Filed 8/8/25 P. v. Boswell CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E083353
v. (Super. Ct. No. SWF2101473)
LEON MANH BOSWELL, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Stephen J. Gallon, Judge.
Affirmed.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General,
Charles C. Ragland, Assistant Attorney General, Eric A. Swenson, and Monique Myers,
Deputy Attorneys General, for Plaintiff and Respondent.
1 I.
INTRODUCTION
Defendant and appellant Leon Manh Boswell fired multiple shots at E.A. and two
of his friends, then chased after and shot at E.A. as he fled. As E.A. lay on the ground
after being shot in the buttocks, defendant and his accomplice approached E.A. while
wearing ski masks, defendant pointed the gun at his head, and one of them took the three
dollars E.A. held in his hand.
A jury convicted defendant of attempted murder (Pen. Code, §§ 187, subd. (a), 1 667, subd. (a); count 1), robbery (§ 213; count 5), assault with a semiautomatic firearm
(§ 245, subd. (b); counts 6-8), and shooting at an occupied vehicle (§ 246; count 10). As
to counts 1 and 5, the jury found true the allegation that defendant personally and
intentionally discharged a firearm, proximately causing great bodily injury or death
(§ 12022.53, subd. (d)), and as to counts 6 through 9 that he personally used a firearm
(§ 12022.5, subd. (a)). The trial court sentenced him to a determinate term of 12 years,
plus an indeterminate term of 25 years to life for the firearm enhancement.
Defendant contends the trial court (1) impermissibly admitted evidence of his
involvement in a similar but uncharged robbery, (2) improperly denied his request for a
jury instruction of attempted voluntary manslaughter, and (3) these two errors
individually and cumulatively warrant reversal. Defendant also argues (4) there is
1 Unless otherwise indicated, all statutory references are to the Penal Code.
2 insufficient evidence that he committed robbery and (5) the matter should be remanded
for resentencing. We reject defendant’s contentions and affirm the judgment.
II.
DISCUSSION
In September 2021, defendant and his accomplices, D.B. and S.M., messaged E.A.
and B.A. to meet at a park so the trio could buy marijuana wax. E.A. and B.A. did not
respond, so the trio asked a mutual acquaintance to ask E.A. and B.A. to meet him to buy
marijuana wax at the park.
Later that night, defendant, S.M., and D.B. went to benches near the bathroom at
the park to smoke marijuana. S.M. then walked to meet E.A. in a car in the parking lot.
E.A. was sitting in a backseat while B.A. drove, M.O. sat in the front passenger seat, and
M.P. was in another backseat. When E.A. showed S.M. the marijuana wax, S.M. grabbed
it and ran toward defendant and D.B. E.A. ran after S.M., but quickly lost sight of him
and turned around to head back to the car. E.A. then heard someone yell “we’re gonna
kill you” and “a lot of curse words” and saw a blue laser pointer pass over the car.
Multiple bullets then hit the car.
B.A. sped off before E.A. got back to the car, so E.A. ran toward a field away from
the parking lot. As he ran, he saw the blue laser passing his legs onto the grass in front of
him. The shooter was “aiming right at [him]” and he “kept getting shot at.” E.A. tripped
and, while on the ground, he saw two silhouettes chasing him and firing a gun. E.A. got
3 up and resumed running in a zig zag to avoid being shot. As he approached stairs at the
other side of the field, he was shot in the buttocks and fell to the ground.
While E.A. lay on the ground immobilized, defendant and D.B. approached E.A.
Both of them were wearing ski masks and defendant was holding a gun. As defendant
pointed the gun at E.A.’s head, E.A. held out all the money he had (three one dollar bills)
to try to distract them so they would not shoot him. One of them took E.A.’s money, and
then they ran away.
When questioned by law enforcement after his arrest, defendant admitted he fired
multiple rounds. Although he claimed he shot two of those rounds in the air while yelling
at E.A. to stop, he admitted that he aimed and shot at E.A.’s leg. He stated that he did not
know in advance that S.M. intended to steal the marijuana wax, but suspected that was
his plan since he was homeless and needed money.
