Filed 3/17/14 P. v. Carillo CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                     (Sacramento)



THE PEOPLE,                                                                                  C073835

                   Plaintiff and Respondent,                                          (Super. Ct. Nos.
                                                                                   08F10624 & 09F05365)
         v.

EDGAR G. CARRILLO,

                   Defendant and Appellant.




         A jury convicted defendant Edgar G. Carrillo of the second degree murder of
Francisco Torres-Fernandez (count one; Pen. Code, § 187, subd. (a))1 and assault with a
deadly weapon upon Lorena Torres (count two; § 245, subd. (a)). As to count one, the
jury found that defendant intentionally discharged a firearm and caused death in the
commission of the offense (§ 12022.53, subd. (d)); as to count two, the jury found that
defendant did not personally inflict great bodily injury upon the victim (§ 12022.7,
subd. (a)).




1   Undesignated section references are to the Penal Code.

                                                             1
       Defendant contends the trial court erred prejudicially as to count one by failing to
instruct the jury sua sponte on imperfect self-defense. We affirm.
                 FACTUAL AND PROCEDURAL BACKGROUND
       Prosecution Case
       Lorena Torres (Lorena) testified that the victim in count one was her brother,
known as “Paco.”2 In December 2008, Ahida Garcia (Ahida), whom Paco had been
seeing for a few months, was renting a room in the house of Lorena and her family.
       On Christmas Eve 2008, a cold night with heavy rain and wind, Lorena and Paco
went to the house where defendant lived with his wife, Airali Diaz (Airali), their children,
and Ildefanso Diaz (Ilde), the brother of Airali and Ahida. Ahida had gone there that
evening and Lorena and Paco wanted to exchange presents with her.3 Lorena drove
Paco’s sport utility vehicle (SUV) because he had been drinking.
       When Lorena and Paco got to the house, she got out and knocked on the door.
Ilde answered the door and invited Lorena in. She declined his offer of a beer, saying “I
just came for Ahida.” Lorena and Ahida went out to the SUV, where Paco was standing.
       While Lorena, Paco, and Ahida were talking outside, Ilde came out and told Ahida
to go back in; she did not.4 Ahida said she would come to Lorena’s house soon by
herself. She walked around the passenger side of the SUV as Lorena and Paco walked
around the driver’s side.



2   A number of persons in the case share last names and/or were referred to at trial
principally by their first names. For clarity and convenience, we call those persons by the
names used at trial. We intend no disrespect.
3   The parties stipulated that if Ahida had been called to testify, she would have stated
that Ilde was upset that she was seeing Paco because she was going through a divorce that
was not yet final.
4  According to the parties’ stipulation, Ahida would also have testified that Ilde came
outside and told her to go back inside.

                                             2
       Defendant came out of the house and pushed Paco in the chest. Defendant said:
“Why are you coming to my house? Nobody should come to my house.” Paco said he
did not come there to cause problems. As defendant continued to hit or push Paco,
Lorena grabbed defendant by the shoulder and told him they were leaving.
       Defendant moved in front of Lorena and Paco, took out a gun, and fired a shot into
the ground between Lorena’s feet and Paco’s feet. They were “paralyzed” because they
had not known defendant had a gun.
       Lorena then moved quickly toward the driver’s side of the SUV, going from the
back to the front, and yelling for help. She heard more shots. When she reached the
front of the SUV, Ahida, Ilde, and Airali were there.
       Going to the back of the SUV again, Lorena saw Paco on the ground; defendant
was pointing the gun at his face. As she grabbed Paco and told him to get up, defendant
seized her shoulder and hit her on the right side of the head with his gun, then started
kicking her in the small of the back; she fell. Her forehead was “full of blood” and later
required five stitches at the hospital. When she turned around, she saw defendant and
Ilde kicking Paco.
       Lorena begged Ahida and Airali to help her. Seeing defendant coming toward her,
she got behind one of the women.
       Defendant and Ilde ran into the house, came out with keys, got into Ahida’s green
Nissan Xterra, and drove off. The Xterra was later found abandoned a mile and a half
from the crime scene. Defendant was found in Mexico in May 2011.
       Sacramento Police Officer John Harshbarger, who was dispatched to the scene to
check out a report of gunshots and “a subject down,” arrived there shortly after midnight.
He saw a man lying on the ground with blood on his chest; the man was unresponsive.
Emergency medical technicians determined that the man was dead.
       Sacramento Police Detective Jason Kirtlan arrived shortly afterward and saw that
the victim had “two apparent gunshot wounds to his upper torso.” Kirtlan found an

