Filed 4/15/21 P. v. Hernandez 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E072249
v. (Super.Ct.No. FSB17003026 & FSB17003027) FERNANDO HERNANDEZ et al., OPINION Defendants and Appellants.
APPEAL from the Superior Court of San Bernardino County. Ronald M.
Christianson, Judge. Affirmed.
Michael B. McPartland, under appointment by the Court of Appeal, for Defendant
and Appellant, and Krista Hemming for Fernando Hernandez.
William G. Holzer, under appointment by the Court of Appeal, for Defendant and
Appellant, Adrian Rene Haro.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos, Seth Friedman
and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
1 I. INTRODUCTION
On August 7, 2017, J.C. was shot following an altercation with several men. A
jury convicted Fernando Hernandez (Hernandez) and Adrian Haro (Haro)1 of attempted
murder arising out of this incident (Pen. Code,2 §§ 664, 187, subd. (a)). The jury also
found true special allegations that defendants’ commission of the offense was willful,
deliberate, and premeditated (§ 664, subd. (a)); a principal was armed with a firearm
(§ 12022, subd. (a)(1)); and Hernandez personally used a firearm and personally and
intentionally discharged a firearm in the commission of the offense (§ 12022.53,
subds. (b), (c)).
Haro appeals, arguing (1) there was insufficient evidence to support his conviction
for attempted murder, and (2) the trial court engaged in prejudicial error by failing to sua
sponte instruct the jury on self-defense, defense of another, and imperfect self-defense.
Hernandez also appeals, arguing only that he received ineffective assistance of counsel
because his trial counsel failed to request a pinpoint instruction on provocation and failed
to adequately argue provocation in his defense. We affirm the judgment.
1 A third individual, Alexander Rivera (Rivera), was also charged and convicted of various offenses related to the incident, but he is not a party to this appeal.
2 All future statutory references are to the Penal Code unless otherwise stated.
2 II. FACTS AND PROCEDURAL HISTORY
A. Facts and Charges
On August 7, 2017, law enforcement officers were called to respond to reports that
a man had been shot. A responding police officer discovered J.C., who appeared to have
sustained a leg wound, and who reported that he had been shot following an argument
with two men. A witness to the shooting subsequently identified Hernandez and Haro as
the men involved and further identified Hernandez as the shooter.
In a first amended information, both Hernandez and Haro were charged with
attempted murder (§§ 664, 187, subd. (a), count 1) and assault with a firearm (§ 245,
subd. (a)(2), count 2). Additionally, the information alleged defendants’ actions were
willful, deliberate, and premeditated (§ 664, subd. (a)), and that a principal was armed
with a firearm in the commission of count 1 (§ 12022, subd. (a)(1)). The information
further alleged Hernandez personally inflicted great bodily harm (§ 12022.7, subd. (a)),
as well as personally used, intentionally discharged, and caused great bodily harm
through discharge of a firearm in the commission of the offenses (§ 12022.53, subds. (b)-
(d)).
B. Relevant Evidence at Trial
1. Testimony of J.C.
J.C. testified that in August 2017, he was homeless and living in an abandoned
commercial building with three other people in the City of San Bernardino. In the
afternoon of August 7, 2017, one of those individuals exited the abandoned building to
urinate. Soon after, Haro, Hernandez, and Rivera approached the building; Hernandez
3 kicked open the front door and yelled that someone needed to be disciplined for urinating
outside. Hernandez was holding a “zip gun,” which J.C. described as a pipe with metal
wires and a rubber band spring, assembled together in a way that resembled a nine-
millimeter handgun.3 J.C. stated that the exchange was heated, and he attempted to speak
to everyone to calm them down. During this encounter, Haro repeatedly stated: “Let’s
do him.” According to J.C., Haro appeared to be attempting to incite Hernandez to shoot
J.C. with the zip gun while making this statement. J.C. did not feel it was safe to attempt
to exit the building because a third man had positioned himself near the back door, while
Hernandez and Haro remained at the front door during this exchange.
