did not describe any other act taken by Fernandez
that justified the use of deadly force as a matter of law. Therefore, the jury could have
found that Alvarado overreacted to the situation based on his emotional state and
unreasonably perceived that Fernandez was about to shoot him if he did not shoot first.
Because Alvarado's testimony, if credited by the jury, left room for a finding that
Fernandez was not about to shoot and that Alvarado therefore acted unreasonably, this
case falls into the category of other cases where an imperfect self-defense instruction was
required because defendant's version of the facts could support a finding that the
defendant unreasonably concluded that the situation made it necessary to use deadly
force. (Barton, supra, 12 Cal.4th at pp. 202-203 [when the defendant testified that he
fired his gun at the victim because he thought he saw the victim coming at him with a
knife, an instruction on imperfect self-defense was required because "[b]ased on all the
evidence, the jury could reasonably conclude that [the victim] was unarmed, but that
defendant, his judgment clouded by his anger, unreasonably believed that [the victim]
was armed and trying to attack him, and that defendant deliberately fired his gun in
response to this perceived threat"]; People v. Ceja (1994) 26 Cal.App.4th 78, 86 ["While
defendant testified that the victim pulled a gun from his waistband and that defendant saw
the barrel of the victim's gun before defendant shot the victim, no gun was found at the
scene and prosecution witnesses testified that the victim did not have a gun. . . . The jury
was entitled to accept portions of a witness's testimony and to disbelieve other portions
16 [citation] and might well have concluded that defendant was mistaken about the victim
being armed but also have concluded that defendant honestly but unreasonably believed
his life was in danger"]; People v. Viramontes (2001) 93 Cal.App.4th 1256, 1263 [when
the evidence showed that someone shot at defendant first, but the defendant could have
been mistaken about the shot coming from the direction of the victim, the evidence
supported an instruction on imperfect self-defense]; People v. Campbell (2014) 227
Cal.App.4th 746, 763 [imperfect self-defense instruction should have been given based
on defendant's testimony that he reacted by shooting when he heard someone shout "gun,
gun" and believed that "people from the opposing group of people were 'coming out with
guns' "].)9
We therefore conclude that the trial court erred in refusing to instruct on voluntary
manslaughter under the theory of imperfect self-defense as set forth in CALCRIM No.
571.
9 Further, even if the jury concluded that Alvarado reasonably believed that Fernandez was about to shoot, the jury still could have concluded Alvarado acted unreasonably by deciding to continue to shoot, for a total of at least six shots, when the perceived threat from Fernandez had been neutralized by one of the earlier shots. Focusing on witness testimony that the occupants of the Tahoe ducked down in response to Alvarado's shots, and on Alvarado's own testimony that after he started shooting at the Tahoe, he heard gunshots that sounded like they were coming from somewhere behind him, not from the Tahoe, the jury could have concluded that although it may have been reasonable for Alvarado to fire an initial shot at the Tahoe to defend against a perceived threat from Fernandez's gun, under the circumstances it was not reasonable to continue to fire a total of six shots. (See People v. Shade (1986) 185 Cal.App.3d 711, 716 [belief in need for self-defense no longer reasonable after victim, who threatened defendant with a gun, had already been beaten unconscious].)
17 C. The Error Was Prejudicial
Having concluded that the trial court erred in refusing to instruct on imperfect self-
defense, we next examine whether the error was prejudicial.
An error in failing to instruct on imperfect defense "is state law error alone, and
thus subject, under article VI, section 13 of the California Constitution, to the harmless
error test articulated in People v. Watson (1956) 46 Cal.2d 818, 836. . . . ' "A conviction
of the charged offense may be reversed in consequence of this form of error only if, 'after
an examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it
appears 'reasonably probable' the defendant would have obtained a more favorable
outcome had the error not occurred." ' " (People v. Randle (2005) 35 Cal.4th 987, 1003
(Randle).) " ' " '[A] "probability" in this context does not mean more likely than not, but
merely a reasonable chance, more than an abstract possibility.' " ' " (People v. Wilkins
(2013) 56 Cal.4th 333, 351 (Wilkins) [discussing instructional error].) Here, as we will
explain, there is a reasonable probability that, had the jury been instructed on imperfect
self-defense, it would have found the requirements of imperfect self-defense to be
present, leading to a verdict of voluntary manslaughter and attempted voluntary
manslaughter rather than murder and attempted murder.