At trial, defendant testified he fired the shots to “protect” S.M. and “diffuse the
situation.” Defendant thought S.M. was just going to pick up marijuana, but heard him
arguing with people in the car and then running away from two people chasing him.
According to defendant’s trial testimony, S.M. ran toward him and D.B. and the three of
them started running toward defendant’s house.
4 As they ran, E.A. pursued S.M., who was slower and running behind D.B. and
defendant. Defendant told E.A. to stop, but he continued pursuing S.M., so defendant
shot the gun into the air and told E.A. to stop. E.A. did not comply, so defendant fired a
round into the air and told E.A. to stop. Because E.A. did not comply, defendant fired a
third round into the air and told E.A. to stop, but he refused. Defendant was scared for
S.M. because he thought E.A. had a gun given that he continued to chase S.M. despite
defendant firing three rounds into the air. Defendant then shot a round into the ground to
get E.A. to stop chasing S.M. and “diffuse the situation,” but the bullet hit E.A. in the
buttocks.
Defendant walked to E.A. on the ground to “see if he was all right,” but they did
not say anything. Defendant denied he was wearing a ski mask at the time, and also
denied pointing the gun at E.A. E.A. removed the three dollars from his pocket, but
defendant did not take it and did not know if D.B. did. Defendant, S.M., and D.B. then
ran to defendant’s house.
III.
A. Uncharged Robbery Evidence
1. Background
The People moved before trial to introduce evidence of defendant’s involvement
in an uncharged robbery from 2020, depending on if and how he testified about the
incident with E.A. The People claimed that, during the 2020 incident, defendant and two
5 cohorts “lured” an individual to an area “by the bathrooms in the same exact park before
robbing that person at gunpoint.” Defendant was not charged or arrested, but his cohorts
were convicted in juvenile court. The People therefore wanted to introduce evidence of
the 2020 incident to show the jury that defendant “sees how it works, plan, intent,
preparation.” The trial court decided to rule on the motion later so that the parties could
review the police reports for the 2020 incident.
After defendant had testified at length, the trial court ruled that evidence of the
2020 incident was admissible. The court reasoned that, since defendant testified that he
did not know S.M. intended to rob E.A., evidence of the 2020 incident was “extremely
probative . . . as to what was going through [defendant’s] mind” and whether the court
would give a voluntary manslaughter instruction. The court further reasoned that the
evidence was “very probative” given that the uncharged offense occurred in the same
park about a year prior.
When asked about the 2020 incident on direct examination, defendant denied any
involvement. He explained that he heard there was a robbery in the park and the police
issued a search warrant for his house and took his phone, but he knew the victim, who
“misstated” that he was at the park during the robbery. After talking with the police, they
returned his phone and that was the end of it.
6 On cross-examination, the prosecutor asked defendant five questions about the
incident: 1. “You were one of three males that day who robbed a kid at the park; is that
correct?”; 2. “So, you weren’t one of those three guys who lured a 16-year-old over to the
bathroom that day?”; 3. “You weren’t one of the three males who then held a gun to that
kid’s face, robbed him of his backpack?”; 4. “So you weren’t one of those three guys that
walked away laughing after you robbed him at gunpoint at that same park by that same
bathroom?”; and 5. “[S]o on that incident, so you’re saying that you had nothing to do
with that gunpoint robbery at that same exact park, that same exact bathroom, three
people luring somebody there with a gun in December of 2020?” Again, defendant
denied any involvement, and denied being at the park at the time of the robbery.
Defense counsel did not address the 2020 incident in rebuttal, and neither party
addressed it in closing statements.
The trial court then instructed the jury with CALCRIM No. 375, entitled
“Evidence of Uncharged Offense to Prove Knowledge or lack thereof.” The instruction
read in relevant part: “The People presented evidence that the defendant about one year
prior, committed the offense of robbery or was present during the alleged robbery
incident that was not charged in this case. [¶] . . . [¶] . . . [¶] If you decide that the
defendant committed the uncharged offense, you may, but are not required to, consider
that evidence for the limited purpose of deciding whether: [¶] The defendant knew or
believed there was a need for defense of others when he allegedly acted in this case. [¶]
7 Do not consider this evidence for any other purpose except for the limited purpose of lack
of need for defense of others.”