When the situation did not seem to de-escalate, J.C. pulled out a knife because he
felt threatened. In response, Haro, Hernandez, and Rivera left. After about 10 to 15
minutes, J.C. exited the building to retrieve clothes he had left drying on a fence outside.
By this time, J.C. believed the argument with the three men was over. While retrieving
his clothes, J.C. heard someone say, “ ‘I got you now,’ ” from behind him; he then turned
around and saw Hernandez holding a shotgun. When J.C. attempted to run, Hernandez
shot him. J.C. made his way back into the abandoned building, in pain and bleeding; but
Hernandez followed him yelling, “Get out!”
J.C. proceeded to exit the building and make his way to a nearby retail store where
he knew there was a security guard with a gun. While attempting to get to the store, he
3 A police officer also explained to the jury that a “zip gun” is a term used to refer to a homemade gun that acts as an explosive device, which is usually some type of tube with a spring-loaded mechanism that fires a single bullet.
4 turned around several times and saw Haro and Rivera following him in a vehicle. J.C.
stated that Haro and Rivera drove the vehicle close to him in the parking lot of the store,
but he managed to get inside the store to ask for help.
J.C. admitted having prior convictions for giving false information to a police
officer, willful discharge of a firearm, and false imprisonment. Additionally, on cross-
examination, J.C. admitted he had no right to be living in the abandoned building at the
time of the incident, and that he knew there were children living nearby.
2. Testimony of Witness R.N.
R.N. testified that on August 7, 2017, he was stopped at an intersection while
driving his vehicle. He heard yelling on the street and observed Hernandez run toward a
vacant commercial building and fire a short-barreled shotgun. He also observed Haro
running about 10 feet behind Hernandez. After Hernandez fired his shotgun, R.N.
observed both men return together to a residence located on the same street. R.N. called
911 and reported he had witnessed two men shoot an African-American man in the leg
outside an abandoned building before returning to a nearby residence; he also observed a
vehicle leave the residence but could not identify who was inside the vehicle.
3. Testimony of Police Officer
An officer with the San Bernardino Police Department testified that on
August 7, 2017, he was dispatched to a commercial retail store in response to reports of a
shooting. He met J.C. outside the store and observed J.C. was bleeding from wounds
caused by buckshot or birdshot. He proceeded to speak with J.C. while he summoned
medical aid.
5 The officer’s interview with J.C. was recorded through the officer’s body camera
and played for the jury. J.C. reported that he was inside a vacant building with two
women and another man when the man went outside to urinate. J.C. stated that following
this incident, a Mexican man about 50 to 60 years old with a long beard and baseball hat
kicked down the door to the building and pointed a zip gun at J.C. He recalled a second
man accompanied the man holding the zip gun. In response, J.C. grabbed a knife and the
men left. However, J.C. heard the man holding the zip gun state, “ ‘Wait here,
motherfucker,’ ” as he was leaving. When the men left, J.C. exited the building to
retrieve clothes he had left hanging outside. J.C. reported that while outside, he
encountered the man who had been holding the zip gun; heard the man say, “ ‘You
wanna play, motherfucker?’ ”; and was shot as he attempted to turn around and go back
into the building.
The officer testified that he had an opportunity to view the video surveillance
footage of the retail store where he first encountered J.C. The surveillance video depicted
Haro and Rivera arriving at the retail store in a gray vehicle following J.C.’s arrival; Haro
slipping an item under the back of his pants and under his tank top while exiting the
vehicle; and both Haro and Rivera walking toward the entrance of the retail store before
turning around and walking back toward the vehicle in which they had arrived.
The officer also had an opportunity to examine the area where the shooting
occurred. He observed birdshot damage to the front door and surrounding wall of an
abandoned commercial building, as well as to a pair of jeans hanging on a fence outside
the building. No shotgun shells were recovered in the immediate area and, as a result, the
6 officer estimated any shotgun must have been discharged from approximately 20 to 30
yards away from J.C.
