Filed 9/29/25 P. v. Zesk 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, E082544
v. (Super.Ct.No. RIF2010146)
DARREN PETER ZESK, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. Bernard Schwartz, Judge.
Affirmed.
Exum Law Offices, Darryl L. Exum; and Arsany A. Said, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance C. Winters, Chief Assistant Attorney General,
Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Susan Elizabeth
Miller and Alana R. Butler, Deputy Attorneys General, for Plaintiff and Respondent.
1 INTRODUCTION
Darren Peter Zesk (Defendant) (age 19) and his nephew Jared Zesk (Jared) (age
18) went to a house party in Moreno Valley with two other friends. During the party, an
altercation occurred between Defendant, Jared, and another party goer, Massai Cole (the
victim). Defendant and Jared left the party in Defendant’s car, stating they would return
to shoot up the party. Defendant and Jared later returned to the party with a firearm.
Jared stayed outside by the car while Defendant returned to the party walking into and
out of the party house four times. Then Defendant walked to the backyard of the house
and approached the victim, asked the victim to follow him to the front of the house where
Jared was waiting to fight the victim one-on-one. The victim followed Defendant, but
before the victim and Defendant reached the front yard, the victim stopped to speak to
someone along the side of the house. As the victim spoke to the individual, Defendant
turned around and shot the victim three times, killing him.
Defendant was charged with murder (Pen. Code1 § 187, subd. (a)) and discharging
a firearm causing death (§ 12022.53, subd. (d)), along with a lying-in-wait special
circumstances allegation. (§ 190.2, subd. (a)(15).) However, a grand jury was convened,
after which a second special circumstances allegation was added that the murder was
motivated by the hatred for the victim’s race. (§ 190.2, subd. (a)(16).) A jury convicted
Defendant of first degree murder with a true finding on the firearm discharge
enhancement and the lying-in-wait special circumstances allegation. The jury could not
1 All further statutory references are to the Penal Code unless otherwise indicated.
2 reach a verdict on the hate crime special circumstances allegation. Defendant was
sentenced to life without the possibility of parole for the murder, plus 25 years to life for
the gun discharge enhancement. Defendant appeals.
On appeal, Defendant argues (1) the court erred in admitting evidence of a
YouTube video with racist content; (2) the court erred in refusing to instruct the jury on
the lesser offense of voluntary manslaughter; (3) the court erred in denying Defendant’s
new trial motion on the ground of erroneous intent to kill instruction; (4) the court erred
in refusing to exclude cell phone and social media content that was racially
inflammatory; (5) the court gave erroneous instructions on intent to kill (repeating issue
no. 3)2; (6) the verdict was contrary to the law or evidence; and (7) there is insufficient
evidence to support the verdict on the lying-in-wait special circumstances allegation. We
affirm.
BACKGROUND
On January 31, 2020, Defendant and his nephew Jared, went to a house party in
the city of Moreno Valley. Jared was wearing a red sweatshirt with a white number four
and Defendant was wearing a darker shirt with a large logo covering the entire front.
While at the party, either Defendant or Jared broke a bottle and refused to clean it up, as a
result of which they were both asked to leave, but refused to go, and the person who
dropped the bottle got a little rowdy. The victim did not like that, and an altercation
occurred between the Defendant, the victim and Jared, and possibly others at the party.
2 We will address the two issues as one.
3 Jared got the worst of it. Defendant stated, “I’m going to shoot up the party,” and then
Defendant and Jared left the party in Defendant’s car.
Just before 12:29 a.m. on February 1, 2020, after Defendant and Jared left the
party, Anthony Tapia received a message from a person at the party regarding some sort
of threat that was called in to the party. The information was communicated over social
media3 that “they” were going to come and shoot up the party. Tapia talked to the person
who first heard of the threat (through Instagram) and obtained a telephone number. Tapia
was not sure if the information was a credible threat or not, so Tapia dialed the phone
number given to him by the person who first received the message.
After leaving the party, Defendant and Jared went to their grandparents’ house in
Riverside, where they spent a little bit of time before driving back to the party in
Defendant’s car.4 Defendant changed his clothes from earlier and was now wearing a
blue flannel jacket or shirt with a black hood. They drove back to the party and arrived
around 1:40 a.m. Defendant parked down the street and headed back to the party while
Jared stayed by the car. Defendant walked into the party and back outside several times,
before going into the backyard of the party.
When Defendant encountered the victim, Defendant told the victim that Jared was
outside, and if the victim came to the front of the house, he could fight Jared one-on-one.
3 The message was linked to a telephone number later identified as Defendant’s telephone number.
4 Officers were able to track Defendant’s movements through the geolocation (GPS) capability of his cell phone, which the officers had obtained.
4 Defendant and the victim walked around to the side of the house. While on the side of
the house, the victim started talking to someone. As the victim talked to the person,
Defendant turned around and fired three shots at the victim, who had his back to
Defendant. Defendant had his gun down by his hip and shot the victim in the back,
stomach, and elbow. Before shooting the victim, Defendant said “something something
N word.”5 Someone also yelled, “N word gonna fight, N word gonna fight.” After the
shooting, Defendant ran back to his car, and he and Jared fled the scene.
