People v. Patino CA5 ( 2021 )

Filed 2/17/21 P. v. Patino CA5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
THE PEOPLE,
F077433
Plaintiff and Respondent,
(Super. Ct. No. 17CMS0161)
v.
ERIK CORY PATINO, OPINION
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kings County. Thomas
DeSantos, Judge.
Jennifer A. Mannix, under appointment by the Court of Appeal, Defendant and
Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and
Darren K. Indermill, Deputy Attorneys General, for Plaintiff and Respondent.
-ooOoo-
Defendant Erik Cory Patino was convicted by jury trial of murder and possession
of a firearm by a felon. On appeal, he contends (1) the trial court erred in permitting the
prosecutor’s gang expert to directly opine that Patino acted for the benefit of a criminal
street gang and did not act in self-defense; (2) the court erred in failing to instruct the jury
that the reasonable person standard for self-defense and heat of passion includes
consideration of a defendant’s age, intelligence, and experience; (3) the court erred in
failing to instruct the jury on general and specific intent; and (4) these errors cumulatively
violated Patino’s right to due process. We affirm.
PROCEDURAL SUMMARY
On September 11, 2017,1 the Kings County District Attorney charged Patino with
murder (Pen. Code,2 § 187, subd. (a); count 1) and possession of a firearm by a felon
(§ 29800, subd. (a)(1); count 2). As to count 1, the information alleged Patino was an
active member of a criminal street gang and committed the offense for the benefit of a
criminal street gang (§§ 186.22, subd. (b)(1)(C) & (b)(5), 190.2, subd. (a)(22)), and
personally used and intentionally discharged a firearm causing death (§§ 12022.5,
subd. (a), 12022.53, subds. (b)-(d)).
On March 23, 2018, the jury found Patino not guilty of first degree murder but
guilty of second degree murder on count 1 and guilty as charged on count 2. The jury
found true the gang and firearm allegations.
On April 24, 2018, the trial court sentenced Patino to 40 years to life in prison as
follows: on count 1, 15 years to life, plus an additional term of 25 years to life for
intentionally discharging a firearm causing death. The trial court also imposed and then
stayed a 10-year gang enhancement, a 10-year personal use of a firearm enhancement, a
1 All further dates refer to the year 2017 unless otherwise stated.
2 All further statutory references are to the Penal Code unless otherwise stated.
2.
20-year intentional discharge of a firearm enhancement, and a four-year personal use of a
firearm enhancement on count 1, and a two-year term on count 2.
On the same day, Patino filed a notice of appeal.
FACTUAL SUMMARY
Prosecution’s Case
Patino was a Sureño gang member. On January 28, he shot and killed the victim,
Jonathan Rivas, who was a Norteño gang member.
Confrontation and Shooting
G.K.
On January 28, at roughly 10:00 a.m., G.K. was driving west on Orange Avenue
toward Letts Avenue in Corcoran. When he was about 1,000 feet from the intersection,
he saw Patino and Rivas. Patino stood on the north side of the street and Rivas stood on
the south side. G.K. saw one of the men advance and the other retreat. Then the
retreating man advanced and the other man retreated. G.K. testified that this “back and
forth [continued] until [he] got closer.” G.K. testified that Patino and Rivas were no
closer to each other than 30 yards at any point in the conflict that he observed. Neither
man appeared to be holding anything, but G.K. noticed that Patino was wearing a grey
and white flannel overcoat that appeared not to hang normally because of an item
concealed underneath.
G.K. “sped up … to get out of the area.” He looked back after passing Patino and
Rivas and saw Patino in the “middle of the westbound lane” where he “raise[d] his arm”
parallel to the ground in the direction of Rivas. At that point, Rivas appeared to be
retreating. G.K. did not see Patino or Rivas holding a weapon and did not hear a gunshot.
Approximately 10 or 15 minutes later, G.K. drove through the same intersection.
He saw police taping off the area and surrounding Rivas’s body.
3.
C.C.
C.C. also witnessed the interaction between Patino and Rivas on January 28. She
saw Patino and Rivas on the south side of Orange Avenue at Letts Avenue. Rivas walked
toward Patino and the men began arguing with, and gesturing at, each other. Both men
bent their arms at the elbows and put their hands in the air. At that point, the men were
between 12 and 15 yards apart.
The two men began to walk toward each other “like they were about to fistfight”
but did not reach each other. Patino then crossed Orange Avenue to the north side of the
street, away from Rivas. Rivas ran after Patino but did not move into the street to cross
to the north side of the street. C.C. testified “it looked like [Rivas] was going in for a
fistfight.” She could not tell if Rivas was holding anything because he had his back to
her and was running. Patino then revealed what C.C. believed to be a rifle. Patino held
the rifle with two hands, kneeled on one knee, and pointed the rifle at Rivas. At that
point, Rivas did not appear to be moving toward Patino or trying to hit him.
When C.C. saw the gun, she moved away from the men because she had her child
with her. She then heard (but did not see) two gunshots in quick succession. After the
gunshots, she heard what sounded like “somebody yell[ing] in pain.” “[A] while after
[she] heard the shots,” C.C. came out from where she was hiding. She saw Rivas on the
ground but did not see Patino.
B.D.
B.D. lived in the area of the altercation. He saw Patino and Rivas on opposite
sides of Orange Avenue at Letts Avenue. They were about 50 feet apart and never got
closer to each other than that. B.D. heard the two men arguing and then heard three
gunshots. The shots sounded like they came from a small-caliber weapon. After the first
gunshot the men continued to argue. Patino then fired a second shot and Rivas began to
run south and east, away from Patino. Patino then fired a third shot. Rivas fell as he
continued to try to run away.
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B.D. and his friend, R.R., went to Rivas and tried to help him. B.D. saw that
Patino was Hispanic but did not notice where he went, what he looked like, or what he
was wearing.
R.R.
R.R. lived near the altercation and knew Patino from the neighborhood. R.R. was
with B.D. when he heard Patino and Rivas arguing. Patino walked backward, away from
Rivas, crossing Orange Avenue to the north where the street intersected with Letts
Avenue. Patino and Rivas then stood on either side of Orange Avenue, “arguing [with]
each other [and] cussing at each other[;] F this, and F that.” “[T]hey were saying f[***]
you puto, Sureño, south side. All this gang stuff. You know, Norteño this, and Sureño
this, and south side, puto this.” Patino “was saying something about south side[; Rivas]
was saying Norteño this, Norteño that.”
R.R.’s view of Patino was obstructed by a wooden fence, but he heard a small-
caliber gunshot from where he believed Patino to be standing—at the telephone pole on
the north side of Orange Avenue at Letts Avenue. After the first shot, Rivas began
backing away from Patino and said, “You missed puto, try again.” Rivas then began to
run, and Patino fired two more shots. Rivas fell near a drainage hole southeast of the
intersection of Orange and Letts Avenues. After the shooting, R.R. called 911, confirmed
that Patino was gone, and ran to Rivas to try to help.
R.R. never saw Rivas holding a screwdriver or any kind of weapon.
Law Enforcement Response
After the shooting, Corcoran Police Sergeant Alex Chavarria found Rivas’s body
about 100 yards southeast of the intersection of Orange Avenue and Letts Avenue. Rivas
was not breathing and appeared to have a wound on his right arm. A pack of cigarettes, a
lighter, a book of matches, and a screwdriver were found in his front pocket.
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Corcoran Police Property and Evidence Clerk Jimmy Roarke found a .22-caliber
bullet casing in a cement gutter near the roadway at the intersection of Letts Avenue and
Orange Avenue.
The same day, Kings County Sheriff’s Deputy Oscar Torres spoke to Patino’s
grandmother and father. Patino’s grandmother, L.P., told Torres that Patino came from
out of town and wanted to “play badass.” He bought the rifle a few months before the
shooting and sawed off the barrel. When he returned to her house after shooting Rivas
“told [her] what he did.” She told Torres that Patino “shot that other person” and “took
[his] life.” After the shooting, Patino asked L.P. to take the rifle, but she refused. She
told Torres that the rifle was hidden in the recessed light housing of the china cabinet in
her house.
Patino’s father, M.P., told Torres that Patino had a sawed-off .22-caliber rifle that
he got from a friend. Patino carried the rifle in his pants for protection from the
Norteños. On the day of the shooting, M.P. saw Patino wearing a black and white
Pendleton jacket and a Cowboys hat. Patino told M.P. about the shooting. Patino did not
appear to be scared; “he was laughing about [the shooting].”
That day, Roarke and other officers arrested Patino and searched his
grandmother’s house. Roarke recovered a loaded .22-caliber semi-automatic tube-fed
rifle wrapped in a black T-shirt from a recessed lighting area above a china cabinet. The
rifle was sawed off at the barrel, magazine tube, and stock. Roarke also recovered .22-
caliber ammunition on the driveway and in the dining room. Finally, Roarke found a
“[P]endleton sweater or jacket … [that] matched the description of the sweater or jacket
worn by the subject.”
After Patino was arrested, Roarke swabbed Patino’s hands for gunshot residue.
California Department of Justice Senior Criminalist Megan Gallagher tested those
samples and confirmed that they contained gunshot residue. The gunshot residue found
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on Patino’s hands was of a concentration not commonly found unless a person has
handled a firearm or has been around a shooting.