The officer participated in a search of the nearby residence where Hernandez was
arrested. Shotgun shells were discovered in a bedroom of the residence, and two
handguns were found in a garage that had been converted into a living area. However,
investigators did not find a shotgun or zip gun during this search.
4. Testimony of Sheriff’s Deputy
A deputy with the San Bernardino County Sheriff’s Department testified that on
August 7, 2017, he was driving in his patrol car when he saw J.C. walking down a street
with his hands pressed over a bleeding wound on his leg. The deputy also saw
Hernandez, Haro, and a third man walking in the opposite direction toward a residence.
Hernandez appeared to be carrying a firearm wrapped in white material, and Haro was
walking next to him. The deputy attempted to turn his vehicle around to stop the men on
the street, but he could not do so in time to prevent them from entering the residence. As
a result, the deputy parked his vehicle next to the abandoned building to surveil the
residence. During this time, he observed Haro and the third man leave the residence in a
silver vehicle. The vehicle returned in approximately five minutes, and the deputy saw
the two men return inside the residence. The deputy did not see Hernandez leave the
residence.
5. Testimony of Police Detective
A detective with the San Bernardino Police Department testified that on the
afternoon of August 7, 2017, he was called to a residence and arrived to find a police
7 perimeter set up. He used a public address system to order the individuals within to exit
the residence. In response, Hernandez exited the residence, followed by Haro and then
several other individuals. He assisted with the collection of gunshot residue samples
from Hernandez and Haro following their exit from the residence. He also assisted with
an in-field identification with R.N., who identified Hernandez and Haro as the individuals
referred to in R.N.’s 911 call, and who specifically identified Hernandez as the shooter.
6. Gunshot Residue Evidence
A criminalist who processed the gunshot residue samples collected from
Hernandez and Haro found no gunshot residue from the samples taken from Haro’s
hands, but he discovered gunshot residue from a sample taken from one of Hernandez’s
hands. He explained that this suggested Hernandez was within 12 feet of a discharging
firearm, but he also admitted that it was possible for someone to be near a discharging
firearm and to have no residue on his person. He also stated that it was possible for
gunshot residue to transfer from an individual to a surface by handling the object.
7. Testimony of Defendant Haro
Haro testified in his own defense. He explained that he lived in a house with his
wife, his five children, Hernandez, and Hernandez’s wife. Another man lived in a
converted garage on the property, and Mr. Hernandez’s brother lived in a recreational
vehicle parked on the same property. On August 7, 2017, Haro, his wife, and his children
witnessed a man urinating outside a nearby abandoned, commercial building. Haro knew
that people had been living in the abandoned building for the past month. In response,
8 Haro, Rivera, and Hernandez’s brother4 walked over to the abandoned building. Haro
saw that Hernandez’s brother was carrying a pipe with a cloth over it, but he believed the
item under the cloth was only a pipe.
When he entered the abandoned building, Haro recalled seeing J.C. and three other
people who appeared to be smoking methamphetamine. He told the people inside the
abandoned building that they needed to leave. However, when he noticed that J.C. was
holding a machete and another man was holding a hammer, Haro began to back up.
Hernandez’s brother stated, “ ‘I got something for you, motherfucker,’ ” and left, while
Haro returned to his residence to retrieve a bat.
As Haro made his way back to the abandoned building, Haro saw Hernandez’s
brother run ahead; heard Hernandez’s brother cursing and shouting; saw Hernandez’s
brother aim a pillow case at J.C.; and heard a loud bang. Haro claimed he did not know
Hernandez’s brother had a gun until after it was discharged because it was hidden under a
pillow case. He did not see what happened to J.C. and only saw Hernandez’s brother
running around the abandoned building, cursing. A short time later, Haro saw J.C. make
his way toward a nearby retail store, and Haro and Rivera decided to follow him. Upon
arriving at the retail store, Haro noticed J.C. had been shot in the leg, so they immediately
returned home. When they returned home, Hernandez’s brother, as well as a car
belonging to Hernandez’s brother, was gone. Haro never saw Hernandez’s brother again.