                                             3
expended bullet on the ground near the victim. A criminalist later determined that it was
a .38 or .357 magnum caliber bullet. A detective executing a search warrant on
defendant’s home a couple of hours later found six live .38-caliber bullets in a dresser
drawer in a downstairs bedroom.
       Dr. Stephany Fiore, who performed the autopsy on Paco, concluded that he was
shot twice in the chest; either wound would have been fatal. The shots were fired from
“intermediate range,” probably two or more feet away. Paco’s face had several bruises
and lacerations. According to the toxicology lab, Paco’s blood-alcohol content at the
time of death was 0.18 percent.
       A bullet which remained in the body was sent to the crime lab for analysis. The
criminalist determined that, like the bullet found on the ground near the victim’s body, it
was a .38 or .357 magnum caliber bullet.
       Defense Case
       Defendant testified on his own behalf.
       According to defendant, in December 2008 he and his wife occupied an upstairs
bedroom in their house. The downstairs bedroom where the police found bullets had
been occupied by a cousin for six months. Defendant did not know about the bullets and
had never had a gun before Christmas Eve 2008.
       As of December 2008, defendant worked at Sherwin-Williams, but also conducted
a business on the side selling and installing carpeting. Sometimes friends or employees
would come over and borrow his truck. On Christmas Eve, his friend and employee
“Luis” came over, asking to borrow the truck and saying he would return it the next day;
he had a gun with him and asked defendant to take it and hold it for him. He left five or
ten minutes before Lorena and Paco arrived.5



5   Defendant had known Luis for four or five years and used him to help on jobs two or
three days a week, but he was homeless and defendant did not know his last name or how

                                             4
       While defendant was on the telephone with relatives, another call came in. The
person on the other end said “Who the fuck are you?” Defendant demanded that the
other person “[s]how some respect” and identify himself; in response, the other person
said “What do you care?” Defendant hung up.
       Immediately afterward, a truck came into the driveway; Paco was driving.6 Ilde
and a male friend of his, whom defendant did not know and who never came into the
house, were outside at the time. They had been outside drinking for “an hour or two.”
       When defendant went outside to see who had arrived, he saw Paco arguing with
Ilde in a threatening manner. Defendant did not recall Lorena coming to the door and
asking for Ahida. (According to defendant, Lorena could not have knocked on the door
and Ilde could not have opened it, because defendant did not hear her knock on the door
and Ilde was outside.)7 Defendant noticed that Ahida had gone outside, but did not know
why. After she went out, defendant heard her and Lorena also yelling. Ilde’s unnamed
friend was not yelling.




to locate him now. Luis had never asked defendant to hold a gun for him before, and
defendant did not know why he did so on this occasion. Defendant “didn’t think about
it.” He did not know if the gun was loaded when Luis gave it to him in the bathroom of
defendant’s house, but defendant put the gun in his pocket and went back to the living
room where his children were. Defendant did not put the gun away because Luis said he
was coming back after buying beers at the liquor store. Defendant was not concerned
about whether the gun could go off by accident.
6  Defendant did not know Paco and did not remember ever meeting Lorena. Defendant
had stopped briefly at Lorena’s house once to measure for carpets.

   According to defendant, when Lorena testified that she was driving the SUV she was
“covering for her brother.”
7   Defendant said Lorena was wrong when she testified that Ilde came out after Ahida
and yelled at her to get back inside. Asked about the stipulation that Ahida would have
testified to the same effect, defendant said Ahida was also wrong.

                                            5
       Defendant asked Paco who he was. Paco, who was “very drunk and violent,” said
“What do you care?”8 Ahida and Lorena were trying to calm him down.
       According to defendant, Paco “started coming at me. He kicked me a few times,
so then I pulled out the gun and I shot at the ground, and then he came at me, and things
happened very quickly.” Just before defendant fired the shot, Paco said he “was going to,
uh, beat the shit out of [him].” Defendant shot into the ground because he got scared and
“to save [his] own life.”
       As Paco came at defendant, the gun fired twice. After Paco fell, Ilde took the gun
from defendant and started kicking Paco on the ground. When Lorena came over, Ilde hit
her on the forehead with the gun.
       Ilde grabbed the keys to Ahida’s truck and said, “Let’s go, let’s go.” They drove
to a gas station and parked there, then called a friend and asked him to give them a ride to
Mexico.
       Defense counsel asked: “Moments just before you shot [Paco], what were you
thinking?” Defendant answered: “Well, that he was going to hurt me because he -- he
threatened my life.” Asked whether defendant had any weapons, defendant said: “No.
He just -- he made a move like he was putting his hands into his pants.”
       On cross-examination, defendant said Paco threatened “to kick our ass.”
(Defendant conceded that he could have walked away from Paco.) After making this
threat, Paco walked away toward the back of his truck, “act[ing] like he was going to
grab something,” and “mention[ing] he was going to grab a weapon.”9 Defendant took