California Department of Justice Senior Criminalist Jessica Winn testified that she
examined the rifle recovered from the grandmother’s house, the bullet recovered from
Rivas’s body, and a cartridge case recovered from the scene. The rifle, bullet, and
cartridge case were all .22-caliber. The bullet had characteristics that suggested it may
have been fired from the rifle. However, Winn determined the cartridge case was not
fired from the rifle.
Autopsy
Dr. Gary Walter performed the autopsy on Rivas. Rivas suffered a single gunshot
wound to the right shoulder area. The bullet passed through the right lung, lacerated the
aorta, passed through the left lung, and came to a rest near the skin on the left side of
Rivas’s chest. The gunshot caused “rapid hemorrhag[ing] into the right and left chest
cavities,” and caused Rivas’s death.
Gang Evidence
Corcoran Gang Culture
Deputy Torres, who was working with the gang taskforce, explained that the
Norteño and Sureño gangs are both “territorial and turf[-]oriented,” predominantly
Hispanic rival gangs. Gangs bring in “profit by stealing cars, or doing burglaries, or
selling … narcotics.” Territorial gangs “claim territory so that they can conduct their
illegal activities more freely.” They use graffiti to show each other which territories they
claim and to tell rival gang members to stay away. They challenge each other for
territory by covering each other’s graffiti or through open acts of violence. When a gang
controls a territory and makes it well known that the gang is violent and protective of its
territory, “other gangs are not going to want to go there[] because it is already taken.”
Similarly, gang members and community members are less likely to report criminal
activity by a violent gang and are often reluctant to provide information to law
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enforcement about a violent gang because they fear being labeled a “snitch” and being
violently retaliated against by the gang.
Gang members put great weight on respect and want others to fear them. For
instance, a Sureño will call a rival Norteño the derogatory terms “buster,” “chapeta,”
“chapete, or chap” as a sign of disrespect. Similarly, Norteños often call a Sureño a
“scrap” as a sign of disrespect. When a gang member is disrespected by a rival gang
member in public, he must respond “with a violent act, or a disrespectful remark,” or “he
will be seen as a coward.” To that end, gang members often carry weapons, ranging from
knives and guns to makeshift weapons like screwdrivers. Generally, a gang member
elevates his status and reputation in a gang by committing crimes. A gang member who
kills a rival gang member increases his own status in the gang and the status of the gang
as a whole. When Norteño and Sureño gang members commit acts of violence against
each other, it is common for them to yell out their gang name or specific subset
affiliation. Declaring an affiliation serves several functions: it intimidates and sends a
message to rival gang members, it motivates fellow gang members, and it informs the
public that a violent gang was responsible and no one should cooperate with police.
Gang members use clothing, tattoos, and hand signs to identify themselves with a
specific gang. Sureños claim the color blue and the number 13. They display the number
13 to show allegiance to the “Mexican Mafia,” because “M” is the 13th letter of the
alphabet. It is common for Sureños to have tattoos of some combination of the number
13, the roman numeral XIII, the Mayan numeral for 13, the word “Sureño,” and three
dots. Those tattoos can signify that a member is loyal to the gang, that a member has
joined or been “jumped in” to a gang, or that a member has earned the tattoo by “putting
in work” for the gang through the commission of crimes. Sureños dress more
traditionally than Norteños. They often have shaved heads and wear checkered shirts and
creased Dickies brand pants.
8.
Sureños have a specific set of “unwritten rules” or “guidelines” that are supposed
to govern their interactions with fellow gang members, the community, rival gang
members, and law enforcement. Sureños are supposed to attack any rival gang member
they see and are supposed to cover any rival graffiti in their territory. They are not
supposed to talk to or cooperate with police or speak ill of fellow gang members.
However, Sureños “break th[o]se guidelines all the time.”
Norteños dress more modernly than Sureños, often wearing “Guc[c]i” attire and
“snap back hats.” Norteños identify themselves with the color red, the number 14, and
the “Nuelga bird”3 or “Farmero bird” associated with the United Farmworkers Union.
The number 14 is significant to Norteños because “N” is the 14th letter of the alphabet,
which they associate both with the Spanish word “Norte” and the “Nuestra Familia”
gang. Norteños regularly get tattoos displaying the number 14, a single dot on the right
hand and four dots on the left hand, the Mayan numeral for the number 14, the word
“Norte,” and the name of their gang subset.
Norteños also have rules that govern their conduct. When a Norteño gang member
sees a Sureño gang member, their rules require that he either attack the Sureño or seek
permission from a higher-up Norteño or “squad leader” to attack the Sureño. However,
Norteños do not always seek permission before committing an attack against rival
Sureños.
In 2017, between 300 and 400 Sureños lived in Kings County. Approximately
70 or 80 of those Sureños belonged to the “Vickie’s Town” subset. However, Norteños
controlled most of the gang-occupied areas and outnumbered Sureños by three- or four-
3 The record reflects that Torres used the word “Nuelga.” “Nuelga” is probably a
phonetic misspelling of the word “Huelga.” (See, e.g., People v. Arce (2020) 47
Cal.App.5th 700, 708 [the “Huelga bird” is a symbol associated with the Norteños];
People v. Lopez (2020) 46 Cal.App.5th 505, 526 [same]; People v. Pettie (2017) 16
Cal.App.5th 23, 37 [same].)
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to-one. Two primary Norteño subsets existed in Corcoran: the “North Side Locos” and
the “Vario Perry Heights.” The Norteño subsets all “g[o]t along and … work[ed]
together.” Although each claimed specific territories within the city of Corcoran, they all
collectively “claim[ed] all of Corcoran as their territory.”
Patino’s Gang-Related Activity
In 2015, Torres encountered Patino in Corcoran. Patino told Torres he was from
Stanislaus County and was on probation. Torres suspected that Patino was a Sureño gang
member based on his attire and how he carried himself. During Torres’s first encounter
with Patino, he had no visible tattoos showing gang affiliation. When Torres ended the
interaction with Patino, he told Patino that he suspected him of being a Sureño, advised
him that Corcoran was a “Norteño dominated city,” and told him to “lay low” and “stay
out of trouble.”
Stanislaus County Sheriff’s Detective Robert Huffman investigated gang-related
crimes in Patterson and had interactions with hundreds of gang members, including the
“Garza Park Cholos” Sureño subset gang members who claimed the east side of
Patterson. The Garza Park Cholos routinely committed crimes in Patterson with
members of Sureño subsets from elsewhere in California.
In 2016, Stanislaus County Sheriff’s Deputy Eric Peterson initiated a traffic stop
near Garza Park in Patterson. Patino opened the rear passenger door of the vehicle and
fled with an open container of alcohol. Other gang members, including one of the
founding members of the Garza Park Cholos gang, were in the vehicle. Huffman
explained that Patino ran from the vehicle with the alcohol to try to impress the higher-
ranking gang members by diverting attention and criminal liability from them.
In the same year, Stanislaus County Sheriff’s Deputy Kyle Briggs encountered
Patino at the north steps of Garza Park. Patino was caught with fresh blue paint on his
hands and was near blue gang-related graffiti of Patino’s gang moniker, “Demon,” as
well as “13,” “SUR 13,” “SUR,” and “GCP 209.”
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Also in 2016, Stanislaus County Sheriff’s Deputy Wade Carr found Patino in
Garza Park spray painting gang-related graffiti. By spray painting gang graffiti, Patino
was claiming the territory for the Garza Park Cholos Sureño gang.
In 2017, Patino approached J.M., a non-gang member who was wearing a red shirt
and red and white shoes, at a liquor store. Patino asked J.M. where he was from and if he
“banged.” J.M. told Patino he was not a gang member. Patino then lifted his shirt and
showed J.M. the handle of a knife. Huffman explained that Sureño gang members
perceive anyone wearing red around them as a sign of disrespect and a sign that the
person may be a rival Norteño gang member. In such situations, Sureño gang members
are required by the rules of their gang to intimidate or harm the potential rival gang
member. Doing so elevates the Sureño gang member’s status within the gang.
In a separate incident, Newman Police Officer Ashley Williams encountered
Patino and three other men in Pioneer Park, about 12 miles south of Garza Park. As
officers approached, Patino took a knife out of his pants and “put it in the ground.”
Patino and the three other men were all wearing clothing common to Sureños. One of the
other men was a known Sureño gang member.
After Patino was arrested in relation to this case, he asked Torres if he was going
to be housed in the jail “with the homies right away.” Patino clarified that he was “a
southsider” and wanted to be housed with the other southsiders.
While Patino was in custody, and housed in a jail pod with Sureño gang members,
he and his cellmate physically assaulted another Sureño gang member housed in their
pod. The attack was a “removal”—a punishment by the Mexican Mafia for any number
of violations of their rules, signaling that the removed gang member was no longer
welcome with the other Sureño gang members.
On the date of trial, Patino had three dots tattooed on his left cheek, one dot
tattooed on his right hand and three dots tattooed on his left hand, “E” tattooed on his
right hand and “S” tattooed on his left hand, “1” tattooed on his right shin and “3”
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tattooed on his left shin, and an apparently incomplete tattoo of “GAR” across his chest.