2. Applicable Law and Standard of Review
Evidence Code section 1101, subdivision (a) prohibits admission of evidence of a
person’s character, including evidence of character in the form of specific instances of
uncharged misconduct, to prove the conduct of that person on a specified occasion.
Subdivision (b) of the statute clarifies that this rule does not prohibit admission of
evidence of uncharged misconduct when such evidence is relevant to establish some fact
other than the person’s character or disposition, including intent, the existence of a
common plan or identity.
“When the prosecution seeks to prove the defendant’s identity as the perpetrator of
the charged offense with evidence he had committed uncharged offenses, the
admissibility of evidence of the uncharged offenses turns on proof that the charged and
uncharged offenses share sufficient distinctive common features to raise an inference of
identity. A lesser degree of similarity is required to establish the existence of a common
plan or scheme and still less similarity is required to establish intent.” (People v.
Lindberg (2008) 45 Cal.4th 1, 23.) Ultimately, “‘[t]he admissibility of other crimes
evidence depends on (1) the materiality of the facts sought to be proved, (2) the tendency
of the uncharged crimes to prove those facts, and (3) the existence of any rule or policy
requiring exclusion of the evidence,’” including whether the evidence is subject to
exclusion under section 352 as more prejudicial than probative. (People v. Lindberg,
8 supra, at p. 23; See People v. Balcom (1994) 7 Cal.4th 414, 426 [trial court must still
evaluate evidence for admissibility under Evidence Code section 352 after finding it
admissible under Evidence Code section 1101, subdivision (a)].) These principles are
reflected in CALCRIM No. 375. (See People v. Virgil (2011) 51 Cal.4th 1210, 1259-
1260.)
We review the trial court’s admission of evidence of the uncharged 2020 offense
under both Evidence Code sections 1101 and 352 for an abuse of discretion. (People v.
Medina (1995) 11 Cal.4th 694, 748-749; People v. Linkenauger (1995) 32 Cal.App.4th
1603, 1610).
3. Analysis
We find no abuse of discretion here.
The uncharged offense and the offense here were similar in several respects. They
both involved three assailants robbing the victim at gunpoint in the same general area of
the same park. And in both incidents, the victims were “lured” to the park by the
assailants. Given these similarities, the trial court reasonably found that the incidents
were sufficiently similar to find evidence of the 2020 incident admissible under Evidence
Code section 1101.
The trial court also did not abuse its discretion in finding that the evidence was
inadmissible under Evidence Code section 352. To begin with, the 2020 incident was not
too remote in time given that it occurred about a year before the incident in this case.
(See People v. Waples (2000) 79 Cal.App.4th 1389, 1395.) The 2020 was also less
9 inflammatory given that it did not involve a shooting, an armed chase, or injuries. (See
People v. Leon (2015) 61 Cal.4th 569, 599-600.) The evidence took a minimal amount of
time to address—a handful of questions and answers on direct and cross-examination—
and there was little to no chance the jurors were confused by the straightforward, limited
evidence about the 2020 incident. (See ibid.; People v. Foster (2010) 50 Cal.4th 1301,
1332.) Given the probative nature of the evidence, the court thus properly found that the
evidence should not be excluded under Evidence Code section 352.
B. Attempted Voluntary Manslaughter Instruction
Defendant argues the trial court erred by instructing the jury on attempted
voluntary manslaughter only based on imperfect self-defense and refusing his request to
instruct the jury on the offense based on heat of passion. We disagree.
We review de novo the trial court’s refusal to instruct on a lesser included offense.
(People v. Brothers (2015) 236 Cal.App.4th 24, 30.) A trial court must instruct on a
lesser included offense where “there is ‘substantial evidence’ from which a rational jury
could conclude that the defendant committed the lesser offense, and that he is not guilty
of the greater offense” charged. (People v. DePriest (2007) 42 Cal.4th 1, 50.) Because
attempted voluntary manslaughter is a lesser included offense of attempted murder, the
trial court had an obligation to instruct the jury on attempted voluntary manslaughter.