4Throughout his testimony, Haro maintained that it was Hernandez’s brother, and not Hernandez, who was involved in the incident, testifying that the two looked similar.
9 8. Testimony of Hernandez and Family
Hernandez’s wife testified that on August 7, 2017, she was at home watching
television with Hernandez when they heard an argument outside the home. They went
outside, encountered Hernandez’s brother, and heard him say he had shot someone. She
admitted that she did not initially inform police about Hernandez’s brother and contacted
law enforcement only after Hernandez had been charged with a crime.
One of Hernandez’s sons testified that Hernandez was disabled and could barely
walk following a work-related injury and two automobile accidents. Hernandez testified
on his own behalf and corroborated the testimony of his wife and son.
9. Testimony of Defendant Rivera
Rivera testified that on August 7, 2017, he was sleeping on the couch in the living
room of his brother’s (Haro) home. Haro woke him up and asked him to tell the people
in the abandoned building nearby that they needed to leave. They made their way
together toward the abandoned building with Hernandez’s brother5 ahead of them. Haro
told Rivera to stand outside the building in case a fight ensued, and Rivera remained
outside about 10 to 15 feet away from the building, as Haro followed Hernandez’s
brother inside. He heard arguing inside the building, which ended when he heard
5Like Haro, Rivera maintained that it was Hernandez’s brother, and not Hernandez, who accompanied them during this incident.
10 Hernandez’s brother say, “ ‘Let’s go.’ ” As Hernandez’s brother exited the building, he
handed Rivera a pipe,6 which Rivera tossed to the side on their way back to Haro’s home.
After they arrived back at the residence, Rivera observed Haro go into a bedroom.
He also observed Hernandez’s brother leave the residence, return with a gun inside a
pillow case, leave the residence again, and walk back toward the abandoned building. He
then observed Haro follow Hernandez’s brother out the front door of the residence while
holding a baseball bat. He thought Hernandez’s brother intended simply to scare the
people inside the abandoned building, not to shoot anyone.
Rivera did not accompany Haro and Hernandez’s brother out of the house. From
the window of the residence, Rivera observed Hernandez’s brother run toward the
abandoned building and fire his gun. Eventually, Haro came back into the house
followed by Hernandez’s brother. Rivera heard Hernandez’s brother state: “ ‘I shot him.
I shot that motherfucker,’ ” before Hernandez’s brother stepped into a green car and
drove away. Rivera and Haro then drove in a gray car toward the direction they believed
J.C. had fled. They followed J.C. to a nearby retail store, parked their car, and followed
J.C. inside the store. However, they left after confirming that J.C. had been shot in the
leg.
C. Verdict and Sentencing
The jury returned a verdict finding Hernandez and Haro guilty on the attempted
murder charge (§§ 664, 187, subd. (a), count 1) but not guilty on the charge of assault
6Rivera also referred to the object as a “little pole” in other portions of his testimony.
11 with a firearm (§ 245, subd. (a)(2)). The jury also found true the allegations that
defendants’ commission of the offense was willful, deliberate, and premeditated (§ 664,
subd. (a)); and a principal was armed with a firearm in the commission of count 1 (§
12022, subd. (a)(1)). Finally, the jury returned a true finding that Hernandez personally
used a firearm and personally and intentionally discharged a firearm in the commission of
count 1 (§ 12022.53, subds. (b), (c)); but the jury found not true the allegations that
Hernandez inflicted great bodily injury or inflicted great bodily injury through discharge
of a firearm (§§ 12022.7, subd. (a), 12022.53, subd. (d)).