Later on the date of the shooting, Defendant invited another nephew, Richard Zesk
(Richard), to accompany him to Big Bear. While in Big Bear, Defendant told Richard
that he and Jared had gone to a party in Moreno Valley in Defendant’s car. Defendant
related to Richard that he and Jared were told to leave the party when someone got mad
over spilled alcohol or something. Once outside, Defendant and Jared got “jumped” and
someone hit them, with Jared being the person jumped on the most. Defendant and Jared
left the party, but returned a little while later, in Defendant’s car, and Defendant brought a
gun. Defendant parked down the street, and went to the party while Jared stayed with the
car. Defendant found one of the men who had jumped Jared and “lured” the victim
outside under the ruse that Jared was outside and that Jared wanted to fight one-on-one.
As Defendant and the victim walked outside through the side yard, the victim stopped to
talk to someone, and while the victim was talking to someone, Defendant turned around
5 On cross-examination, the witness testified that he assumed it was the shooter who said this.
5 and shot the victim Defendant then ran back to his car and drove away with Jared.
Defendant described to Richard the person that he shot as an African-American male.
Timothy Schwenk, a deputy sheriff of Riverside County, responded to a call about
the shooting. When deputy Schwenk arrived, witnesses led the deputy to the backyard
where the victim, an African-American male who had a gunshot wound, was sitting in a
chair. The victim, identified by the deputy as Jevon Massai,6 was struggling to breathe.
The victim died before he was transported to the hospital from a gunshot wound to his
chest. The bullet entered the left side of the victim’s back and exited at the left side of his
chest. Defendant also shot the victim in the elbow.
Law enforcement officers interviewed some of the people at the party. Marvin
Coti told police that the shooter was about 18 to 20 years old, wearing a blue flannel
jacket or shirt and had tattoos on both sides of his neck. One of the tattoos was either a
401 or 951. Bryan Valdovinos, who was also at the party, took a short video using his
cell phone to demonstrate “where it’s talking about there’s going to be a fight,” which he
provided to one of the investigators. Valdovinos told the investigator that the shooter was
wearing a blue flannel with a black hood, and later identified Defendant as the shooter in
a photo lineup.
Defendant’s house, car, and cell phone were searched. Inside Defendant’s
bedroom, police found a blue and black flannel shirt with a black hood. Gunshot residue
6 Although deputy Schwenk initially identified the victim as “Jevon Massai” the prosecutor later clarified the victim’s name, referring to the victim as Massai Cole. The victim’s full name was apparently Massai Jevon Cole. His surname is consistently given as Cole in the accusatory pleading as well as throughout the testimony.
6 was found on the blue flannel jacket. Police also found eight .380-caliber automatic
expended shell casings like the ones found at the scene of the shooting, and a Ruger
handgun box in Defendant’s bedroom. Police also found the sweatshirt Jared was
wearing at the party inside Defendant’s house.
Police gathered surveillance videos from nearby residences and received GPS
coordinates of Defendant’s cell phone locations on the night of the shooting, showing his
movements. The GPS coordinates showed that Defendant’s cell phone was heading
towards the party at 12:05 a.m. on February 1, 2020. Defendant’s cell phone was at the
house party at 12:17 a.m. the time of the confrontation seen on the video. At 12:18 a.m.
Defendant’s cell phone moved to where Defendant’s vehicle was parked. The cell phone
then moved to Defendant’s house at 12:37 a.m., located at 835 Clark Street in Riverside,
about 30 minutes away from where the house party was located. At 12:47 a.m.
Defendant’s cell phone was headed towards the freeway. At about 1:27 a.m. the cell
phone was close to the house party. Surveillance video showed Defendant’s vehicle
driving toward the party. At 1:31 a.m. Defendant’s cell phone was near the backyard of
the party. At 1:33 a.m. Defendant’s cell phone was south of the party. At 1:38 a.m.
Defendant’s cell phone was across the street from the party. At 1:40 a.m. Defendant’s
cell phone was near the rear yard of the party. At 1:49 a.m. Defendant’s cell phone was
about two houses south of the party. At 1:50 a.m. Defendant’s cell phone was heading
back to the party and at 1:51 a.m. was in front of the house party. At 1:52 a.m.
Defendant’s cell phone was towards the backyard of the party. At 1:58 a.m. Defendant’s
cell phone was across the street from the party. At 2:03 a.m. Defendant’s cell phone was
7 near the rear of the party. At 2:06 a.m. Defendant’s cell phone was now to the west of the
house party, and at 2:07 a.m. Defendant’s cell phone left the neighborhood and was back
at Defendant’s home at 2:25 a.m. The video compilation taken from the neighborhood
corresponded with the GPS coordinates of Defendant’s cell phone and were played for
the jury.
Defendant was arrested on February 1, 2020. Defendant had tattoos on his neck.
One of the tattoos on the right side of his neck was the number 951, the area code for the
city of Moreno Valley. On the following day Jared was arrested and had superficial
abrasions on his face and arms.