8   Defendant asked Ilde who Paco was. Ilde just said Paco was “a son-of-a-bitch.”
9  The prosecutor asked: “You didn’t tell us that until just this second when I asked you,
did you?” Defendant said: “Well, you did not ask me that.” The prosecutor followed
up: “When your attorney asked you about the threats, did you just forget to tell us at that
time that Paco said he was going to get a weapon?” Defendant said: “Yes.”

                                             6
the gun out of his pocket and fired into the ground only after Paco threatened him and
went back toward the truck. When defendant fired the shot and told Paco to leave, Paco
was facing him. He came forward; they struggled and the gun went off. Defendant did
not know how it fired. He and Paco were touching each other and struggling when it
happened.10
       Defendant did not hit Lorena with the gun or kick her; Ilde did. Lorena’s
testimony on that point was mistaken. Lorena was also mistaken when she testified that
defendant drove the Xterra from the scene; Ilde was the driver.
       Instructions
       The trial court noted that the instructions in the record so far were “a matter of our
consensus.” The court then stated that the facts as to count one warranted instruction on
self-defense (apparently not part of the “consensus” instructions); defense counsel
agreed.11 The court stated further that defendant’s testimony that the gun “went off . . .
in the course of a struggle” would also warrant instruction on accident, though it
contradicted defendant’s claim that he shot intentionally in self-defense. Defense
counsel, “[f]or tactical reasons,” requested that the court not instruct on accident. The
court agreed not to do so. Neither counsel proposed any other instruction.




10  Asked about Dr. Fiore’s opinion that the shots were fired from at least two feet away,
defendant said: “When he -- when he came at me, you can get separated a little, and
that’s when it fired. It wasn’t very far.” Defendant repeated that the shots were fired
while he and Paco were struggling, but finally said: “I don’t remember what the distance
between Paco and I was, whether it was two feet, three feet. I don’t know.”
11 The prosecutor requested that, along with self-defense instructions, the jury should
receive instructions on mutual combat and “that a self-defense claim cannot be
contrived.” The court indicated it would give those instructions and did so.

                                              7
       The trial court instructed the jury as to count one on justified self-defense and on
“heat of passion” voluntary manslaughter. The court did not instruct on imperfect self-
defense.
                                       DISCUSSION
       Defendant contends his testimony that Paco threatened to “beat the shit out of him
or kick his ass,” then failed to back off after a warning shot, then “seemed to be reaching
into his pants for something,” required the trial court to instruct sua sponte on imperfect
self-defense. Relying on People v. Randle (2005) 35 Cal.4th 987, overruled on another
point in People v. Chun (2009) 45 Cal.4th 1172, 1201, and People v. Vasquez (2006)
136 Cal.App.4th 1176, defendant contends further that the court’s failure to instruct on
imperfect self-defense was prejudicial error under the standard of People v. Watson
(1956) 46 Cal.2d 818, 836 (Watson) because the jury rejected premeditation and “sen[t]
out two notes regarding the evidence . . . .” Defendant also contends that the failure to
instruct on imperfect self-defense amounted to failing to instruct on the lesser included
offense of voluntary manslaughter, an error of constitutional dimension which requires
reversal unless we find the error harmless beyond a reasonable doubt. (See People v.
Lewis (2001) 25 Cal.4th 610, 645 (Lewis); Chapman v. California (1967) 386 U.S. 18
[17 L.Ed.2d 705] (Chapman).) We conclude that defendant was not entitled to
instruction on imperfect self-defense, but even if he were entitled to such instruction the
error in failing to give it was harmless under the Watson standard.
       “The trial court is obligated to instruct the jury on all general principles of law
relevant to the issues raised by the evidence, whether or not the defendant makes a formal
request. [Citations.] That obligation encompasses instructions on lesser included
offenses if there is evidence that, if accepted by the trier of fact, would absolve the
defendant of guilt of the greater offense but not of the lesser. [Citations.] To justify a
lesser included offense instruction, the evidence supporting the instruction must be
substantial–that is, it must be evidence from which a jury composed of reasonable