According to Huffman, the “ES” meant “east side” and probably referred to “East Side
Paton” Sureños; the dots and the “1” and “3” referred to “13,” a number claimed by the
Sureños; and the “GAR” probably referred to the Garza Park Cholos. Those tattoos were
all associated with the Sureño gang. Patino also admitted he had a gang moniker—
“[D]emon.”
Based on all of the gang activities, associations, attire, and tattoos, Huffman
opined that Patino was an active gang member. Huffman further opined that if Patino
killed a rival gang member, it would support Huffman’s conclusion that Patino was an
active gang member. Huffman and Torres opined that if an individual in Patino’s
position, with Patino’s tattoos, who moved from Stanislaus County to Kings County did
kill a rival gang member after yelling “south side,” that killing would benefit the Garza
Park Cholos Sureño subset, the Vickie’s Town Sureño subset, and the Sureños generally.
Rivas’s Gang-Related Activity
Torres interacted with Rivas three or four times before his death. Rivas was a
member of the “Varrio Perry Heights” Norteños. His moniker was “Savage.” At the
time of his death, Rivas had been a Norteño gang member for six or seven years. Torres
testified that Rivas may have been a highly enough ranked Norteño gang member that he
was not required to seek permission before attacking Patino.
Defense Case
Patino testified that he was a Sureño gang member. He became a Sureño in
Stanislaus County, in the city of Newman, at the age of 17. He joined the Sureño gang
for protection because groups of two to four Norteño gang members repeatedly
confronted him after school even though he was not gang affiliated. Patino decided to
leave Stanislaus County in favor of Corcoran because he was getting into trouble and
committing crimes. Patino acknowledged that the prosecutor’s evidence regarding his
prior offenses was “mainly true.”
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When Patino arrived in Corcoran, about two-and-a-half months before the
shooting, he had no interaction with Sureño gang members and wanted to leave the
“gangster life[]style” behind. Although he wanted to make a new start in Corcoran, when
he made trips to the store, he was recognized by Norteño gang members who saw his
tattoos identifying him as a Sureño gang member. In his first month in Corcoran, he “had
some altercations with some Norteños” during which he was threatened. After about a
month in Corcoran, he obtained a gun for protection. He then put images of the gun on
Facebook to warn others that he “ha[d] a weapon” and to stay away.
On the day of the shooting, Patino encountered Rivas at a liquor store about a
quarter of a mile south of the intersection where the shooting took place. As Patino
exited the store, Rivas stood in front of the store and “mad dogged” him. Patino
described “mad dogging” as a “challenge with your eyes.” Patino ignored Rivas and
walked across the street to the sidewalk and away from Rivas. As Patino walked away,
he noticed that Rivas was following him. When Patino looked at Rivas, Rivas shouted,
“What is up[,] scrap[?]” Patino described “Scrap” or “Scrapa” as “a derogatory word
Northerners use [to refer to] Sureños.” When Rivas called out, he was holding what
Patino believed to be an icepick but was actually a modified screwdriver. Patino
responded by telling Rivas that he was just going home, asking what he wanted, and
pulling back his shirt to show his gun. Rivas put the screwdriver away and Patino
believed that the interaction was over.
As Patino walked away from Rivas on Letts Avenue toward Orange Avenue,
Rivas called out again and told Patino that they were going to fight. Patino again
responded that he did not want to fight, and he just wanted to go home. When Patino told
Rivas that he did not want to fight, Rivas “pulled out the screwdriver once more,” started
calling Patino names, and continued to advance on him. Patino continued walking north
and crossed to the north side of Orange Avenue. He stopped at the corner because his
grandmother’s house was nearby and he did not want Rivas following him home. Patino
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told Rivas, “Man, you got to stop following me. I am not going to fight[.] [Y]ou need to
leave me alone.” Rivas continued to shout at Patino and move toward him. At no point
was Patino “representing a hood,” “yelling south side,” or “calling [Rivas] names.”
Rivas began to run toward Patino. When Rivas was less than 20 feet from him,
Patino removed his gun from under his shirt, dropped to one knee, pointed the gun at
Rivas, and fired three times. Rivas did not stop running toward Patino until after Patino
fired all three shots. After Patino fired all three shots, Rivas began to run away, and
Patino ran home. Patino never heard Rivas yell, “You missed[,] puto.”
Patino “was not trying to kill [Rivas]” when he fired. Patino was “very
frightened” and “feared for [his] life.” Rivas “seemed determined … to inflict harm on
[Patino]” based on “how long he followed [Patino],” his constant yelling at Patino, and
the threats he made to Patino. Patino believed Rivas “was going to stab [him and]
possibly kill [him].”
When Patino arrived home at his grandmother’s house, he hid the gun because he
did not want to be caught with it. He then lied to law enforcement when asked about his
involvement in the shooting because he did not think law enforcement would believe him
if he told the truth.
Patino acknowledged that an active Sureño gang member benefits the Sureño gang
by killing a Norteño gang member. He acknowledged that when he shot Rivas, Rivas
was not close enough to hurt him and might have been turning to run away.
Prosecution’s Rebuttal
Torres testified that after hearing Patino’s testimony, it remained his opinion that
the shooting benefitted the Sureño gang.
DISCUSSION
I. Gang Expert Testimony
Patino contends that the trial court erred when it permitted Deputy Torres to
comment on the evidence, and opine that Patino acted to benefit the gang and did not act
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to defend himself. The People respond that Torres did not improperly comment on
Patino’s “mental state, his specific intent, or the validity of any defense.” Rather, the
People argue, he properly assumed that a hypothetical crime was committed and
confirmed that Patino’s testimony did not change his opinion that “the hypothetical
‘subject’ [of his expert opinion] was representing his gang and wanted everyone to know
that a member of the Sureño gang was committing the crime.” In the alternative, the
People contend “any error was harmless because it is not reasonably probable [Patino]
would have achieved a more favorable result, had the court excluded the challenged
testimony.”
We find that the trial court erred in permitting Torres to opine directly on whether
Patino committed the offense to benefit a gang, but we conclude that the error was
harmless.
A. Additional Background
Torres testified repeatedly throughout the prosecutor’s case-in-chief on several
topics, including Corcoran gang culture, his prior interaction with Patino, his interview of
witnesses, Rivas’s gang activities, and his own opinion regarding whether the shooting
benefitted the Sureño gang and the Vickie’s Town subset. As to whether the shooting
benefitted the gang, the prosecutor asked:
“So I am going to ask you to assume that the facts that we have
heard during this trial are true. Specifically[,] that we heard evidence that
two men are observed in the City of Corcoran, which is predominantly a
Norteño dominated turf. That one of the two men has three dots under his
eye, G-A-R on his chest. E-S on his hands. And that him and another male
are arguing. At some point they are across the street from each other at
Orange and Letts Avenue. The male with those tattoos, the E-S and the G-
A-R pulls out a [.]22[-]caliber rifle, fires the rifle once. The other male
who is 50 feet away holding no items, defensive items in his hands says,
‘You missed puto, try again mother f[*****].’ Then the Sureño backs up
even further, takes a knee, aims the sawed-off rifle, the rifle. At least one
bullet strikes the Norteño as he is running away, goes through his shoulder,
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through his lungs, through his heart, and he bleeds to death. In your
opinion would that crime benefit the Vickie’s Town Sureños?”
Torres answered, “Yes, it would.”
The prosecutor also asked Torres whether the crime would benefit the Garza Park
Cholos Sureño subset and the Sureños gang as a whole, and received the same
affirmative answer.
After the defense case, which consisted only of Patino’s testimony, the prosecutor
recalled Torres on rebuttal to ask whether Patino’s testimony changed his opinion that the
shooting benefitted the gang. The following is the exchange, in full:
“[PROSECUTOR]: Now based on the additional information you
just heard from [Patino], has your opinion as to whether this crime
benefited the Sureño criminal street gang?
“[TORRES]: No.
“[PROSECUTOR]: And could you explain?
“[TORRES]: Well, he said it himself it benefits the criminal street
gang. Not only that, but obviously they are making the defense that it was
self-defense. Due to the distance, and due to the fact that the subject was
yelling out south side, again, he is representing his gang, and he wants
everyone to know that it is south side that is doing this.
“[DEFENSE COUNSEL]: Your Honor, I am going to object to this
opinion. The officer said due to the distance and so on, they[] are varying.
“[PROSECUTOR]: Objection, speaking objection.
“[DEFENSE COUNSEL]: I don’t think he can make an opinion of
that nature.
“[PROSECUTOR]: Move to strike his comment.
“THE COURT: There is an objection as to opinion testimony. He is
giving an opinion as to whether or not the actions are for the benefit of the
gang. He is not giving an opinion as to what is in the mind of [Patino] at
this point in time. The answer stands.
“[PROSECUTOR]: Was your answer completed, or were you still
answering?
16.
“[TORRES]: No, it is just him yelling out south side. Again, it is
going to—eliminating a rival, it is going to benefit the gang. Now I totally
lost my train of thought before all that happened. But, yeah, it doesn’t
change my opinion.
[PROSECUTOR]: Was anything else that was said by [Patino]
significant to you in terms of whether this is for the benefit of the gang?
“[TORRES]: No, it does not change my opinion.”
The remainder of Torres’s rebuttal testimony was unrelated to Patino’s defenses
and his opinion that the shooting benefitted the Sureño gang.