Defendant was charged by way of indictment with murder (§ 187, subd. (a)), with
an enhancement alleged for personal discharge of a firearm, causing great bodily injury/
or death, as well as a special circumstance allegation that Defendant intentionally killed
the victim by means of lying-in-wait. (§ 190.2, subd. (a)(15).) After a separate grand
jury proceeding, it was also alleged the victim was intentionally killed because of his
race, color, religion, nationality, or country of origin, referred to as a hate crime special
circumstance. (§190.2, subd. (a)(16).)
Following trial, Defendant was convicted of murder and true findings were made
as to the firearm discharge allegation and the lying-in-wait special circumstance. The
jury was unable to reach a finding as to the hate crime special circumstance, so the court
declared a mistrial as to that allegation. On the date of sentencing, Defendant’s motion
for a new trial was denied. Defendant was sentenced to life without the possibility of
parole for the murder, with a consecutive term of 25 years to life for the firearm discharge
8 enhancement. The People’s oral motion to dismiss the hate crime enhancement was
granted.
Defendant timely appealed.
DISCUSSION
1. Whether the Trial Court Erred in Admitting the Video Found on Defendant’s
YouTube Channel
Defendant argues the court erred in admitting the evidence of the YouTube video
(referred to during trial as the “eye video”) because it was a form of artistic expression
within the meaning of Evidence Code section 352.2. We disagree.
a. Background
Police searched the internet using Defendant’s name and discovered a YouTube
channel with a username of “DZeskkk.” A video was found on his channel, and it was
played for the jury. The video was mostly audio, and the lyrics included numerous racial
epithets: “Fuckin’ space force. [¶] Niggers.” “They called me Home Flex after I
graduated space force.” “White power. [¶] Fuck niggers.” “(laughing) Kill them all. [¶]
(unintelligible) nigger.”
Additionally, a search warrant was executed to search Defendant’s cell phone,
which produced additional evidence of Defendant’s hatred of African-Americans.7 The
People’s offer of proof was that Defendant frequently used the “N word” and made
7 The Defendant filed a section 1538.5 motion to suppress certain material obtained from his cell phone because the scope of the search warrant was limited to matters between January 1, and February 3, 2020. The People indicated they had no intention of introducing any evidence.
9 references to Hitler and white power, showing a racial motive to kill. The People
acknowledged that the search had exceeded the temporal scope of the search warrant
respecting the cell phone information, but that they did not intend to introduce any
evidence from Defendant’s cell phone in their case-in-chief, although if Defendant
testified, the People would introduce the evidence as impeachment.
The court ruled that because the People had alleged a hate crime special
circumstance allegation (§ 190.2, subd. (a)(16)), it would allow some of the information
to be admitted, specifically the YouTube video referred to as the “eye video” (because of
an eye in the background), although it agreed to exclude references to Hitler.
Later, Defendant argued the eye video was inadmissible due to lack of adequate
foundation linking the YouTube video to him specifically, and requested an Evidence
Code section 402 hearing. The People argued (by way of an offer of proof) that prior to
the grand jury proceedings, a Google search of Defendant’s name brought up a link to the
eye video on YouTube. The eye video was the only video on a YouTube channel under
Defendant’s name, “DZeskkk.”
Defendant objected because the eye depicted in the YouTube video is not his eye,
and there was no direct evidence that he posted the eye video on his YouTube channel.
The court ruled that it was a matter of weight versus admissibility and found there was
sufficient evidence to place the evidence before the jury.
b. Legal Principles
‘“Relevant evidence’ means evidence, including evidence relevant to the
credibility of a witness or hearsay declarant, having any tendency in reason to prove or
10 disprove any disputed fact that is of consequence to the determination of the action.”
(Evid. Code, § 210.) All relevant evidence is admissible. (Evid. Code, § 351.)
Prior to the enactment of Evidence Code section 352.2, evidence such as rap lyrics
“were generally deemed admissible so long as they were relevant and not so unduly
prejudicial or confusing as to require exclusion under Evidence Code section 352.”
(People v. Venable (2023) 88 Cal.App.5th 445, 455 (Venable), review granted May 17,
2023, S279081, citing People v. Zepeda (2008) 167 Cal.App.4th 25, 34–35.) “The new
[Evidence Code] section 352.2 now requires a trial judge to consider in addition that the
probative value of such evidence is minimal absent certain markers of truth and that
undue prejudice includes the possibility the evidence will inject racial bias and be used to
improperly indicate the defendant’s propensity for violence. (Evid. Code, § 352.2,
subd. (a)).” (Venable, supra, at p. 455, review granted.)
Specifically, Evidence Code section 352.2, which took effect on January 1, 2023
(Stats. 2022, ch. 973, § 2) (Assem. Bill No. 2799 (2021-2022 Reg. Sess.)), was enacted to
“require a court to consider that undue prejudice includes the possibility that the trier of
fact will treat the creative expression as evidence of the defendant’s propensity for
violence or criminal disposition, as well as the possibility that the evidence will inject
racial bias into the proceedings.” (Legis. Counsel’s Dig., Assem. Bill No. 2799 (2021-
2022 Reg. Sess.), Stats. 2022, ch. 973.)
Evidence Code section 352.2 requires the court to consider, in addition to the
factors listed in section 352, that: “(1) the probative value of such expression for its
literal truth or as a truthful narrative is minimal unless that expression is created near in
11 time to the charged crime or crimes, bears a sufficient level of similarity to the charged
crime or crimes, or includes factual detail not otherwise publicly available; and (2) undue
prejudice includes, but is not limited to, the possibility that the trier of fact will, in
violation of Section 1101, treat the expression as evidence of the defendant’s propensity
for violence or general criminal disposition as well as the possibility that the evidence
will explicitly or implicitly inject racial bias into the proceedings.” (Evid. Code, § 352.2,
subd. (a).)