(See People v. Beltran (2013) 56 Cal.4th 935, 942.) However, the trial court had to
instruct on how a heat-of-passion defense could reduce attempted murder to attempted
10 voluntary manslaughter on if there was substantial evidence that defendant acted in the
heat of passion. (See People v. Lee (1999) 20 Cal.4th 47, 60.)
There was no such evidence. The heat-of-passion theory has two elements. “First,
the provocation which incites the [attempted] killer to act in the heat of passion . . . must
be caused by the victim or reasonably believed by the accused to have been engaged in
by the [victim]. [Citations.] Second, . . . the provocation must be such as to cause an
ordinary person of average disposition to act rashly or without due deliberation and
reflection.” (People v. Lujan (2001) 92 Cal.App.4th 1389, 1411-1412.)
Even if there was sufficient provocation, there is no evidence that the defendant’s
reason was clouded “as the result of a strong passion,” such that it overcame his ability to
act based on reason and due deliberation. (People v. Breverman (1998) 19 Cal.4th 142,
163.) Assuming defendant’s testimony was true, the evidence strongly suggested that
defendant acted deliberately and in a calculated way in an attempt to protect S.M.
According to defendant, he shot in the air while yelling at E.A. to stop. When E.A. did
not comply, defendant repeated did so again. And when E.A. still did not comply,
defendant shot in the air and told E.A. to stop for a third time. It was only when E.A.
continued pursuing S.M. that defendant aimed in E.A.’s direction and shot a fourth round,
this time into the ground.
11 Taking defendant’s testimony as true, this series of decisions does not show
someone acting under the heat of passion, but instead shows someone acting in the
defense of another. A heat of passion instruction therefore was not justified. (See People
v. Moye (2009) 47 Cal.4th 537, 554 [heat of passion instruction not warranted because
“thrust of [the defendant’s] testimony below was [defense of others]”.) The trial court
was not required “to disregard the evidence in order to find that the jury should consider
whether defendant subjectively killed in the heat of passion, when no substantial
evidence supported that theory of manslaughter, and the evidence actually introduced on
the point—the defendant’s own testimony—was to the contrary.” (Ibid.)
C. Cumulative Error
Defendant next argues that the admission of evidence of the uncharged offense and
the alleged instructional error cumulatively warrant reversal. But because we find no
error, there is necessarily no cumulative error. (People v. Lopez (2018) 5 Cal.5th 339,
371.)
D. Robbery
Defendant contends insufficient evidence supports his robbery conviction. We
disagree.
“When considering a challenge to the sufficiency of the evidence to support a
conviction, we review the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is, evidence that is reasonable,
credible, and of solid value—from which a reasonable trier of fact could find the
12 defendant guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of
the judgment the existence of every fact the trier of fact reasonably could infer from the
evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings,
reversal of the judgment is not warranted simply because the circumstances might also
reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither
reweighs evidence nor reevaluates a witness’s credibility.” (People v. Lindberg, supra, 45
Cal.4th at p. 27.)
Thus, “‘[i]f the circumstances reasonably justify the trier of fact’s findings, the
opinion of the reviewing court that the circumstances might also reasonably be reconciled
with a contrary finding does not warrant a reversal of the judgment.’” (People v. Thomas
(1992) 2 Cal.4th 489, 514.) We may reverse a conviction for a lack of substantial
evidence only if it appears “‘“that upon no hypothesis whatever is there sufficient
substantial evidence to support [the conviction].”’” (People v. Cravens (2012) 53 Cal.4th
500, 508.)
Robbery is the “felonious taking of personal property in the possession of another,
from his person or immediate presence, and against his will, accomplished by means of
force or fear.” (§ 211; People v. Scott (2009) 45 Cal.4th 743, 749.) The trial court thus
properly instructed the jury on robbery as follows: “To prove that the defendant is guilty
of this crime, the People must prove that: [¶] 1. The defendant took property that was
not his own; [¶] 2. The property was in the possession of another person; [¶] 3. The
property was taken from the other person or his or her immediate presence; [¶] 4. The
13 property was taken against that person’s will; [¶] 5. The defendant used force or fear to
take the property or to prevent the person from resisting; [¶] AND [¶] 6. When the
defendant used force or fear, he intended to deprive the owner of the property
permanently.”