B. Standard of Review
We review the trial court’s admission of evidence, including expert testimony, for
abuse of discretion. (People v. Flores (2020) 9 Cal.5th 371, 397; People v. Lucas (2014)
60 Cal.4th 153, 226, disapproved on another ground in People v. Romero and Self (2015)
62 Cal.4th 1, 53, fn. 19.) “ ‘A court abuses its discretion when its ruling “falls outside the
bounds of reason.” ’ ” (People v. Catlin (2001) 26 Cal.4th 81, 122; accord People v.
Rodrigues (1994) 8 Cal.4th 1060, 1124.) Abuse of discretion is established by
“ ‘ “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. Bryant,
Smith and Wheeler (2014) 60 Cal.4th 335, 390.)
C. Analysis
Patino contends that, in his rebuttal testimony, Torres improperly commented on
Patino’s intent and his defense. The People respond that Torres “merely explained that,
based on the facts presented to him, he believed the hypothetical ‘subject’ was
representing his gang and wanted everyone to know that a member of the Sureño gang
was committing the crime.”
California law permits a person with “special knowledge, skill, experience,
training, or education” in a particular field to qualify as an expert witness. (Evid. Code,
§ 720.) Qualified experts may offer opinion testimony if the subject matter is
17.
“sufficiently beyond common experience” such that the expert’s opinion “would assist
the trier of fact.” (Evid. Code, § 801, subd. (a).) In general, “ ‘[t]he subject matter of the
culture and habits of criminal street gangs … meets this criterion.’ ” (People v. Vang
(2011) 52 Cal.4th 1038, 1044 (Vang).) Such testimony can include “whether and how a
crime was committed to benefit or promote a gang.” (People v. Killebrew (2002) 103
Cal.App.4th 644, 657 (Killebrew), disapproved on other grounds in Vang, at pp. 1044-
1048.)
However, no witness may “ ‘express an opinion on a defendant’s guilt.’ ” (Vang,
supra, 52 Cal.4th at p. 1048.) An expert witness is no exception. Expert witness
testimony may “not be admitted at trial … to show a defendant’s criminal disposition or
bad character as a means of creating an inference the defendant committed the charged
offense” (People v. Sanchez (1997) 58 Cal.App.4th 1435, 1449) or “ ‘to prove intent or
culpability’ ” (People v. Memory (2010) 182 Cal.App.4th 835, 859). Nor may an expert
give an opinion on “whether a witness is telling the truth.” (People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 82 (Coffman and Marlow).)
An expert opinion may, however, be rendered in the form of responses to
hypothetical questions that ask the expert to assume the truth of certain facts rooted in the
evidence. (People v. Richardson (2008) 43 Cal.4th 959, 1008; see Vang, supra, 52
Cal.4th at p. 1046.)4 In posing hypothetical questions, a prosecutor is not required to
disguise that the question is based on the evidence at bar. (Vang, at pp. 1047-1048.) An
expert witness’s answering a hypothetical question that tracks the evidence “is not
tantamount to expressing an opinion as to defendant’s guilt.” (People v. Ward (2005) 36
4 As discussed in more detail below, our Supreme Court in Vang did not foreclose
the possibility that in some situations a gang expert may testify directly—in other words,
not through a hypothetical question—regarding whether the charged crime benefitted a
gang. (See Vang, supra, 52 Cal.4th at p. 1048, fn. 4.)
18.
Cal.4th 186, 210.) Indeed, if a hypothetical question posed is not based on the evidence,
the answer is of no assistance to the jury. (Vang, at p. 1044.)
In Killebrew, supra, 103 Cal.App.4th 644, the gang expert testified that each of the
specific gang members in a caravan of three cars knew there was a gun in two of the cars
and jointly possessed the guns for protection. (Id. at p. 658.) The Court of Appeal held
that a gang expert is not permitted to testify to a particular defendant’s “subjective
knowledge and intent” because those “issues [are] properly reserved [for] the trier of
fact.” (Ibid.)
In Vang, the defendant argued that Killebrew precluded use of hypothetical
questions that too closely resembled the facts of the case at bar regarding whether a crime
benefitted a gang because such questions would impermissibly elicit comment on the
knowledge or intent of the defendant on trial. (Vang, supra, 52 Cal.4th at p. 1044;
Killebrew, supra, 103 Cal.App.4th at p. 658.) Our Supreme Court rejected that argument.
(Vang, at pp. 1046-1047.) In both Vang and People v. Gonzalez (2006) 38 Cal.4th 932(Gonzalez), where the prosecutors asked hypothetical questions regarding whether a
hypothetical crime was gang related, our Supreme Court read Killebrew only for the
proposition that a gang expert cannot offer a direct opinion on “the knowledge or intent
of a [particular] defendant on trial.” (Gonzalez, at p. 946; accord, Vang, at pp. 1048-
1049.) In other words, Gonzalez and Vang concluded that Killebrew permitted testimony
through hypothetical questions about what a hypothetical subject may have thought or
intended, and foreclosed only direct testimony about what a particular defendant on trial
may have thought or intended. (Vang, at p. 1047 [“It would be incorrect to
read Killebrew as barring the questioning of expert witnesses through the use of
hypothetical questions regarding hypothetical persons.… [U]se of hypothetical questions
is proper.” (italics omitted)]; Gonzalez, at p. 946, fn. 3; Killebrew, at p. 658.)
After explaining that Killebrew did not apply to opinion testimony in response to
hypothetical questions, Vang and Gonzalez both left open the question of whether, in
19.
some circumstances, a gang expert is permitted to opine directly regarding a specific
defendant and the evidence of the case. (Vang, supra, 52 Cal.4th at pp. 1048-1049 &
1048, fn. 4; Gonzalez, supra, 38 Cal.4th at pp. 946-947, fn. 3.) Vang explained that, to
the extent Killebrew was “correct in prohibiting expert testimony regarding whether the
specific defendants acted for a gang reason,” it was because such an opinion would
ordinarily be “ ‘ “of no assistance to the trier of fact.” ’ ” (Vang, at p. 1048.) Vang
“assume[d] … the expert could not properly have testified about the defendants
themselves,” but then cited with approval People v. Valdez (1997) 58 Cal.App.4th 494 at
page 507 (Valdez), for the proposition that, “in some circumstances, expert testimony
regarding the specific defendant[] might be proper” because it would be helpful to the
trier of fact. (Vang, at p. 1048, fn. 4; but see People v. Ewing (2016) 244 Cal.App.4th
359, 382 (Ewing) [“An expert may not testify whether a specific defendant committed an
offense for gang purposes.”].)
In Valdez, members of different Norteño subsets, who were occasionally rivals,
committed a crime together against a Sureño gang member. (Valdez, supra, 58
Cal.App.4th at pp. 508–509.) The gang expert explained how “such a diverse group …
could have been acting for the benefit of a street gang and whether the participants were
doing so.” (Id. at pp. 508-509, italics added.) The latter part of the opinion was direct,
non-hypothetical testimony regarding the crimes charged against the specific defendants
and whether the “participants acted for the benefit of each and every gang represented.”
(Id. at pp. 503-504, 509.) However, Valdez never addressed the fact that the questions to
the gang expert were not asked in hypothetical form. Valdez merely concluded that the
subject matter of the testimony was proper. (Id. at pp. 508-509.) The Court of Appeal
explained that the content of those “matters [was] far beyond the common experience of
the jury and justified expert testimony.” (Ibid.) An ordinary juror does not understand
gang culture and how benefitting one subset of a gang may also benefit another, so those
20.
topics may be the appropriate subject matter of expert testimony. (See Vang, supra, 52
Cal.4th at p. 1044; Valdez, at pp. 508-509.)
After citing Valdez with approval, the Vang court explained that the gang expert in
the case before it could “not testify directly [regarding] whether [any of the defendants]
committed the [charged crime] for gang purposes.” (Vang, supra, 52 Cal.4th at p. 1048.)
Our Supreme Court explained that the gang expert was precluded from doing so because
he “had no personal knowledge whether any of the defendants assaulted [the victim] and,
if so, how or why; he was not at the scene.”5 (Id. at p. 1048.) For that reason, “[t]he jury
was as competent as the expert to weigh the evidence and determine what the facts were,
including whether the defendants committed the assault.” (Ibid.)
Here, Patino contends that Torres improperly commented on his intent and his
defense in rebuttal. The People contend that, in his rebuttal testimony, Torres “merely
explained that, based on the facts presented to him, he believed the hypothetical ‘subject’
was representing his gang and wanted everyone to know that a member of the Sureño
gang was committing the crime.” We find that Torres’s testimony in rebuttal was likely
understood by the jury to have been direct, non-hypothetical testimony about Patino that
commented on the veracity of his testimony.
In his rebuttal case, the prosecutor did not reframe Patino’s testimony as
hypothetical facts. He asked Torres whether, “based on the additional information … just
heard from [Patino],” he had changed his opinion that “this crime benefited the Sureño
criminal street gang.” The prosecutor’s question appears to have called for testimony
regarding whether Patino’s charged crime benefitted the gang. Based on Torres’s
answer, it appears that his opinion may have been based in part on Patino and in part on a
5 In contrast, in Valdez, the court was presented with defense counsel’s objection
that the expert had no personal knowledge regarding the offense, but the court found
whether the expert had personal knowledge regarding the offense irrelevant to whether he
could testify to defendant’s intent. (Valdez, supra, 58 Cal.App.4th at p. 505.)