Evidence Code section 352.2 goes on to provide in subdivision (b), “[i]f proffered
and relevant to the issues in the case, the court shall consider the following as well as any
additional relevant evidence offered by either party: [¶] (1) Credible testimony on the
genre of creative expression as to the social or cultural context, rules, conventions, and
artistic techniques of the expression. [¶] (2) Experimental or social science research
demonstrating that the introduction of a particular type of expression explicitly or
implicitly introduces racial bias into the proceedings. [¶] (3) Evidence to rebut such
research or testimony.
Evidence Code section 352.2, subdivision (c) provides, “[f]or purposes of this
section, ‘creative expression’ means the expression or application of creativity or
imagination in the production or arrangement of forms, sounds, words, movements, or
symbols, including, but not limited to, music, dance, performance art, visual art, poetry,
literature, film, and other such objects or media.”
Much of the recent decisional authority addressing Evidence Code section 352.2
involves the question of retroactivity. (See Venable, supra, 88 Cal.App.5th at p. 456,
12 review granted [Evid. Code, § 352.2 “is ameliorative and therefore applies to cases that
are not yet final”]; see also, People v. Ramos (2023) 90 Cal.App.5th 578, 596, review
granted July 12, 2023, S280073 [Evid. Code, § 352.2 is “not an ameliorative enactment”
and therefore “does not apply retroactively”], and People v. Slaton (2023) 95 Cal.App.5th
363, 376, review granted Nov. 15, 2023, S282047 [same].) Retroactivity is not at issue in
the present case, where Defendant’s trial took place after the effective date of the new
legislation.
We review evidentiary rulings for abuse of discretion. (People v. Boyce (2014) 59
Cal.4th 672, 687, citing People v. Streeter (2012) 54 Cal.4th 205, 237.)
A court abuses its discretion if it acts “in an arbitrary, capricious, or patently
absurd manner.” (People v. Thomas (2012) 53 Cal.4th 771, 806.) In other words, the
trial court’s decision to admit or exclude evidence “will not be disturbed except on a
showing the trial court exercised its discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice.” (People v. Rodriguez
(1999) 20 Cal.4th 1, 9–10.)
c. Analysis
Defendant’s primary objection to the admission of the YouTube video is that it
injected racial bias into the proceedings. Defendant does not argue that the trial court
abused its discretion by admitting the evidence or that the probative value of the YouTube
video as evidence of Defendant’s motive was outweighed by the prejudicial effect of the
evidence (Evid. Code, § 352), or that the trial court failed to consider the statutory factors
13 set forth in Evidence Code section 352.2. For the most part, Defendant argues that there
is no direct evidence that Defendant was the person who created the uploaded post.
Defendant also does not argue that admission of the video into evidence
constituted a specific violation of Evidence Code section 352.2, or demonstrate the
prejudicial effect of the admission of evidence, so any such argument is forfeited.
‘“[E]ach appellant has the burden of demonstrating error and prejudice.”’ (People v.
Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 364, citing People v. Nero (2010) 181
Cal.App.4th 504, 510, fn. 11.) He has failed to cite any authority for the proposition that
such evidence is irrelevant in a case where a hate-crime special circumstance is alleged.
It is generally held that, “[t]o demonstrate error, appellant must present meaningful
legal analysis supported by citations to authority and citations to facts in the record that
support the claim of error.” (In re S.C. (2006) 138 Cal.App.4th 396, 408.) An appellant
who fails to do so does not meet his burden on appeal, and a reviewing court need not
consider the claim. (People v. Catlin (2001) 26 Cal.4th 81, 133 [The defendant “fails to
offer any authority or argument in support of this claim, so it is not considered”].)
More importantly, because the jury failed to reach a decision on the hate crime
special circumstance, Defendant cannot show, and has not shown any prejudice,
demonstrated by the absence of any attempt to establish prejudice in his brief.
Nevertheless, due to the seriousness of the charges, we briefly address the merits.
We disagree that the evidence of the YouTube video injected race into the
proceedings, because that issue was injected by the special circumstance allegation that
the crime was committed due to the victim’s race. Having alleged the special
14 circumstance that the victim was intentionally killed because of his, color, religion,
nationality, or country of origin, the People had the burden of proving that the Defendant
was motivated to kill the victim due to the victim’s race, color, religion, nationality or
country of origin. (1 CALCRIM No. 700 [“The People have the burden of proving
(the/each) special circumstance beyond a reasonable doubt”].)
Because the hate-crime special circumstance relates to a racial motive for the
murder, evidence tending to show Defendant’s racial prejudice or hatred was relevant,
and, as relevant evidence, admissible. In this respect, the special circumstance provides
an “enhanced penalty for first degree murder committed because of prohibited bias
motivation and is not directed at free expression protected by the First Amendment.”