                                              8
persons could conclude that the facts underlying the particular instruction exist.
[Citations.]” (People v. Blair (2005) 36 Cal.4th 686, 744-745.)
       The duty to instruct on lesser included offenses includes the duty “to instruct, sua
sponte, on all theories of a lesser included offense which find substantial support in the
evidence. On the other hand, the court is not obliged to instruct on theories that have no
such evidentiary support.” (People v. Breverman (1998) 19 Cal.4th 142, 162
(Breverman).)
       “In deciding whether there is substantial evidence of a lesser offense, courts
should not evaluate the credibility of witnesses, a task for the jury. [Citations.]
Moreover, . . . the sua sponte duty to instruct on lesser included offenses . . . arises even
against the defendant’s wishes, and regardless of the trial theories or tactics the defendant
has actually pursued. Hence substantial evidence to support instructions on a lesser
included offense may exist even in the face of inconsistencies presented by the defense
itself.” (Breverman, supra, 19 Cal.4th at pp. 162-163, fn. omitted.)
       “ ‘An honest but unreasonable belief that it is necessary to defend oneself from
imminent peril to life or great bodily injury negates malice aforethought, the mental
element necessary for murder, so that the chargeable offense is reduced to manslaughter.’
[Citation.]” (In re Christian S. (1994) 7 Cal.4th 768, 773.) “[S]ubstantial evidence of . . .
unreasonable self-defense may exist, and the duty to instruct sua sponte may therefore
arise, even when the defendant claims that the killing was accidental, or that the [state] of
mind on which [unreasonable self-defense] depend[s] w[as] absent.” (Breverman, supra,
19 Cal.4th at p. 163, fn. 10.) However, “trial courts [need not] instruct sua sponte on
unreasonable self-defense in every murder case. Rather, the need to do so arises only
when there is substantial evidence that the defendant killed in unreasonable self-defense,
not when the evidence is ‘minimal and insubstantial.’ [Citation.]” (People v. Barton
(1995) 12 Cal.4th 186, 201, fn. omitted (Barton).)



                                               9
        Case law conflicts as to whether the trial court must always instruct on imperfect
self-defense if it instructs on justified self-defense; however, the most recent cases on
point hold that even where a justified self-defense instruction is properly given, the
evidence might not support instructing on imperfect self-defense. (See People v. Ceja
(1994) 26 Cal.App.4th 78, 85-86 (maj. opn. of Lillie, P. J.) [failure to instruct on
imperfect self-defense as well as justified self-defense reversible error]; id. at pp. 88-91
(conc. opn. of Johnson, J.) [expressing view such instruction must always be given]; but
see People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1273 (Rodriguez) [no duty to
instruct sua sponte on imperfect self-defense, regardless of the evidence, merely because
justified self-defense instruction given; Ceja distinguishable because imperfect self-
defense instruction requested]; accord, People v. Valenzuela (2011) 199 Cal.App.4th
1214, 1229-1232 (Valenzuela), citing Barton, supra, 12 Cal.4th at p. 201.) We agree
with Rodriguez and Valenzuela.
       Where “[the defendant]’s testimony, if the jury believed him, could only lead to a
conclusion that he acted in justifiable self-defense . . . , not to a conclusion that he acted
in imperfect self-defense,” the trial court has no duty to instruct sua sponte on imperfect
self-defense. (Valenzuela, supra, 199 Cal.App.4th at p. 1232.) This is such a case.
       Defendant testified that after threatening defendant’s life, Paco headed for his
vehicle while saying “he was going to grab a weapon.”12 If credited, this evidence,
together with the evidence that Paco was drunk, belligerent, and undeterred by a warning
shot, would have supported defendant’s claim that he reasonably feared for his life. We
see no way in which a jury could have found on that evidence, considered as a whole,
that defendant’s alleged fear for his life was unreasonable. Therefore, he was not entitled
to an instruction on imperfect self-defense. (Barton, supra, 12 Cal.4th at p. 201;



12  Defendant refers to Paco’s threats in general terms, but the only specific threat he
cites is the threat to “beat the shit out of [defendant]” or “kick his ass.”