In determining whether an error in failing to instruct on imperfect self-defense was
prejudicial, we may look to the strength of the evidence supporting the applicability of
the omitted instruction. (People v. Moye (2009) 47 Cal.4th 537, 556 [in evaluating
prejudice, " 'an appellate court may consider, among other things, whether the evidence
supporting the existing judgment is so relatively strong, and the evidence supporting a
18 different outcome is so comparatively weak, that there is no reasonable probability the
error of which the defendant complains affected the result' "].) At trial two main
competing theories were offered as to why Alvarado opened fire on the Tahoe. Defense
counsel argued that Alvarado opened fire because he saw Fernandez with a gun and
believed that Fernandez was about to attack him in coordination with other gang
members who had been bothering him inside the restaurant. That theory was supported
by the substantial evidence of Alvarado's own testimony about what occurred in the
parking lot. The prosecutor, in contrast, relying on other witnesses' testimony about what
they saw in the parking lot, argued that Alvarado could not have seen Fernandez with a
gun, and that, instead, Alvarado opened fire on the Tahoe because he felt that Fernandez
had disrespected him by "brush[ing] him off" when Alvarado asked "What did you say"
or "Are you talking to me?"
Based on the evidence presented at trial, Alvarado's version of events is no less
plausible than the version presented by the prosecutor. Indeed, a reasonable juror might
have determined it was more likely, under the circumstances, that Alvarado opened fire
because he feared an imminent attack rather than that he opened fire on someone with
whom his only interaction was a brief exchange of words in the parking lot. We
therefore, conclude that there is a reasonable probability, not just an " 'abstract
possibility' " (Wilkins, supra, 56 Cal.4th at p. 351), that the jury could have believed that
Alvarado shot at the Tahoe because he believed he needed to defend himself, but that
Alvarado's belief was unreasonable. Where, as here, the evidence is sufficiently strong
that there is a reasonable probability that a jury could have found the doctrine of
19 imperfect self-defense to apply, it is prejudicial error for the trial court to have failed to
give the instruction. (See Randle, supra, 35 Cal.4th at p. 1004 [failure to instruct on
imperfect self-defense of another was prejudicial when the evidence was susceptible of
the interpretation that the defendant held an unreasonable belief in that a third party was
in imminent danger of death or great bodily injury]; Viramontes, supra, 93 Cal.App.4th
1256, 1263-1264 [the trial court's failure to instruct on imperfect self-defense could not
be deemed harmless given the evidence at trial making the instruction applicable and
giving rise to a reasonable probability that a properly instructed jury would have found
appellant guilty of manslaughter on an imperfect self-defense theory].)
In determining that the error was prejudicial, we acknowledge that a trial court's
failure to instruct on imperfect self-defense may be harmless if other aspects of the jury's
verdict establish that the jury rejected the factual basis necessary for a finding of
imperfect self-defense. (See People v. Lewis (2001) 25 Cal.4th 610, 646 ["Error in
failing to instruct the jury on a lesser included offense is harmless when the jury
necessarily decides the factual questions posed by the omitted instructions adversely to
defendant under other properly given instructions."].) However, this is not such a case.
No other aspect of the jury's verdict indicates that, if given the opportunity, the jury
would have rejected the necessary factual predicates of imperfect self-defense, namely
that (1) Alvarado believed he was in danger of being seriously injured or killed; and
(2) Alvarado believed it was immediately necessary for him to use deadly force; but
(3) one of those beliefs was unreasonable. The jury's verdict of first degree murder
reflects a finding that Alvarado acted willfully, with premeditation and deliberation, in
20 shooting at the Tahoe, but that finding is not incompatible with any of the necessary
elements of imperfect self-defense. The jury could have concluded that Alvarado
unreasonably believed he was going to be attacked in the parking lot, requiring deadly
force, and that he premeditated and deliberated while deciding what he was going to do in
reaction to the anticipated attack while getting his gun and loading it.10
Significantly too, the record shows that the jury had difficulty with this case,
taking multiple days to reach a verdict and informing the trial court that it was "hung"
before ultimately reaching a decision. We may take into account the jury's difficulty in
reaching a verdict in determining whether the trial court's failure to instruct on an
applicable lesser included offense was prejudicial, as it shows that the prosecution's case
for the eventual verdict on the greater offense was not overwhelmingly strong. (Randle,
supra, 35 Cal.4th at p. 1004 ["In concluding the failure to give the instruction was
prejudicial, we note the jury, even without having been instructed on this theory, took
five days to reach its decision."]; People v. Vasquez (2006) 136 Cal.App.4th 1176, 1180
["The court's erroneous refusal to instruct on imperfect self-defense was not harmless[,]"
in part because "[t]he murder charge against appellant was not airtight[,]" as "[j]ury
deliberations spanned three days for an uncomplicated one-count case turning on
appellant's state of mind when he fired his gun."].)
10 Further, because Alvarado shot at least six times into the Tahoe, a reasonable jury could decide that Alvarado had sufficient time to premeditate and deliberate between those shots, even though motivated to start shooting by the unreasonable belief that he was under attack. 21 We conclude that the trial court prejudicially erred, as it is reasonably probable
that, had the jury been instructed with CALCRIM No. 571 on the theory of imperfect
self-defense, Alvarado would have obtained the more favorable outcome of a verdict of
voluntary manslaughter and attempted voluntary manslaughter.
DISPOSITION
The judgment is reversed and this action is remanded for further proceedings.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.