(People v. Lindberg (2008) 45 Cal.4th 1, 37, citing Wisconsin v. Mitchell (1993) 508 U.S.
476, 485–490 [holding that the enhancement statute, directed at conduct committed
because of prohibited bias motivation, does not punish free speech in violation of the
First Amendment]; In re M.S. (1995) 10 Cal.4th 698, 725 [holding that § 422.7, a hate
crime statute, properly sanctions bias-motivated conduct and does not implicate a
defendant’s First Amendment rights].)
The offensive tract in question is highly probative of Defendant’s bias and
prejudice against African-Americans, or the “hate” aspect of the murder. Evidence Code
section 1101, subdivision (b), expressly authorizes the introduction of evidence of a
crime, civil wrong, or other act when relevant to prove some fact, such as motive.
Demonstrating through expressions attributable to Defendant that he hates African-
Americans was highly relevant to his motive to kill the victim, where Defendant appears
15 to have sought out the victim by making multiple entrances to the house party and
backyard to find the victim to lure away. Given that there were others involved in the
assault on Jared who were not African-American, there is a strong inference Defendant
intentionally sought out the only African-American due to the victim’s race.
The court advised defense counsel that the defense could challenge the weight of
the evidence, and the defense called two African-American witnesses who had been
Defendant’s friends in high school. Defendant was also afforded an opportunity to
challenge the foundation for admissibility of the video but presented no evidence. It was
Defendant’s burden to challenge the foundation for the admission of the YouTube video
by showing it was not linked to him, but he did not do so.
The video posted on YouTube was relevant to establish the racial prejudice of the
person posting it, identified as “DZeskkk.” A nexus to Defendant was logical in the
absence of evidence that the video was created by someone else, or that the YouTube
channel was not linked to Defendant, where the video was located by executing a Google
search for Defendant’s name. The content revealed a decidedly racially prejudiced
sentiment against African-Americans; it was bigoted and hateful.
The reference to “kill them all” was also relevant to motive, the thrust of the hate-
crime special circumstance. Relevant evidence is that which has “any tendency in reason
to prove or disprove any disputed fact that is of consequence to the determination of the
action.” (Evid. Code, § 210; People v. Lamb (2024) 16 Cal.5th 400, 423.) As such,
evidence of the video posted on Defendant’s YouTube channel, evidencing racial bias,
prejudice, and hatred, had probative value. Considered along with statements made by or
16 attributed to Defendant while at the party using racial slurs, and his use of similar epithets
and expressions of anti-African-American sentiment, the YouTube video clip was
relevant as evidence of a racially biased motive for the shooting.
The court’s in limine rulings indicated that a proper foundation for admissibility
had been laid, which Defendant does not challenge here. The court allowed Defendant to
attack the weight of the evidence, which he did, by introducing evidence he had African-
American high school friends. Defendant was also free to introduce evidence that
someone other than himself created and posted the video on YouTube during his in limine
challenge to the foundation of the evidence, but Defendant did not do so.
Further, the trial court specifically referred to Evidence Code section 352.2, so we
presume the court followed its mandate and exercised its discretion after considering the
statutory provisions. (See Evid. Code, § 664 [presumption that official duty has been
regularly presumed]; People v. Gutierrez (2009) 174 Cal.App.4th 515, 527 [presumption
that court exercised discretion at sentencing].)
Defendant’s greatest obstacle to his challenge is his failure to argue or demonstrate
prejudice from the admission of the evidence, in light of the fact the jury failed to make a
true finding on the hate-crime special circumstances. Absent error or prejudice,
Defendant has failed to carry his burden on appeal.
2. Whether the Trial Court Properly Refused to Instruct the Jury on Voluntary
Manslaughter Based on Imperfect Self-Defense
Defendant argues that the trial court improperly refused to instruct the jury on
principles of imperfect self-defense, thereby negating the lesser offense of voluntary
17 manslaughter. Defendant’s argument in the trial court was that Defendant was
surrounded by the victim’s friends and that Defendant was fearful because Jared had been
assaulted earlier. We disagree.
“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. [Citations.] The general principles of law governing the case are those
principles closely and openly connected with the facts before the court, and which are
necessary for the jury's understanding of the case.” (People v. St. Martin (1970) 1 Cal.3d
524, 531.)
Thus, when there is “substantial evidence of imperfect self-defense in a murder
case, the trial court's failure to instruct on that theory precludes the jury from making a
factual finding that is necessary to prove the malice element of murder.” (People v.
Schuller (2023) 15 Cal.5th 237, 260.) In such situations, the error “amounts to a
violation of the federal Constitution and is subject to Chapman’s ‘beyond a reasonable
doubt’ standard for evaluating prejudice. (Ibid., referring to Chapman v. California
(1967) 386 U.S. 18, 24.)