Hernandez was sentenced to 17 years in state prison, representing the midterm of
seven years for the attempted murder conviction on count 1 and a consecutive term of
10 years based on the true finding that defendant personally used a firearm in the
commission of count 1 (§ 12022.53, subd. (b)).7
Haro was sentenced to eight years in state prison, representing the midterm of
seven years for the attempted murder conviction on count 1 and a consecutive term of
one year for the jury’s true finding that a principal was armed with a firearm in the
commission of count 1.
7 As to count 1, the trial court struck the enhancement for personal discharge of a firearm under section 12022.53, subdivision (c), and stayed the enhancement that a principal was armed with a firearm under section 12022, subdivision (a)(1).
12 III. DISCUSSION
A. Substantial Evidence Supports Haro’s Conviction for Attempted Murder
Haro was convicted of attempted murder under an aiding and abetting theory. On
appeal, he contends there was insufficient evidence to support this conviction, arguing:
(1) there was insufficient evidence to establish he had the requisite mental state necessary
to be convicted as an aider and abettor, and (2) there was insufficient evidence to show he
committed any acts that actually assisted in Hernandez’s shooting. We disagree.
1. General Legal Principles and Standard of Review
“ ‘Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing.’ . . . ‘Thus, to be
guilty of attempted murder as an aider and abettor, a person must give aid
or encouragement with knowledge of the direct perpetrator’s intent to kill and with
the purpose of facilitating the direct perpetrator’s accomplishment of the intended
killing—which means that the person guilty of attempted murder as an aider and abettor
must intend to kill.’ ” (People v. Pettie (2017) 16 Cal.App.5th 23, 52.)
“ ‘On appeal[,] we review the whole record in the light most favorable to the
judgment to determine whether it discloses substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable trier of fact could find
the defendant guilty beyond a reasonable doubt. [Citations.] The standard of review is
the same in cases in which the People rely mainly on circumstantial evidence. [Citation.]
“Although it is the duty of the jury to acquit a defendant if it finds that circumstantial
evidence is susceptible of two interpretations, one of which suggests guilt and the other
13 innocence [citations], it is the jury, not the appellate court which must be convinced of
the defendant’s guilt beyond a reasonable doubt. ‘ “If 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. Cravens (2012) 53 Cal.4th 500,
507-508.) “The conviction shall stand ‘unless it appears “that upon no hypothesis
whatever is there sufficient substantial evidence to support [the conviction].” ’ ” (Id. at
p. 508.)
2. Substantial Evidence Supports a Finding that Haro Had the Requisite Shared
Intent To Be Convicted as an Aider and Abettor
“To be guilty of a crime as an aider and abettor . . . the person must give such aid
or encouragement ‘with knowledge of the criminal purpose of the [direct] perpetrator and
with an intent or purpose either of committing, or of encouraging or facilitating
commission of,’ the crime in question. [Citations.] . . . Thus, to be guilty of attempted
murder as an aider and abettor, a person . . . must intend to kill.” (People v. Lee (2003)
31 Cal.4th 613, 623-624; see People v. Gonzalez (2012) 54 Cal.4th 643, 654, fn. 8.)
“ ‘[I]t is well settled that intent to kill or express malice, the mental state required
to convict a defendant of attempted murder, may . . . be inferred from the defendant’s acts
and the circumstances of the crime.’ ” (People v. Avila (2009) 46 Cal.4th 680, 701.)
“ ‘Among the factors which may be considered in making the determination of aiding and
abetting are: presence at the scene of the crime, companionship, and conduct before and
after the offense.’ [Citation.] . . . ‘Evidence of a defendant’s state of mind is almost
14 inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to
support a conviction.’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1054-1055.)
Here, J.C. testified that during his initial encounter with Hernandez and Haro,
Hernandez threatened the occupants of the abandoned building while holding a “zip
gun”; that during this time Haro repeatedly told Hernandez, “Let’s just do him”; and that
Haro appeared to be attempting to incite Hernandez into shooting J.C. with the zip gun.