                                              10
Valenzuela, supra, 199 Cal.App.4th at p. 1232; Rodriguez, supra, 53 Cal.App.4th at
p. 1273.)
       But even assuming the trial court erred by not instructing sua sponte on imperfect
self-defense, the error was harmless.
       We reject defendant’s claim that the Chapman standard applies. In Lewis, supra,
25 Cal.4th 610, which defendant cites for the proposition that the failure to instruct on a
lesser included offense is constitutional error, the trial court did not instruct on
manslaughter, a lesser included offense of murder as to which the defendant argued that
substantial evidence would have supported instruction. (Id. at p. 645.)13 Here, the trial
court did instruct on the lesser included offense of voluntary manslaughter; the court
merely omitted instruction on one theory of that offense (imperfect self-defense).
Defendant cites no authority, and we know of none, holding that the failure to instruct on
all possible theories supporting a lesser included offense as to which the jury was
instructed is constitutional error implicating Chapman. In fact, the authorities on which
he mainly relies to support his claim of prejudice from the failure to instruct on imperfect
self-defense apply the Watson standard. (People v. Randle, supra, 35 Cal.4th at p. 1003;



13 The Lewis court did not decide whether the trial court’s failure to so instruct was error
because the error, if any, could not have prejudiced the defendant. (Lewis, supra,
25 Cal.4th at p. 646.)

    In defendant’s reply brief, he belatedly cites People v. Thomas (2013)
218 Cal.App.4th 630 (Thomas), an opinion published before he filed his opening brief, as
authority for the proposition that “failure to instruct on a voluntary manslaughter theory
in a murder trial constituted federal constitutional error.” However, in Thomas, as in
Lewis, the failure to instruct on the “theory” of heat of passion and provocation meant
that the jury received no instruction at all on voluntary manslaughter, a lesser included
offense as to which there was evidence supporting the instruction. (Thomas, at pp. 642-
645.) Furthermore, the failure to instruct on heat of passion and provocation in Thomas
was federal constitutional error because it eliminated the prosecution’s burden to prove
malice, an element of murder, by proving the absence of provocation. (Id. at p. 643.)
Here, as we have mentioned, the trial court instructed on heat of passion and provocation.

                                              11
People v. Vasquez, supra, 136 Cal.App.4th at p. 1180.) We shall also apply that
standard.
       Under Watson, there is no reasonable probability that defendant would have
obtained a more favorable outcome had the trial court instructed the jury on imperfect
self-defense. The case presented a clear credibility contest between Lorena and
defendant. Lorena’s story was simple, internally consistent, and in harmony with the
other evidence aside from defendant’s. Defendant, on the other hand, gave multiple
versions of the critical events, all of which put him in direct conflict with Lorena (as to
whether Ilde came outside and ordered Ahida to go back in the house, thus triggering the
fatal sequence of events, defendant also contradicted Ahida). Defendant’s strongest
evidence for self-defense -- the claim that Paco threatened his life, then went to get a
weapon from his vehicle -- emerged only on the third time through defendant’s story,
after he had previously claimed that Paco merely threatened to beat him up. Defendant’s
account also rested heavily on peculiar acts allegedly performed by persons whose
identities were not verified and who were not produced at trial (Ilde’s unnamed friend,
with whom Ilde was supposedly talking outside in the rain for hours; defendant’s friend
and employee “Luis,” who mysteriously entrusted defendant at the last minute with the
gun used to shoot Paco). Moreover, defendant’s assertion that the fatal shots were fired
during a hand-to-hand struggle with Paco conflicted with the forensic pathologist’s
opinion that the shots were fired from at least two feet away, and defendant could not
explain this discrepancy.14 Finally, defendant’s flight to Mexico, where he remained in
hiding for years, did not strengthen his credibility. In light of all of this evidence, we see




14 Despite defense counsel’s tactical decision to refuse instruction on the theory of
accident, the jury might also have perceived that defendant’s claim the gun went off
without any deliberate act on his part was inconsistent with his claim of self-defense.

                                              12
no possibility that the jury would have found defendant’s story more believable than the
contrary evidence had the trial court instructed on imperfect self-defense.
                                      DISPOSITION
       The judgment is affirmed.


                                             BLEASE                   , Acting P. J.


I concur:


            NICHOLSON              , J.



I concur because no substantial evidence supports the defense of imperfect self-defense
on this record.


            DUARTE                 , J.




                                            13