“An instruction on a lesser included offense is required when the evidence that the
defendant is guilty only of the lesser offense is “‘substantial enough to merit
consideration’ by the jury.’’ [Citations.] Substantial evidence consists of evidence from
which a reasonable jury could conclude the lesser offense, but not the greater, was
committed.’ [Citation.] A reviewing court should not evaluate the credibility of
witnesses. [Citation.] ‘[T]he existence of “any evidence, no matter how weak” will not
18 justify instructions on a lesser included offense.’” (People v. Martinez (2024) 106
Cal.App.5th 892, 901.)
It is not error to refuse an instruction on voluntary manslaughter unless those
lesser included offenses supported by substantial evidence. (People v. Duff (2014) 58
Cal.4th 527, 562.) ‘“Speculative, minimal, or insubstantial evidence is insufficient to
require an instruction on a lesser included offense.”’ (People v. Thomas (2023) 14
Cal.5th 327, 385 (Thomas), citing People v. Simon (2016) 1 Cal.5th 98, 132 (Simon).)
Imperfect self-defense “occurs when a defendant acts in the actual but
unreasonable belief that he or she is in imminent danger of great bodily injury or death.”
(Simon, supra, 1 Cal.5th at p. 132.) “Imperfect self-defense reduces an intentional,
unlawful killing to voluntary manslaughter, a lesser included offense of murder, by
negating a defendant’s malice.” (Thomas, supra, 14 Cal.5th at p. 386, citing Simon, at
p. 132.)
It is insufficient that one is provoked and later kills. (People v. Beltran (2013) 56
Cal.4th 935, 951.) Additionally, it is error to instruct on a lesser included offense when a
defendant, if guilty at all, could only be guilty of the greater offense, i.e., when the
evidence, even construed most favorably to the defendant, would not support a finding of
guilt of the lesser included offense but would support a finding of guilt of the offense
charged. (People v. Hawkins (1995) 10 Cal. 4th 920, 954, overruled on a different point
in People v. Blakely (2000) 23 Cal.4th 82, 89 & People v. Lasko (2000) 23 Cal.4th 101,
110; People v. Stewart (2000) 77 Cal.App.4th 785, 795–796.)
19 Here, Defendant did not testify at trial, so there was no evidence presented to the
jury that he honestly and reasonably believed he had killed in the unreasonable belief that
his life or Jared’s was in imminent danger. (See People v. Brooks (2017) 3 Cal.5th 1, 75.)
Further, there was a cooling off period when Defendant and Jared drove back to their
home to change clothes and obtain the firearm that was used in the shooting of the victim.
A finding that Defendant harbored an unreasonable fear of imminent harm after such a
delay would have been a longshot.
We conclude there was no instructional error in failing to instruct on either
imperfect self-defense or instructing on the lesser offense of manslaughter. The evidence
that Defendant (along with Jared) left the party stating that he would shoot up the party,
went home, changed clothes, obtained a firearm, returned to the party, sought out the
victim, lured the victim to accompany Defendant to the front of the house, and shot the
victim while the victim’s back was turned to speak to another party guest, is susceptible
to only one interpretation: Defendant premeditated the murder of the victim and
intentionally killed the victim by means of lying-in-wait.
Absent any evidence presented to support an instruction on imperfect self-defense
or voluntary manslaughter as a lesser offense, there is no error in refusing to give the
requested instructions.
3. Whether the Trial Court Abused Its Discretion in Denying Defendant’s Motion for
a New Trial Based on the Definition of Intent to Kill Following a Jury Question
Defendant argues that the trial court abused its discretion in denying his motion for
a new trial, brought on the ground the trial court gave an improper definition of intent to
20 kill in response to a jury question, regarding the special circumstances finding. We
disagree.
Both in the trial court and in this court, Defendant has placed his reliance on
decisional authority (People v. [Jose Francisco] Guerra (2006) 37 Cal.4th 1067 ([J.F.]
Guerra),8 which purportedly discusses the element of specific intent to kill necessary to
support an attempted murder charge. However, in that [J.F.] Guerra case, the defendant
was charged with felony murder, along with a special circumstance allegation that the
murder was committed in the course of an attempted rape, not attempted murder. (Id., at
pp. 1129–1133.) The only reference to attempted murder in that case related to the trial
court’s proposed instructions related to unadjudicated prior criminal activity evidence,
offered at trial in that case pursuant to former section 190.3, subfactor (b). (Id., at
p. 1146.) This [J.F.] Guerra case is inapposite.
Additionally, the passage quoted by Defendant in his opening brief does not relate
to the definition of intent to kill to support a special circumstance finding. Instead,
Defendant refers incorrectly to the passage addressing the specific intent to kill needed to
support an attempted murder charge in a different Guerra case, People v. [Danny
Montana] Guerra (1985) 40 Cal.3d 377 ([D.M.] Guerra). In that [D.M.] Guerra
decision, the defendant was convicted of murder as well as attempted murder, along with
8 Defendant has cited two different cases involving defendants with the same surname. The defendants in the two decisions are not the same person, and the issues are not the same. The citation referred to in Defendant’s brief refers to an earlier opinion which we ultimately found in our research, as we point out. To distinguish the two opinions, we insert the first names or initials of the respective defendants in brackets.
21 robbery and multiple special circumstances allegations. (Id., at p. 381.) The passage
cited by Defendant in his opening brief refers to the challenge to the attempted murder
conviction, not the murder count, and not the special circumstance allegation, so it is
inapplicable to a review of the adequacy of the definition of intent to kill required for a
special circumstance allegation.