21.
hypothetical subject in Patino’s position. Torres began answering by noting Patino “said
it himself[;] [the killing] benefits the criminal street gang. Not only that, but obviously
they are making the defense that it was self-defense.” It is difficult to read that portion of
the response as anything other than a direct comment, based on Patino’s testimony, that
Patino’s crime benefitted the gang. However, Torres then immediately changed the topic
of his opinion from Patino to “the subject”: “Due to the distance, and due to the fact that
the subject was yelling out south side, again, he is representing his gang, and he wants
everyone to know that it is south side that is doing this.” (Italics added.) Yet, insofar as
Torres intended to respond as though he had been posed a hypothetical question, he
seems to have assumed that Patino’s testimony was false. Despite Patino’s testimony that
he “wasn’t representing a hood, [and] wasn’t yelling south side or nothing like that,”
Torres assumed the opposite. (Italics added.) Torres’s answer suggested that the reason
he did not change his opinion that the crime benefitted the gang was that he disbelieved
Patino’s testimony. This reading is consistent with the prosecutor’s follow-up question:
whether “anything else that was said by [Patino] [was] significant to [Torres] in terms of
whether this is for the benefit of the gang[.]” Torres answered “No, it does not change
my opinion.” Again, the question was not framed in the hypothetical, and therefore a
jury could reasonably have understood Torres’s answer to mean he still believed that
Patino shot Rivas for the benefit of the gang because he did not believe Patino’s
testimony that he was not “representing a hood” or “yelling south side.”
As noted, to the extent it is ever permissible for a gang expert to directly testify
regarding whether a specific defendant gang member committed a crime for the benefit
of a gang, such testimony should only be admitted where it may be unclear to the lay
person how the crime might benefit a gang. (Valdez, supra, 58 Cal.App.4th at pp. 508-
509; Vang, supra, 52 Cal.4th at p. 1048, fn. 4.) In this case, the prosecutor asked Torres
in his case-in-chief to explain how the crime may have benefitted multiple gangs—the
Garza Park Cholos Sureño subset, the Vickie’s Town Sureño subset, and the Sureño gang
22.
generally. At that point, allowing direct testimony on how the crime benefitted each gang
may have been consistent with Valdez, as endorsed by our Supreme Court in Vang.
(Valdez, at pp. 508-509; Vang, supra, 54 Cal.4th at p. 1048, fn. 4; accord People v.
Williams (2009) 170 Cal.App.4th 587, 621.) However, the prosecutor’s questions were
framed as hypothetical questions and were therefore clearly permitted by Vang. (Vang, at
p. 1047.) In contrast, the questions and answers presented during the People’s rebuttal
case appear to have been direct, non-hypothetical questions that related to whether
Patino’s assumed crime benefitted “the gang” (rather than each of the previously
identified gangs). The subject matter of the rebuttal testimony was not so removed from
the common experience of the jury as to require explanation through direct expert
testimony. (See Valdez, at pp. 508-509.)
Further, like the gang expert in Vang, Torres had no personal knowledge regarding
if, how, or why the crime took place because he was not at the scene when it happened.
(Vang, supra, 54 Cal.4th at p. 1048.) Despite Torres’s lack of personal knowledge and
the prosecutor’s asking Torres whether the defendant’s testimony affected his opinion,
Torres offered an opinion that assumed facts directly contrary to Patino’s testimony. The
jury could reasonably have understood Torres’s opinion to mean he did not believe
Patino’s testimony.
The trial court erred by allowing those questions to be asked and answered, in at
least partially direct, non-hypothetical form. (Vang, supra, 54 Cal.4th at p. 1048; Ewing,
supra, 244 Cal.App.4th at p. 382 [“asking [the prosecution’s gang expert] whether
defendant specifically committed the alleged crimes for the benefit of the gang was
improper”].)
D. Harmless Error
The People contend that any error was harmless and should be judged under the
standard of People v. Watson (1956) 46 Cal.2d 818 (Watson) because the error involved
erroneous admission of evidence related to defendant’s guilt. (Coffman and Marlow,
23.
supra, 34 Cal.4th at p. 76.) Watson asks whether “it is reasonably probable that a result
more favorable to the appealing party would have been reached in the absence of the
error.” (Watson, at p. 836.) Patino contends that the error was prejudicial and that the
harmless beyond a reasonable doubt standard of Chapman v. California (1967) 386 U.S.
18 (Chapman) applies because the error affected his federal constitutional rights.
Chapman asks “whether the guilty verdict actually rendered in this trial was surely
unattributable to the error.” (Sullivan v. Louisiana (1993) 508 U.S. 275, 279, italics
omitted.) “Thus, to say that [the error] … did not contribute to the verdict is to make a
judgment about the significance of the [error] to reasonable jurors, when measured
against the other evidence considered by those jurors independently of the [error].”
(Yates v. Evatt (1991) 500 U.S. 391, 403-404, overruled on other grounds by Estelle v.
McGuire (1991) 502 U.S. 62, 72, fn. 4.) The People are correct both in the standard that
applies and in the harmlessness of the error. (People v. Prieto (2003) 30 Cal.4th 226, 247
[“The erroneous admission of expert testimony only warrants reversal if ‘it is reasonably
probable that a result more favorable to the appealing party would have been reached in
the absence of the error.’ ”]; Coffman and Marlow, supra, 34 Cal.4th at p. 76 [claim of
inadmissible opinion testimony on issue of guilt is “one of erroneous admission of
evidence, subject to the standard of review for claims of state law error”]; People v.
Samaniego (2009) 172 Cal.App.4th 1148, 1179-1180.) But, even under the heightened
harmless beyond a reasonable doubt standard of Chapman, we would conclude the error
was harmless because Torres had already offered essentially the same opinion through
proper hypothetical questions, and the evidence was overwhelming that Patino acted to
benefit the gang and not to defend himself.
First, as noted above, Torres opined during the prosecutor’s case-in-chief that a
gang member in Patino’s position would have benefitted the Vickie’s Town Sureño
subset, Garza Park Cholos Sureño subset, and the Sureño gang generally by killing a
Norteño gang member. The only new element of Torres’s opinion offered in the
24.
prosecutor’s rebuttal case was Torres’s implied opinion that he did not believe Patino’s
testimony regarding his claim of self-defense, his not having yelled his gang affiliation at
Rivas, and perhaps the distance between Patino and Rivas. Torres’s testimony suggesting
his opinion that Patino did not act in self-defense was very brief and the prosecutor did
not repeat that portion of Torres’s testimony to the jury in his closing argument. (See
People v. Flores (2016) 2 Cal.App.5th 855, 881 [considering whether the prosecutor
emphasized an erroneous legal theory in closing argument in determining whether
introduction of the theory was harmless error under Chapman]; People v. Leonard (2014)
228 Cal.App.4th 465, 493 [finding the trial court’s admission of an expert’s testimony
that the defendant was a specific type of pimp was harmless error given the brief
testimony and overwhelming evidence against the defendant].)
Next, the evidence that Patino acted to benefit the gang and not to defend himself
was overwhelming. One witness, R.R., heard Patino say “something about south side” to
Rivas in response to Rivas “saying Norteño this, Norteño that” before Patino fired the
weapon. Patino admitted during cross-examination that he was wearing gang colors, that
he was an active gang member, and that by killing Rivas he benefitted the Sureño gang.
No witness saw Rivas with any kind of weapon in his hand and the screwdriver was
found in Rivas’s pocket when he was searched by law enforcement. No witness saw
Rivas cross the street toward Patino or come closer than about 45 feet from Patino when
he was shot. By the time Patino fired the first shot, Rivas was backing away from Patino.
Then, by the time Patino fired the second and third shots, Rivas was running away from
Patino.
Patino admitted that Rivas was at least 15 feet away from him and that he was not
in immediate danger from Rivas when he shot Rivas. This testimony alone was sufficient
for the jury to find that Patino did not act in self-defense. (People v. Humphrey (1996) 13
Cal.4th 1073, 1082 (Humphrey); People v Saavedra (2007) 156 Cal.App.4th 561, 568
[“self-defense operates as a defense only when the threat of bodily harm is immediate and
25.
present; fear of harm even in the near future is insufficient”].) Patino further
acknowledged that Rivas could not have been running directly at him when he fired the
fatal shot based on the trajectory of the bullet, penetrating Rivas’s right shoulder and
eventually lodging just below the skin on the left side of his chest. Specifically, when
asked “why is it that the bullet went through [Rivas’s] shoulder if he was coming right at
you” Patino answered, “I can only imagine that he turned.” This evidence also supported
the conclusion that Patino did not act in self-defense.
Moreover, the jury had good reason to find that Patino’s testimony was not
credible. Patino admitted that he repeatedly lied to law enforcement about being
involved in the crime, admitted that he lied on the stand, and admitted that he had
suffered prior felony convictions. (People v. Ayers (2005) 125 Cal.App.4th 988, 996
[considering the credibility of the defense in determining whether erroneous admission of
evidence was harmless error].)