Clearly, if believed, this testimony serves as substantial evidence that Haro had the
specific intent to kill J.C.
The fact that Hernandez did not immediately shoot J.C. upon Haro’s urging does
not render Haro’s verbal statements irrelevant. Haro himself testified they left the
abandoned building upon seeing J.C. brandish a machete and another man brandish a
hammer; he and Hernandez returned home to retrieve additional weapons; and the two
began to make their way back to the abandoned building with those weapons. This
evidence gives rise to a reasonable inference that Haro maintained his previously
expressed intent; but he was temporarily deterred by the fact that a zip gun was capable
of firing only one shot, and there were at least two men inside the abandoned building
with weapons. The fact that both Hernandez and Haro left, only to immediately return
with additional weapons more lethal than the one weapon they had during the initial
encounter, is also evidence from which the jury could reasonably infer that Haro’s
previously expressed intent remained unchanged. Thus, the record here contains
evidence of a credible and solid value from which the jury could conclude that Haro
shared in any intent Hernandez may have had to kill J.C.
15 Haro argues that there was no direct testimony he knew Hernandez was carrying a
shotgun during their return to the abandoned building and, as such, the evidence at best
suggests he intended merely to confront J.C. or possibly assault J.C. However, “an aider
and abettor of a specific intent crime shares the perpetrator’s specific intent when he or
she knows of the perpetrator’s criminal purpose and aids, promotes, encourages, or
instigates the perpetrator with the intent of encouraging or facilitating the commission of
the crime.” (People v. Houston (2012) 54 Cal.4th 1186, 1224, italics added.) Thus, the
necessary mental state requires that an aider and abettor has knowledge of and shares in
the criminal purpose of the direct perpetrator. It does not require the aider and abettor to
have precise knowledge of the exact means or methods, which the direct perpetrator may
ultimately use to commit the crime.
On this point, Haro testified that during the initial encounter, he was not holding
any objects but returned home to retrieve a bat. Haro testified he did so specifically
because J.C. had brandished a machete and another man held a hammer during the initial
encounter. He acknowledged that, at the same time, the man with him was initially
carrying something that looked like a pipe covered by cloth8 but had returned home to
retrieve an item covered by a pillowcase. Given Haro’s own testimony that he retrieved a
weapon in direct response to the fact that the men inside the abandoned building had
weapons, it would have been reasonable for the jury to infer that Haro knew whatever
item the man with him returned to retrieve was also in response to that fact. Further, the
8 Again, Haro testified it was Hernandez’s brother and not Hernandez.
16 jury could reasonably infer that since the man with Haro already held a zip gun during the
initial encounter, whatever item he retrieved to continue the confrontation would be some
kind of weapon more lethal than the zip gun or pipe he had previously held.9 The fact
that Haro may not have known the specific weapon Hernandez held does not preclude the
jury from reasonably concluding that Haro knew of the criminal purpose for which the
weapon was intended to be used.
3. Substantial Evidence Supports a Finding that Haro Actively Encouraged and
Assisted in the Shooting
Haro also argues there was no evidence that he engaged in words or deeds that
actually assisted Hernandez in accomplishing the shooting. However, the record shows
both Haro and Hernandez initially left the abandoned building to retrieve additional
weapons after seeing J.C. brandish a machete and another man brandish a hammer.
Based upon this testimony, it would have been reasonable for the jury to infer Hernandez
and Haro were initially deterred for fear of being outnumbered or inadequately armed.
Thus, Haro’s act of retrieving a bat and following Hernandez back to the abandoned
building can be reasonably seen as encouraging and assisting Hernandez in the shooting
because that act assured Hernandez he would not be outnumbered during a second
encounter. Additionally, Haro’s prior statements exhorting Hernandez to “do him”
9 Indeed it would seem unlikely for jurors to believe that Haro assumed Hernandez returned home just to retrieve a pillow case or nonlethal item hidden under a pillow case in light of the fact that Haro admitted he returned home with the specific intent to arm himself with a weapon to further confront the men in the abandoned building.