Defendant contends there was insufficient evidence that the three dollars was
taken against E.A.’s will or that he used force or fear to take the money. We disagree.
E.A. testified that two masked assailants (defendant and D.B.) approached him as he lay
on the ground immobilized after he was shot in the buttocks, then the one with the gun
pointed it at his head. E.A. held out the three dollars to “distract them before any other
shots were fired,” one of the assailants grabbed the money, and then they took off. From
this evidence, the jury could reasonably find infer that E.A. was fearful and felt
compelled to hand over his money or else he risked being shot. The jury thus reasonably
found that defendant robbed E.A.
E. Resentencing
Defendant contends he is entitled to a resentencing hearing based on the Supreme
Court’s recent holding in People v. McDavid (2024) 15 Cal.5th 1015. We disagree.
McDavid held that trial courts have the discretion to strike a section 12022.53
firearm enhancement and impose a lesser included, uncharged enhancement under a
different statute, such as section 12022.5. (People v. McDavid, supra, 15 Cal.5th at p.
1021.) At the time of defendant’s sentencing hearing, the Courts of Appeal were split on
the issue, and McDavid resolved that split. (Id. at p. 1022.) Our Supreme Court clarified
14 that “after striking a section 12022.53 enhancement” under section 1385, the court has
discretion “to impose a lesser included, uncharged enhancement authorized elsewhere in
the Penal Code—that is, outside of section 12022.53” if the facts supporting such an
enhancement have been alleged and found true. (People v. McDavid, supra, at p. 1021.)
At his sentencing hearing, defendant asked the trial court to dismiss the firearm
enhancement on count 1, but he did not ask the court to reduce the length of the firearm
enhancement imposed under section 12022.53, subdivision (d), by imposing a lesser
enhancement under section 12022.53 or an uncharged firearm enhancement under section
12022.5. Defendant now asks us to remand the case so that he can ask the trial court to
impose a term for an uncharged firearm enhancement instead of the 25-years-to-life term
the court imposed for the firearm enhancement.
We conclude defendant forfeited the argument. Although the Courts of Appeal
were split at the time of defendant’s sentencing in February 2024, this court had already
held in September 2022, consistent with McDavid, that the trial courts have discretion to
impose an uncharged lesser included enhancement under section 12022.5 after striking a
greater enhancement under section 12022.53. (People v. Fuller (2022) 83 Cal.App.5th
394, 397.) In other words, this court had already held nearly 17 months prior to
defendant’s sentencing hearing that courts have the discretion to make the exact
sentencing decision he now wants to ask the trial court to make on remand.
15 Although a change in the law can excuse a forfeited objection or argument, “[i]n
determining whether the significance of a change in the law excuses counsel’s failure to
object [below], we consider the ‘state of the law as it would have appeared to competent
and knowledgeable counsel at the time of the trial.’” (People v. Black (2007) 41 Cal.4th
799, 811.) Given our decision in People v. Fuller, supra, 83 Cal.App.4th 394, which
issued long before sentencing occurred in this case, defendant should have asked the trial
court to follow Fuller and impose a lesser term for an uncharged enhancement instead of
the 25-years-to-life term, if defendant thought that would have been appropriate. His
failure to do so forfeits the issue.
In his reply brief, defendant argues for the first time that, if we find the issue is
forfeited, we still can and should review the issue because counsel’s failure to ask for a
lesser term constituted ineffective assistance of counsel. We believe the issue should be
resolved through a petition for habeas corpus and decline to reach it here. People v.
Lucas (2014) 60 Cal.4th 153, 307 [“[T]the proper way to raise a claim of ineffective
assistance of counsel is generally by writ of habeas corpus, not appeal.”], disapproved of
on another ground in People v. Romero and Self (2015) 62 Cal.4th 1, 53, fn. 19; People v.
Duff (2014) 58 Cal.4th 527, 550 fn. 9 [declining to reach ineffective assistance of counsel
claim raised for first time in reply brief and noting that “[i]t is rarely appropriate to
resolve an ineffective assistance claim on direct appeal”].).
16 IV.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
CODRINGTON J.
We concur:
McKINSTER Acting P. J.
RAPHAEL J.