The brief nature of the erroneously admitted opinion, the absence of any argument
regarding that opinion in closing argument, the overwhelming evidence that Patino did
not act in self-defense from all of the other witnesses, and Patino’s lack of credibility,
lead us to find beyond a reasonable doubt that the jury would have concluded, even
without Torres’s rebuttal testimony, that Patino shot Rivas to benefit the gang and not to
defend himself.
II. Self-Defense and Voluntary Manslaughter Amplifying Instructions
Patino argues that the trial court erred in failing to instruct the jury sua sponte that
they were required to consider Patino’s age, intelligence, and experience in applying the
“reasonable person standard[s]” for self-defense and heat of passion voluntary
manslaughter. Specifically, Patino first contends that the jury was required to consider
his age, intelligence, and experience in determining whether a reasonable person in his
position (1) would have perceived imminent danger and would have reasonably believed
deadly force was necessary to defend against the danger, and (2) would have reacted
26.
from passion rather than judgment for purposes of voluntary manslaughter.
Alternatively, if the court was not required to give the amplifying instructions sua sponte,
Patino argues that his counsel was ineffective in failing to request instruction on those
points of law.
The People respond (1) the instructions were correct, and the trial court had no sua
sponte duty to amplify those instructions, and (2) Patino forfeited any error by failing to
object. Alternatively, the People argue (3) any instructional error was harmless and any
deficient performance by defense counsel resulted in no prejudice because Patino’s youth
“and purported inexperience played no role in the case” and Patino’s testimony “lack[ed]
credibility.”
We agree with the People in all three respects.
A. Additional Background
The trial court instructed the jury on self-defense with CALCRIM No. 505, as
follows, in relevant part:
“The defendant acted in lawful self-defense if:
“1. The defendant reasonably believed that he was in imminent
danger of being killed or suffering great bodily injury;
“2. The defendant reasonably believed that the immediate use of
deadly force was necessary to defend against that danger;
“AND
“3. The defendant used no more force than was reasonably necessary
to defend against that danger. [¶] … [¶]
“When deciding whether the defendant’s beliefs were reasonable,
consider all the circumstances as they were known to and appeared to the
defendant and consider what a reasonable person in a similar situation with
similar knowledge would have believed. If the defendant’s beliefs were
reasonable, the danger does not need to have actually existed.”
(CALCRIM No. 505.)
27.
The trial court also instructed the jury on heat of passion theory of voluntary
manslaughter with CALCRIM No. 570, as follows, in relevant part:
“A killing that would otherwise be murder is reduced to voluntary
manslaughter if the defendant killed someone because of a sudden quarrel
or in the heat of passion.
“The defendant killed someone because of a sudden quarrel or in the
heat of passion if:
“1. The defendant was provoked;
“2. As a result of the provocation, the defendant acted rashly and
under the influence of intense emotion that obscured his reasoning or
judgment;
“AND
“3. The provocation would have caused a person of average
disposition to act rashly and without due deliberation, that is, from passion
rather than from judgment. [¶] … [¶]
“It is not enough that the defendant simply was provoked. The
defendant is not allowed to set up his own standard of conduct. In deciding
whether the provocation was sufficient, consider whether a person of
average disposition, in the same situation and knowing the same facts,
would have reacted from passion rather than from judgment.” (CALCRIM
No. 570.)
Defense counsel did not request amplification of either of these instructions, object
that the instructions were incomplete, or request additional instructions.
B. Standard of Review
“ ‘ “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. Breverman (1998)
19 Cal.4th 142, 154 (Breverman).) A trial court has a duty to instruct sua sponte on any
28.
defense “for which the record contains substantial evidence … unless the defense is
inconsistent with the defendant’s theory of the case.” (People v. Salas (2006) 37 Cal.4th
967, 982; see People v. Sedeno (1974) 10 Cal.3d 703, 716, disapproved on other grounds
in People v. Flannel (1979) 25 Cal.3d 668, 684-685, fn. 12.)
A trial court’s obligation to give general instructions sua sponte does not extend to
“pinpoint” instructions or optional paragraphs of instructions. (People v. Whalen (2013)
56 Cal.4th 1, 81-82 (Whalen), disapproved on other grounds in People v. Romero and
Self, supra, 62 Cal.4th at p. 44, fn. 17; People v. Lawley (2002) 27 Cal.4th 102, 160-161.)
“ ‘ “[W]hen a defendant presents evidence to attempt to negate or rebut the prosecution’s
proof of an element of the offense, a defendant is not presenting a special defense
invoking sua sponte instructional duties. While a court may well have a duty to give a
‘pinpoint’ instruction relating such evidence to the elements of the offense and to the
jury’s duty to acquit if the evidence produces a reasonable doubt, such ‘pinpoint’
instructions … must be given only upon request.” ’ ” (People v. Anderson (2011) 51
Cal.4th 989, 996-997.) “A party may not complain on appeal that an instruction correct
in law and responsive to the evidence was too general or incomplete unless the party has
requested appropriate clarifying or amplifying language.” (People v. Lang (1989) 49
Cal.3d 991, 1024 (Lang), abrogated on another ground in People v. Diaz (2015) 60
Cal.4th 1176, 1190.)
We review claims of instructional error de novo. (People v. Rivera (2019)
7 Cal.5th 306, 326 (Rivera).) In doing so, we are required to review the evidentiary
support for giving an instruction “ ‘in the light most favorable to the defendant’ [citation]
and … resolve doubts as to the sufficiency of the evidence to warrant instructions ‘ “in
favor of the accused.” ’ ” (People v. Wright (2015) 242 Cal.App.4th 1461, 1483
(Wright); see People v. Enriquez (1977) 19 Cal.3d 221, 228 (Enriquez), overruled on
other grounds in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3.) We consider the
failure to give an instruction in the context of the instructions as a whole and the trial
29.
record to determine whether there is a reasonable likelihood the jury applied the
instructions given in a manner inconsistent with the law. (See Rivera, at p. 326; People v.
Mason (2013) 218 Cal.App.4th 818, 825 (Mason); People v. Burgener (1986) 41 Cal.3d
505, 538 [“ ‘The absence of an essential element in one instruction may be supplied by
another or cured in light of the instructions as a whole’ ”], disapproved on another ground
in People v. Reyes (1998) 19 Cal.4th 743, 756; People v. Chavez (1985) 39 Cal.3d 823,
830 [“we must look to the entire charge, rather than merely one part, to determine
whether error occurred”].) In doing so, we assume that “ ‘ “jurors are intelligent persons
and capable of understanding and correlating all jury instructions which are
given.” ’ ” (People v. Castaneda (2011) 51 Cal.4th 1292, 1321.) “Where reasonably
possible, we interpret the instructions ‘ “to support the judgment rather than [to] defeat
it.” ’ ” (Mason, at p. 825.)
C. Forfeiture
As noted, a trial court is only required to instruct sua sponte on general principles
of law. (Breverman, supra, 19 Cal.4th at p. 154.) When a defendant fails to request an
amplifying instruction and fails to object to the instructions as given, the issue is forfeited
on appeal. (People v. Virgil (2011) 51 Cal.4th 1210, 1260 (Virgil); Lang, supra, 49
Cal.3d at p. 1024.) We may nevertheless review a forfeited claim of error if it affected a
defendant’s substantial rights. (§ 1259; People v. Delgado (2017) 2 Cal.5th 544, 572,
fn. 15.) A defendant’s substantial rights were affected if the error “resulted in a
miscarriage of justice, making it reasonably probable the defendant would have obtained
a more favorable result in the absence of error.” (People v. Andersen (1994) 26
Cal.App.4th 1241, 1249 (Andersen).) This analysis “necessarily requires an examination
of the merits of the claim—at least to the extent of ascertaining whether the asserted error
would result in prejudice if error it was.” (Ibid.)
Here, Patino forfeited his claim on appeal. The trial court correctly instructed on
the applicable general principles of law. The self-defense instruction directed the jury to
30.
consider “all the circumstances as they were known to and appeared to the defendant and
consider what a reasonable person in a similar situation with similar knowledge would
have believed.” (CALCRIM No. 505.) The heat of passion voluntary manslaughter
instruction similarly directed the jury to “consider whether a person of average
disposition, in the same situation and knowing the same facts [as defendant], would have
reacted from passion rather than from judgment.” (CALCRIM No. 570.) Those
instructions accurately and completely stated the governing principles. (Humphrey,
supra, 13 Cal.4th at pp. 1082-1083, 1087; People v. Jones (2014) 223 Cal.App.4th 995,
999-1001; People v. Hernandez (2010) 183 Cal.App.4th 1327, 1334-1335.) Thus, the
court had no sua sponte duty to amplify those instructions with further information not
“so closely and openly connected with the facts before the court as to come within the
court’s sua sponte instructional obligations.” (Coffman and Marlow, supra, 34 Cal.4th at
p. 101 [the trial court’s failure to inform the jury that it could consider the defendant’s
battered woman syndrome in assessing whether she reasonably perceived imminent harm
from the victim did not fall within the court’s sua sponte instruction obligation].) If
Patino desired amplification, he was required to request it or object when it was not
given. (Virgil, supra, 51 Cal.4th at p. 1260; Lang, supra, 49 Cal.3d at p. 1024.) This he
did not do.