17 (referring to J.C.) remain relevant evidence in this analysis. The evidence demonstrates
exactly what Haro encouraged Hernandez to do. Haro and Hernandez were not able to
accomplish this during their initial encounter and, thus, they retrieved additional weapons
and returned to the building. Accordingly, substantial evidence in the record supports a
reasonable inference by the jury that Haro engaged in specific actions to encourage or
assist Hernandez in the shooting. We, therefore, decline to reverse Haro’s conviction for
attempted murder on this ground.
B. The Trial Court Did Not Err in Instructing the Jury
Haro also argues that the trial court erred in failing to instruct on self-defense and
imperfect self-defense, or defense of another. We conclude the record does not contain
substantial evidence to support giving such instructions and therefore find no error.
“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial
court must instruct on the general principles of law relevant to the issues raised by the
evidence.”. . . That obligation has been held to include giving instructions on lesser
included offenses when the evidence raises a question as to whether all of the elements of
the charged offense were present [citation], but not when there is no evidence that the
offense was less than that charged.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.)
“[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included
offense which find substantial support in the evidence.” (Id. at p. 162.)
“[B]oth self-defense and defense of others, whether perfect or imperfect, require
an actual fear of imminent harm.” (People v. Butler (2009) 46 Cal.4th 847, 868.) The
18 subjective element of each of these defenses is identical: the defendant must actually
believe in the need to defend against imminent peril. (People v. Oropeza (2007)
151 Cal.App.4th 73, 82 [“The subjective elements of self-defense and imperfect self-
defense are identical. Under each theory, the appellant must actually believe in the need
to defend himself against imminent peril to life or great bodily injury.”]; People v.
Trujeque (2015) 61 Cal.4th 227, 270-271 [Defense of others requires the trier of fact to
“find an actual fear of an imminent harm.”].) We review de novo a trial court’s decision
not to give such instructions. (People v. Simon (2016) 1 Cal.5th 98, 133.)
2. Application
Here, Haro has not identified any substantial evidence in the record suggesting
that he subjectively believed he needed to defend himself or another from imminent peril,
which would support the giving of an instruction on either self-defense or defense of
another, whether perfect or imperfect. Haro relies on the fact that J.C. was unlawfully
occupying an abandoned building; one of J.C.’s associates allegedly urinated in public
outside the building; and, during an initial encounter, J.C. brandished a machete as
evidence that would support giving self-defense instructions. However, none of these
arguments are persuasive.
The fact that J.C. was unlawfully occupying the abandoned building is not
relevant. There was no evidence to suggest the abandoned building belonged to Haro,
Hernandez, or any other person associated with Haro. Presumably, Haro equally had no
right to be present on the property and, as such, there is no inference of any imminent
19 threat posed to Haro or any person associated with him arising out of J.C.’s presence in
the abandoned building.
The fact that another person associated with J.C. may have urinated in public in
view of Haro, Hernandez, their family members, or their children is equally irrelevant to
a self-defense instruction. While Haro may have found such an act unseemly, urinating
in public without more does not give rise to an inference that the individual poses a threat
of imminent harm to anyone. Moreover, it was undisputed that J.C. was not the
individual whom Haro witnessed urinating in public. Thus, this fact does not support any
inference that J.C. posed any threat of harm to Haro or any other person.
Finally, the fact that J.C. brandished a machete is evidence that might support a
finding that Haro held a subjective fear of imminent harm at the time of Haro’s initial
encounter with J.C. However, it was undisputed that both Haro and Hernandez made
their way back to their residence after this initial encounter, and there is no evidence that
J.C. was holding any weapon when Hernandez and Haro returned to the abandoned
building a second time. The fear necessary to support a self-defense or defense of
another instruction must be of imminent harm and cannot be based upon past threats or
past assaults. (People v. Battle (2011) 198 Cal.App.4th 50, 73.) Thus, such evidence
would not support the giving of a self-defense or defense of another instruction in this
case, since the subjective fear of imminent harm cannot be based purely upon a past
threat. Absent substantial evidence in the record to support a finding that Haro acted out
of fear of imminent harm to himself or another at the time of the shooting, there was no
20 basis for the trial court to give an instruction on self-defense or defense of another,
whether perfect or imperfect, and we find no error in this regard.
