Filed 7/8/16; second of two modifications; unmodified opinion and first modification attached

                         CERTIFIED FOR PARTIAL PUBLICATION1

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                    SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                     H041157
                                                               (Santa Cruz County
        Plaintiff and Respondent,                               Super. Ct. No. F22019)

        v.
                                                             ORDER MODIFYING OPINION
JOSÉ DE JESÚS OCEGUEDA,

        Defendant and Appellant.
                                                             NO CHANGE IN THE JUDGMENT


        THE COURT:
        It is ordered that the opinion filed herein on June 9, 2016, be modified as follows.
On page 1, the following sentence in the first paragraph:

        The jury also found firearm enhancements true as to each offense.
shall be modified as follows:

        The jury also found a firearm enhancement true as to the attempted murder count.


There is no change in the judgment.




        1
            Under California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II.B., II.C., and II.D.
Dated:_________________________       _______________________________
                                      Márquez, J.




                                      _______________________________
                                      Rushing, P.J.




People v. Ocegueda
H041157




                                  2
Filed 6/22/16 Unmodified opinion attached
                        CERTIFIED FOR PARTIAL PUBLICATION2

              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SIXTH APPELLATE DISTRICT


THE PEOPLE,                                         H041157
                                                   (Santa Cruz County
        Plaintiff and Respondent,                   Super. Ct. No. F22019)

        v.
                                                  ORDER MODIFYING OPINION
JOSÉ DE JESÚS OCEGUEDA,

        Defendant and Appellant.
                                                  NO CHANGE IN THE JUDGMENT



THE COURT:
        It is ordered that the opinion filed herein on June 9, 2016, be modified as follows.
On page 15, in Section II.A.4. of the published part of the opinion, the following citation:

        (People v. Elmore (2014) 59 Cal.4th 121, 133 (Elmore).) (Flannel, supra,
        25 Cal.3d at p. 672 [one who holds an honest but unreasonable belief in the
        necessity to defend against imminent peril to life or great bodily injury does not
        harbor malice and commits no greater offense than manslaughter].)
shall be modified as follows:

        (People v. Elmore (2014) 59 Cal.4th 121, 133 (Elmore); see Flannel, supra,
        25 Cal.3d at p. 672 [one who holds an honest but unreasonable belief in the
        necessity to defend against imminent peril to life or great bodily injury does not
        harbor malice and commits no greater offense than manslaughter].)




        2
            Under California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II.B., II.C., and II.D.
There is no change in the judgment.




Dated:_________________________           _______________________________
                                          Márquez, J.




                                          _______________________________
                                          Rushing, P.J.



                                          _______________________________
                                          Premo, J.




                                      2
Filed 6/9/16 Unmodified opinion
                       CERTIFIED FOR PARTIAL PUBLICATION1

             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SIXTH APPELLATE DISTRICT


THE PEOPLE,                                         H041157
                                                   (Santa Cruz County
        Plaintiff and Respondent,                   Super. Ct. No. F22019)

        v.

JOSÉ DE JESÚS OCEGUEDA,

        Defendant and Appellant.


        Defendant José De Jesús Ocegueda shot Martin Garcia multiple times in the chest
and abdomen at a New Year’s Eve party. A jury found defendant guilty of attempted
murder, assault with a firearm, and dissuading a witness. The jury also found firearm
enhancements true as to each offense. But the jury found not true all alleged gang
enhancements as well as the allegation that the attempted murder was willful, deliberate,
and premeditated. The trial court imposed an aggregate term of 37 years to life in prison.
        Defendant raises four claims on appeal. First, he contends the trial court erred by
failing to instruct the jury it could consider evidence of his mental disabilities with
respect to his claim of imperfect self-defense. Second, he contends the trial court erred
by allowing the prosecution to present a firearms expert as a rebuttal witness. Third, he
contends his trial counsel was ineffective by failing to move for exclusion of his pretrial
statement to police on the ground that the police failed to properly advise him of his
rights under Miranda.2 Fourth, he contends the trial court erred by imposing a full