Nevertheless, because Patino claims his substantial rights were affected by the trial
court’s failure to instruct with the amplification, we turn now to the merits of his claim.
(Andersen, supra, 26 Cal.App.4th at p. 1249.)
D. Sufficiency of the Instructions
Patino contends his substantial rights were affected because the self-defense and
heat of passion theory manslaughter instructions were incomplete in that they did not
include direction for the jury to consider his age, intelligence, and experience. We
disagree.
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To support his proposition, Patino relies primarily on authority related to
punishment of juvenile offenders. (E.g., Miller v. Alabama (2012) 567 U.S. 460 (Miller);
Graham v. Florida (2010) 560 U.S. 48 (Graham); Roper v. Simmons (2005) 543 U.S. 551(Roper).) Patino acknowledges that he was not a juvenile at the time of the offenses—he
was 22 years old—but argues that those cases are instructive. Specifically, he asks us to
take note that the Supreme Court has commented that, for a variety of reasons, juvenile
offenders’ youth renders them less culpable than mature adults. (Miller, at pp. 476-479
[the Eighth Amendment prohibits mandatory life without possibility of parole sentences
on juveniles convicted of homicide offenses]; Graham, at pp. 69-82 [the Eighth
Amendment categorically prohibits imposition of life without possibility of parole
sentences on juveniles convicted of non-homicide offenses]; Roper, at pp. 568-569 [the
Eighth Amendment prohibits imposition of the death penalty on juvenile offenders
because of their lack of maturity, susceptibility to negative influence, and
underdeveloped character].) Patino also directs us to section 3051, which makes youth
offender parole hearings available to “any prisoner who was 25 years of age or younger
… at the time of the controlling offense.” (§ 3051, subd. (a)(1).) As Patino points out,
the youth offender parole framework is premised upon the Legislature’s recognition of
the “diminished culpability of juveniles as compared to adults.” (§ 4801, subd. (c).)
Patino argues that, considering the judicial and legislative recognition that young
adults are less culpable for their actions than mature adults, “a young adult with [a]
developing brain should not be held to the same reasonable person standard as that of a
mature adult.” Patino is mistaken. As noted, Miller, Graham, and Roper, as well as
section 3051, all deal with punishment for juvenile offenders. They do not purport to
apply to the elements of an offense and we have found no case that extends them for such
a purpose.
Next, Patino notes that evidence of a defendant’s life experiences can be relevant
to show that a reasonable person in Patino’s position “would believe in the need to kill to
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prevent imminent harm.” (Humphrey, supra, 13 Cal.4th at p. 1087; accord People v.
Minifie (1996) 13 Cal.4th 1055, 1065 [“ ‘A person claiming self-defense is required to
“prove his own frame of mind,” and in so doing is “entitled to corroborate his testimony
that he was in fear for his life by proving the reasonableness of such fear.” ’ ”])
However, our Supreme Court has made clear that even when such evidence is admitted, a
court does not “replac[e] the reasonable ‘person’ standard” with, for instance, a
reasonable “ ‘battered woman’ ” standard” or “ ‘ “reasonable gang member” standard.’ ”
(Humphrey, at p. 1087.; accord People v. Sotelo-Urena (2016) 4 Cal.App.5th 732, 751-
752 (Sotelo-Urena) [admitting expert testimony regarding dangers associated with
chronic homelessness does not create a “reasonable homeless person” standard]; see
People v. Jefferson (2004) 119 Cal.App.4th 508, 519 [“a reasonable person is not one
who hears voices due to severe mental illness” but a “ ‘normal person’ ”].) “The jury
must consider defendant’s situation and knowledge, which makes the evidence relevant,
but the ultimate question is whether a reasonable person … would believe in the need to
kill to prevent imminent harm.” (Humphrey, at p. 1087, italics omitted; see People v.
Jefferson, at p. 519.) A defendant’s age, intelligence, and experience do not change the
applicable reasonable person standard.
Patino relies on People v. Mathews (1994) 25 Cal.App.4th 89 (Mathews), for the
proposition that a jury must be instructed to consider the defendant’s limitations in
deciding whether a reasonable person in the defendant’s position would have believed in
the need to use deadly force. In Mathews, the defendant was elderly and vision- and
hearing-impaired. (Id. at p. 94.) When officers executed a search warrant on his home,
the defendant brandished a shotgun at them. (Ibid.) At trial, he testified he did not hear
the verbal announcement and “had no idea that the intruders were police officers.” (Ibid.)
The defendant was denied an instruction that would have informed the jury that “[i]n
considering the self-defense issues, [it] must take into account any sensory impairment
the defendant had in determining how a reasonable person with such disabilities would
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have acted.” (Id. at pp. 98-99.) The appellate court concluded that the refusal to give the
pinpoint instruction was error because it made “no sense, either in law or logic, to hold
appellant to the standard of a reasonable person with normal eyesight and hearing.” (Id.
at p. 99.) The court explained that “[W]hat is ‘apparent’ to a reasonable person who can
see and hear is not ‘apparent’ to a person who is blind and hearing impaired.” (Id. at p.
100.) Accordingly, the Mathews court imported a rule of tort law and applied the
reasonable person standard of “a reasonable person with a similar physical disability.”
(Id. at p. 99.)
Mathews is of no assistance to Patino. Patino had no physical disability that
prevented him from seeing and hearing the circumstances that surrounded him. Again,
Patino’s age, intelligence, and experience do not change the applicable reasonable person
standard. (People v. Jefferson, supra, 119 Cal.App.4th at p. 519; see People v. Castillo
(1987) 193 Cal.App.3d 119, 124 [“[m]ental deprivation, in fact, never has been
considered an attribute of the reasonable man”].)
Patino’s reliance on Humphrey, People v. Smith (1907) 151 Cal. 619 (Smith), and
Sotelo-Urena is equally unavailing. (Humphrey, supra, 13 Cal.4th at p. 1087; Smith, at
pp. 626–628; Sotelo-Urena, supra, 4 Cal.App.5th at pp. 741-744.) In each of those cases,
the jury was instructed with similar self-defense instructions to those given here.
(Humphrey, at p. 1081 [regarding self-defense, “the jury was to consider what ‘would
appear to be necessary to a reasonable person in a similar situation and with similar
knowledge.’ ”]; Smith, at p. 628 [considering “what a reasonable man in the position of
the defendant would have done under the same conditions”]; Sotelo-Urena, at p. 745
[regarding self-defense, “the jury … was expressly instructed that, ‘In evaluating the
defendant’s beliefs, consider all the circumstances as they were known and appeared to
the defendant.’ (CALCRIM No. 571.) In other words, the jury was to evaluate
defendant’s belief in the need to use lethal force from his perspective.” (italics
omitted)].) However, each of the trial courts excluded relevant evidence regarding
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whether the defendant’s action was taken in reasonable self-defense. (Humphrey, at pp.
1084, 1087 [excluding some evidence of battered women’s syndrome]; Smith, at pp. 626–
628 [excluding evidence of the defendant’s weakened physical condition]; Sotelo-Urena,
at pp. 745-746 [excluding expert testimony on the impact of chronic homelessness on
threat perception].) The reviewing courts found error in the exclusion of evidence, not in
the “reasonable person” instruction given to the jury. (Humphrey, at pp. 1088-1089;6
Smith, at p. 627; Sotelo-Urena, at p. 752.) No such exclusion of evidence took place
here. Patino was not precluded from introducing evidence regarding his age, intelligence,
or experience to support his defense of self-defense.
The standard for heat of passion theory of manslaughter is equally unaffected by
defendant’s age, intelligence, and experience. In order for a killing that is otherwise
murder to be reduced to voluntary manslaughter because the defendant acted in the heat
of passion, the jury must determine that an “ ‘ “ordinary [person] of average
disposition” ’ ” in the same situation and knowing the same facts would act “ ‘ “rashly or
without due deliberation and reflection, and from this passion rather than from
judgment.” ’ ” (Breverman, supra, 19 Cal.4th at p. 163; see People v. Beltran (2013) 56
Cal.4th 935, 954 & fn. 14.) Even when a minor has advanced a heat of passion defense,
courts apply the “ordinary [person of] average disposition” standard, not an ordinary
minor standard. (In re Thomas C. (1986) 183 Cal.App.3d 786, 798, italics omitted.) A
particularly immature or inexperienced defendant is not permitted to “set up his own
standard of conduct.” (Ibid.) If an easily provoked defendant is actually provoked and
6 In Humphrey, a different instructional error arose regarding whether evidence of
battered women’s syndrome was relevant to both the defendant’s subjective perception of
danger and whether she acted reasonably. (Humphrey, 13 Cal.4th at pp. 1085-1086.)
That instructional error led to erroneous exclusion of evidence. (Id. at pp. 1088-1089.)
That issue does not affect the question before us.
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kills another, but a reasonable person of average disposition in his position would not be
provoked, the killing is murder, not manslaughter. (See ibid.)
We find no error in the self-defense and heat of passion instructions as given.
Accordingly, Patino’s substantial rights were not affected.
E. Harmless Error and Absence of Prejudice
The People argue that even if the claim was not forfeited and the trial court erred
in failing to sua sponte instruct the jury to consider Patino’s age, intelligence, and
experience, and even if defense counsel’s performance was deficient for failing to seek
such instruction, the error was harmless and counsel’s performance caused no prejudice.