In the [D.M.] Guerra, supra, 40 Cal.3d at page 387 case that we found in our
research, the court instructed the jury on two theories of murder: willful, deliberate and
premeditated murder, as well as felony murder. However, in instructing the jury on the
felony-murder special circumstance, the court did not instruct the jury of the need to find
an intent to kill, as required by the then recently decided case, Carlos v. Superior Court
(1983) 35 Cal.3d 131, 152–154.) Because the Supreme Court could not determine which
theory was adopted by the jury in finding the defendant guilty of first degree murder, it
declined to imply a finding of intent to kill for the special circumstance allegation from
the fact of the defendant’s first degree murder conviction. ([D.M.] Guerra, at p. 388.)
This authority is also unhelpful to our decision. Defendant was not charged with
attempted murder, and the trial court did instruct the jury on intent to kill for the special
circumstance allegation. Defendant has cited no authority holding that the instruction
used by the trial court in instructing the jury on this element was incorrect and we
conclude there was no error in the instruction on intent to kill given to the jury in
response to its question for further definition of the element respecting the special
circumstance.
22 The trial court did not abuse its discretion in denying Defendant’s motion for new
trial for instructional error.
4. Whether the Trial Court Properly Admitted for Impeachment Evidence of
Defendant’s Racial Slurs and References to White Power Found on Defendant’s
Cell Phone
Defendant argues that the trial court made an erroneous in limine ruling to permit
the People to impeach him with evidence of his messages in which racial epithets are
used.
However, we note that Defendant did not testify so no impeachment evidence was
ever introduced. This is fatal to Defendant’s claim of error in the in limine ruling on the
proposed impeachment evidence. An in limine ruling on admissibility is not binding if
the evidence is later introduced. (People v. Williams (1988) 44 Cal.3d 883, 912.) It is
now well-settled jurisprudence that a defendant must testify to preserve a challenge to the
court's tentative ruling on impeachment. (People v. Duong (2020) 10 Cal.5th 36, 57,
citing People v. Ledesma (2006) 39 Cal.4th 641, 731.)
However, because the Defendant did not testify, no impeachment evidence was
introduced. Because Defendant did not testify, he may not challenge the in limine ruling
by the trial court on the admissibility of potentially impeaching evidence.
5. Whether the Trial Court Abused Its Discretion in Denying Defendant’s New Trial
Motion on the Ground the Verdict Was Contrary to Law or Evidence
Defendant argues the trial court abused its discretion in denying his motion for
new trial on the ground the verdict was contrary to law or evidence. In making his
23 argument, Defendant claims his case is factually similar to that of People v. Oliver (1975)
46 Ca1.App.3d 747 (Oliver), where the reviewing court affirmed an order granting a new
trial in the interest of justice. Specifically, Defendant asserts, “The facts of Oliver are
similar. The defendant presented alibi evidence which, although it did not exclude the
possibility that he committed the crime, made it highly unlikely if the evidence was
believed. Indeed, one of the victims who identified defendant had been unable to identify
defendant's picture the day after the robbery. The court granted a new trial.”
Defendant provides no legal analysis to support this analogy. He has set forth
cases discussing the general principles governing review of orders granting or denying
new trial motions. Defendant’s motion for a new trial was made on multiple grounds,
with one heading that referred to the verdict being contrary to law or evidence. The
argument there was similar to that made on appeal, in that Defendant provided the court
with only a discussion of the legal principles governing new trial motions in general, as
well as a reference to Oliver, supra, 46 Ca1.App.3d 747, without any pinpoint reference,
and the curious statement that this case was similar. It is not similar in any respect.
However, at no point, either in the trial court or on appeal, has the Defendant
indicated a factual or evidentiary analysis of how the verdict in this case was contrary to
the law or the evidence, and at the hearing on the motion in the trial court, when the court
invited further argument, defense counsel simply submitted on the moving papers. The
court therefore reviewed the claim as it related to the lying-in-wait special circumstance,
summarized the record evidence supporting the verdicts and findings, and concluded it
24 was “a classic lying-in-wait.” Defendant did not ask the court for further consideration of
the sufficiency of the evidence on any other issue or finding.
On appeal, Defendant’s only legal analysis to support the propriety of granting a
new trial in this case was the same reference to Oliver, supra, 46 Ca1.App.3d 747, where
the order granting (not denying) the new trial did not specify any grounds. On appeal, the
reviewing court noted that the trial court had made prejudicial comments on the
believability of the defendant, Oliver, and the defense witnesses’ testimony, infecting the
verdict. (Id., at p. 753.) This case does not support Defendant’s position that a new trial
should have been granted on the ground that the verdict was contrary to the law or
evidence in this case.