C. The Record Does Not Support Hernandez’s Claim of Ineffective Assistance
On appeal, Hernandez contends that his conviction must be reversed because he
received ineffective assistance of counsel. We disagree.
“ ‘ “In order to demonstrate ineffective assistance of counsel, a defendant must
first show counsel’s performance was ‘deficient’ because his ‘representation fell below
an objective standard of reasonableness . . . under prevailing professional norms.’
[Citations.] Second, he must also show prejudice flowing from counsel’s performance or
lack thereof.” ’ ” (People v. Lucas (1995) 12 Cal.4th 415, 436.) Hernandez’s sole
argument on appeal is that his trial counsel’s performance fell below an objective
standard of reasonableness for failure to request a pinpoint instruction regarding
provocation10 and failure to sufficiently argue provocation as a potential defense.
However, in evaluating whether trial counsel’s actions fell below an objective
standard of reasonableness, we cannot ignore the context in which the alleged failure to
act occurred. Here, it was abundantly clear that Hernandez’s trial counsel pursued a
strategy of arguing mistaken identity as his primary defense. Indeed, multiple defense
witnesses testified that it was Hernandez’s brother and not Hernandez who shot J.C.
10 “[A]n instruction on provocation for second degree murder is a pinpoint instruction that need not be given sua sponte by the trial court.” (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1333.) It is undisputed that Hernandez’s trial counsel did not object to the instructions as given regarding provocation and did not request any additional pinpoint instructions on this issue.
21 Having chosen to pursue a defense of mistaken identity, forcefully arguing other defenses
such as provocation or self-defense—which require a defendant to harbor a subjective
state of mind related to the circumstances of the crime—might have caused Hernandez’s
counsel to lose credibility with the jury. We do not believe such a strategic decision to
pursue one defense over another falls below an objective standard of reasonableness.
We note that our colleagues in the Second District Court of Appeal addressed this
very issue under almost identical circumstances in People v. Jones (2014)
223 Cal.App.4th 995. There, the defendant argued he received ineffective assistance of
counsel due to trial counsel’s failure to request a pinpoint jury instruction on provocation.
(Id. at pp. 1001-1002.) Upon review of the record, the appellate court in that case noted:
“[D]efense counsel had two possible theories to present: provocation and mistaken
identity. It would have been difficult to present both while retaining credibility with the
jury. [Defense counsel] chose the second, and presented evidence to support it as best he
could. Given the evidence in the case, counsel cannot be faulted for not succeeding with
what he had to work with, concentrating on the weaknesses and inconsistencies in the
identification evidence.” (Id. at p. 1002) Accordingly, it concluded there was no error
because defense counsel’s tactical choice to pursue the defense of mistaken identity over
the defense of provocation did not fall below accepted standards of reasonableness under
prevailing professional norms. (Id. at pp. 1002-1003.)
The record in this case compels the same conclusion. The fact that Hernandez’s
counsel chose to pursue a defense of mistaken identity at the time of trial over a
seemingly inconsistent defense of provocation does not amount to representation falling
22 below an objective standard of reasonableness. This is particularly true given the number
of defense witnesses apparently willing to testify that Hernandez’s brother was the true
perpetrator of the crime. The choice to pursue one defense instead of the other is not
unreasonable, and we conclude Hernandez has failed to establish ineffective assistance
warranting reversal.
IV. DISPOSITION
The judgments are affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS J. We concur:
MILLER Acting P. J.
MENETREZ J.