We agree. Even if the instructions had been amplified to include instruction that the jury
must consider Patino’s age, intelligence, and experience, the outcome would not have
been different.
Patino argues we should review the prejudice of the alleged error under the
standard of Chapman, supra, 386 U.S. 18. An instructional error that “relieves the
prosecution of the burden of proving beyond a reasonable doubt each essential element of
the charged offense, or that improperly describes or omits an element of an offense”
requires Chapman harmless error review. (People v. Larsen (2012) 205 Cal.App.4th 810,
829.) However, because pinpoint instruction and amplification of an instruction merely
relate particular facts to legal issues in the case, the failure to give such an instruction is
reviewed for prejudice under the People v. Watson (1956) 46 Cal.2d 818 (Watson)
harmless error standard. (People v. Larsen, at p. 830.) Under Watson, reversal is
required only if “it is reasonably probable that a result more favorable to the appealing
party would have been reached in the absence of the error.” (Watson, at p. 836.)
Under either standard, any error in failing to amplify the self-defense instruction
was harmless here because the jury rejected both that Patino subjectively believed he
needed to defend himself with deadly force and that an objectively reasonable person in
Patino’s position would have felt the need to use deadly force to defend themself. The
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jury was instructed on imperfect self-defense with CALCRIM No. 571. In order for a
killing that is otherwise murder to be reduced to voluntary manslaughter, a jury must find
that the defendant “actually believed that he was in imminent danger of being killed or
suffering great bodily injury” and “actually believed that the immediate use of deadly
force was necessary to defend against the danger,” but “[a]t least one of those beliefs was
unreasonable.” (CALCRIM No. 571; see People v. Elmore (2014) 59 Cal.4th 121, 134.)
Here, the jury rejected Patino’s imperfect self-defense theory. The jury therefore
necessarily found that Patino did not actually believe (1) he was in imminent danger of
being killed or suffering great bodily injury, and/or (2) imminent use of deadly force was
necessary to defend against the danger. Because the jury concluded Patino did not
subjectively believe that he was in imminent danger and/or that imminent use of deadly
force was necessary, whether such a belief would have been reasonable for purposes of
perfect self-defense was irrelevant and, we conclude beyond a reasonable doubt, could
not have affected the outcome.
The failure to amplify both instructions was also harmless beyond a reasonable
doubt because no evidence was submitted to suggest that Patino’s age, intelligence, or
experiences caused him to perceive danger differently or act differently than a reasonable
person in the same situation. Indeed, defense counsel made no reference to Patino’s age,
intelligence, or experience at all in his closing argument. Accordingly, even if the trial
court erred in not instructing the jury to consider Patino’s age, intelligence, and
experience in determining whether he reasonably perceived a need to use deadly force in
self-defense and in determining whether a reasonable person of average disposition
would have been provoked to use deadly force, we conclude beyond a reasonable doubt
that Patino would have received no better outcome absent such error.
Because any instructional error was harmless beyond a reasonable doubt, Patino
suffered no prejudice from defense counsel’s failure to request amplification of the
instructions or object to the trial court’s failure to instruct sua sponte. (Coffman and
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Marlow, supra, 34 Cal.4th at p. 66; People v. Mateo (2016) 243 Cal.App.4th 1063,
1076.) We reject Patino’s ineffective assistance of counsel claim on that basis. (People
v. Johnson (1992) 3 Cal.4th 1183, 1227.)
III. General and Specific Intent Instructions
Patino contends the trial court’s removal of the definitions of specific and general
intent from CALCRIM No. 252 was reversable error because it lowered the prosecutor’s
burden of proof on murder, voluntary manslaughter, the alleged special circumstance, and
the firearm and gang allegations, all of which required proof of specific intent. The
People respond that Patino forfeited the argument by failing to request clarifying
language below. Additionally, the People argue, the trial court did not err because the
“other instructions adequately informed the jury regarding the requisite intents for each
crime and allegation.”
We agree with the People on both accounts.
A. Additional Background
The trial court instructed the jury with a modified version of CALCRIM No. 252:
“The crimes and/or other allegations charged in Count 1 [murder]
and 2 [possession of a firearm by a felon] require proof of the union or joint
operation of act and wrongful intent[.]
“The following crimes and allegations require general criminal
intent: Penal Code Section 29800[, subdivision] (a) (1)[.]
“The following crimes and allegations require[] a specific intent or
mental state: Penal Code Section 187[, subdivision] (a), [m]urder, the
lesser included offense of voluntarily manslaughter, and all enhancements
and the special allegation[.]” (See CALCRIM No. 252.)
Defense counsel did not request that the trial court instruct with the complete
version of CALCRIM No. 252 or object to the given instruction. The omitted portions of
CALCRIM No. 252 included definitions of general and specific intent, and direction for
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the jury to refer to the instructions on the specific crimes or allegations for the prohibited
act and any state of mind or mental state requirements. (CALCRIM No. 252.)
The trial court also instructed the jury on the charged crimes. On the murder
count, the court instructed the jury that “the People must prove that: [¶] 1. The defendant
committed an act that caused the death of another person; [¶] AND [¶] 2. When the
defendant acted, he had a state of mind called malice aforethought; [¶] AND [¶] 3. He
killed without lawful excuse or justification.” (CALCRIM No. 520.) The court further
instructed on the difference between express and implied malice for purposes of the
murder count. (Ibid.) On the possession of a firearm by a felon count, the trial court
instructed the jury that “the People must prove that: [¶] 1. The defendant possessed a
firearm; [¶] 2. The defendant knew that he possessed the firearm; [¶] AND [¶] 3. The
defendant had previously been convicted of a felony.” (CALCRIM No. 2510.)
The trial court further instructed the jury regarding the special allegations. On the
gang allegation, the trial court instructed that “the People must prove that: [¶] 1. The
defendant committed the crime for the benefit of, at the direction of, or in association
with a criminal street gang; [¶] AND [¶] 2. The defendant intended to assist, further, or
promote criminal conduct by gang members.” (CALCRIM No. 1401.) On the discharge
of a firearm causing death allegation, the trial court instructed that “the People must
prove that: [¶] 1. The defendant personally discharged a firearm during the commission
of [the charged] crime; [¶] 2. The defendant intended to discharge the firearm; [¶] AND
[¶] 3. The defendant’s act caused the death of a person.” (CALCRIM No. 3149.)
B. Forfeiture
The People contend that Patino forfeited this claim when he failed to object to the
purported erroneous instruction. Patino acknowledges that no objection was made. His
claim is therefore forfeited. (Virgil, supra, 51 Cal.4th at p. 1260.) Regardless, he
contends his claim is reviewable because the purported error affected his substantial
rights. (§ 1259.) Because, as we conclude below, the trial court’s instructions were not
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erroneous, his substantial rights were not affected. (Andersen, supra, 26 Cal.App.4th at
p. 1249.)
C. Sufficiency of the Instructions
Patino argues that the trial court’s removal of the definitions of specific and
general intent from CALCRIM No. 252 “lessened the prosecution’s burden of proof” on
all of the charged offenses and special allegations. The People contend that the
instructions on the crimes and special allegations informed the jury of the actual intent
required for the particular offenses. The People are correct.
Our Supreme Court considered virtually the same argument in People v. Alvarez
(1996) 14 Cal.4th 155, 220. In Alvarez, the specific intent instruction given failed to
identify murder as a specific intent crime. (Ibid.) Our Supreme Court found it was error
not to identify murder as a specific intent crime, but the error was harmless because
“[the] instruction on murder substantially covered the concurrence of act and ‘specific
intent.’ ” (Ibid.) By instructing on express and implied malice, the murder instruction
advised the jury of the appropriate intent requirement. (Ibid.; see People v. Rogers
(2006) 39 Cal.4th 826, 874-875.) The same is true here. Indeed, part of the omitted
portion of CALCRIM No. 252 would have directed the jury to the instructions on each of
the specific crimes and allegations for explanation of the intent requirements.
(CALCRIM No. 252 [“The act and the specific (intent/ [and/or] mental state) required are
explained in the instruction for that crime [or allegation].”].)
Likewise, the instructions on the crime of possession of a firearm as a felon, the
special allegation of commission of a crime for the benefit of a criminal street gang, and
the special allegation of discharge of a firearm causing death each explained the relevant
state of mind requirements. (CALCRIM Nos. 2510 [defendant knowingly possessed a
firearm], 1401 [defendant intended to “assist, further, or promote criminal conduct by
gang members”], 3149 [defendant intended to discharge a firearm].)
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In light of all of the instructions, taken as a whole, there is no reasonable
likelihood that the jury misunderstood the intent requirements for any of the crimes of
conviction or special allegations that the jury found true.
IV. Cumulative Error
Patino argues that the purported errors discussed in sections I, II, and III of the
Discussion, ante, even if separately harmless, were together prejudicial. Because we find
error only on Patino’s first claim, we reject Patino’s contention that the judgment must be
reversed for cumulative error. (People v. Vieira (2005) 35 Cal.4th 264, 294.)
DISPOSITION
The judgment is affirmed.
SMITH, J.
WE CONCUR:
POOCHIGIAN, Acting P.J.
DETJEN, J.
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