As the Supreme Court summarized in People v. Davis (1995) 10 Cal.4th 463 at
pages 523–524, “In reviewing a motion for a new trial, the trial court must weigh the
evidence independently. [Citation.] It is, however, guided by a presumption in favor of
the correctness of the verdict and proceedings supporting it. [Citation.] The trial court
‘should [not] disregard the verdict . . . but instead . . . should consider the proper weight
to be accorded to the evidence and then decide whether or not, in its opinion, there is
sufficient credible evidence to support the verdict.’ [Citation.] [¶] A trial court has broad
discretion in ruling on a motion for a new trial, and there is a strong presumption that it
properly exercised that discretion. ‘“The determination of a motion for a new trial rests
so completely within the court's discretion that its action will not be disturbed unless a
manifest and unmistakable abuse of discretion clearly appears.”’”
25 Here, the trial court went through the evidence as viewed in light of the elements
of the special circumstance allegation and found it was clear Defendant’s intent was to
kill the victim and catch the victim by surprise, after going in and out of the house where
the party took place, waiting for an opportunity to lure the victim away from the party
and shoot the victim. The trial court did not abuse its discretion in denying the motion
for a new trial on the ground the verdict was contrary to law or evidence.
6. Whether Substantial Evidence Supports the True Finding on the Lying-in-Wait
Special Circumstances Allegation
Defendant argues that the special circumstances finding of lying-in-wait was not
supported by substantial evidence. We disagree.
On a challenge to the sufficiency of trial evidence to support a jury’s factual
determinations, we review the whole record to determine whether ‘“any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt.’
[Citations.] ‘The standard of review is the same in cases in which the prosecution relies
mainly on circumstantial evidence.’ [Citations.] ‘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.”’ (People v. Westerfield (2019) 6 Cal.5th 632, 713.)
The requirements for the lying-in-wait special circumstance are slightly different
from, and more stringent than, the requirements for lying-in-wait first degree murder.
(People v. Mendoza (2011) 52 Cal.4th 1056, 1072–1073.) Lying-in-wait first degree
26 murder requires only that the murder be perpetrated “by means of” lying in wait (§ 189,
subd. (a)), while the lying-in-wait special circumstance applies to murders where the
defendant “intentionally killed the victim by means of lying in wait.” (§ 190.2,
subd. (a)(15); People v. Lewis (2008) 43 Cal.4th 415, 511–512.)
Although the language of section 190.2, subdivision (a)(15), as it existed up until
2006, required a finding that the murder was committed “while lying in wait” the current
version of the lying-in-wait special circumstance employs the language “‘by means of’
lying in wait,” and requires proof of “an intentional murder, committed under
circumstances which include (1) a concealment of purpose, (2) a substantial period of
watching and waiting for an opportune time to act, and (3) immediately thereafter, a
surprise attack on an unsuspecting victim from a position of advantage.” (People v.
Nelson (2016) 1 Cal.5th 513, 549, citing People v. Morales (1989) 48 Cal.3d 527, 557.)
It is not sufficient to merely show the elements of waiting, watching and concealment; it
must also be shown that the defendant did those physical acts with the intent to take his
victim unawares and for the purpose of facilitating his attack. (People v. Brown (2023)
14 Cal.5th 453, 465, citing People v. Mattison (1971) 4 Cal.3d 177, 183.)
“‘The element of concealment is satisfied by a showing “‘that a defendant's true
intent and purpose were concealed by his actions or conduct. It is not required that he be
literally concealed from view before he attacks the victim.’”’’’ (Nelson, supra, 1 Cal.5th
at pp. 549–550, citing People v. Sims (1993) 5 Cal.4th 405, 432–433 & People v. Combs
(2004) 34 Cal.4th 821, 853.) Further, “physical concealment from, or an actual ambush
27 of, the victim is not a necessary element of the offense of lying-in-wait murder.” (People
v. Arellano (2004) 125 Cal.App.4th 1088, 1095 (Arellano).)
‘“The concealment which is required, is that which puts the defendant in a position
of advantage, from which the factfinder can infer that lying-in-wait was part of the
defendant's plan to take the victim by surprise. [Citation.] It is sufficient that a
defendant's true intent and purpose were concealed by his actions or conduct.’”
(Arellano, supra, 125 Cal.App.4th at p. 1096, citing People v. Morales (1989) 48 Cal.3d
527, 554–555, overruled on a different point in People v. Williams (2010) 49 Cal.4th 405,
459.)
There is substantial evidence in the present case where the requisite elements of
the lying-in-wait special circumstance have been met: Defendant left the party after
stating an intent to return to shoot up the party and he did return to the party with a
firearm. Defendant went into the party and back outside again several times before going
to the backyard. When Defendant located the victim, Defendant told the victim that Jared
was outside and that if the victim came outside, Jared and the victim could fight one-on-
one. In so doing, Defendant concealed his true purpose in luring the victim away from
the party. Defendant and the victim then walked around the side of the house, where the
victim turned to speak to someone. Defendant, who held the gun at his hip level, turned
and fired at the victim as the victim’s back was turned to speak to the other individual,
from a position of advantage in a surprise move. Defendant then fled and drove home
with Jared.
28 This evidence shows that Defendant lured the victim to accompany him to the
front of the house, concealing the weapon and Defendant’s true intent to shoot “the
victim unawares.” (People v. Brown, supra, 14 Cal.5th at p. 465.) Defendant’s actions
satisfy the requirements for a lying-in-wait special circumstance.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
FIELDS J. RAPHAEL J.