        1
          Under California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of parts II.B., II.C., and II.D.
        2
          Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
consecutive term for the assault conviction rather than one-third the middle term as
required by Penal Code section 1170.1. The Attorney General concedes the merits of this
fourth and final claim.
       We hold the trial court erred by precluding the jury from considering evidence of
defendant’s mental disabilities in deciding whether he harbored the state of mind required
for imperfect self-defense. However, we conclude the error was harmless. We also
accept the Attorney General’s concession as to the claim of sentencing error.
Accordingly, we will reverse and remand for resentencing. As to the remaining claims,
we conclude they are without merit.
                      I. FACTUAL AND PROCEDURAL BACKGROUND
   A. Facts of the Offense
       1. Overview
       Defendant did not deny shooting Martin Garcia on at a New Year’s Eve party in
2011. Defendant gave a statement to police in which he admitted shooting Garcia, but he
claimed he did so out of fear because he believed Garcia was pulling a gun on him. At
trial, the prosecution offered evidence that defendant was a member of the Vagos, a
subset of the Sureño criminal street gang in Salinas. The prosecution’s gang expert
opined that defendant shot Garcia for the benefit of the gang. Defendant put forth the
theory that Garcia and other persons at the party were Norteño gang members, such that
defendant feared for his safety just before the shooting.
       2. Testimony of Dulce Meraz
       Dulce Meraz testified as follows. On December 31, 2011, her family was hosting
a New Year’s Eve party at their house in Watsonville. About 15 to 25 people attended,
including older relatives and young children. The party was intended to be a family
gathering and, to Meraz’s knowledge, nobody at the party was associated with gangs.
The invitees included Jesse Renteria and his girlfriend Niniana Rivera. Martin Garcia
came with Renteria and Rivera. Meraz had never seen Garcia before.
                                             2
       Around 11:00 p.m., defendant arrived with his girlfriend, Margarita “Maggie”
Ruiz. Meraz had never seen them before, and she had not invited them. Defendant was
wearing “a baby blue checkered shirt” and jeans. Based on the look on defendant’s face
and the way he was walking, Meraz got the impression he was “trouble.” Defendant had
a “hardcore face” and acted “really serious.”
       As midnight approached, several partygoers were gathered outside drinking and
smoking. Those outside included Meraz’s husband, Renteria, Rivera, Garcia, Ruiz, and
defendant. Meraz went outside to ask them to come into the house for a countdown to
midnight, but they wanted to finish smoking outside. A few minutes before midnight,
Meraz was standing by the garage about five or six feet away from Garcia. The
partygoers were standing around, taking pictures with their phones, and chitchatting
about sports. Meraz did not see Garcia “having problems” with anyone. Garcia was not
acting aggressively, “mad dogging” anyone, acting drunk, or doing anything to cause
concern. Garcia was laughing and he was in a good mood.
       At that point, Meraz saw defendant approach Garcia. Defendant said to Garcia,
“[H]ey, let’s smoke a cigarette.” Garcia agreed and turned towards defendant,
whereupon defendant shot Garcia. Meraz heard the gun go off three times, and she saw a
muzzle flash from the gun, but she could not see the gun in defendant’s hand. She did
not see Garcia reach for anything or try to grab anything, nor did he take anything out
from his waistband or the front of his coat. Meraz testified that Garcia did not make any
aggressive moves toward defendant or call him “a little bitch.”
       As soon as the shots were fired, defendant ran away without saying anything to
Garcia. Garcia grabbed himself with both hands and fell to the ground. Ruiz ran to her
car and drove after defendant. Meraz called 911 on the cell phone in her pocket.
       3. Testimony of Jesse Renteria
       Renteria and his girlfriend, Niniana Rivera, arrived at the party with Garcia around
10:00 p.m. They had stopped at a liquor store to buy beer on the way to the party. When
                                             3
they arrived, Rivera introduced Renteria to defendant and Ruiz. Defendant was wearing
a blue and white shirt with small squares. Around 11:45 or 11:50 p.m., defendant asked
Renteria if it was okay to fire a gun into the air to celebrate New Year’s Eve. Renteria
told defendant it was a family gathering and the hosts would not like it. Defendant did
not show a gun to Renteria.
       Shortly before midnight, Renteria and Rivera were standing next to Garcia
outside. Defendant and Ruiz were also outside. Defendant was on his cell phone, but
Renteria could not hear him talking. At some point, defendant moved closer to Garcia,
who was standing a couple feet away from Renteria. Renteria then heard three or four
gunshots. Garcia said, “I’ve been shot,” and fell to the ground. Renteria felt something
hit his leg when the gunshots went off. He did not see defendant pull a gun out, but he
saw a muzzle flash out of the corner of his eye. He did not hear defendant or Garcia say
anything to each other. He did not see Garcia reach for anything or move his arms just
before the shots were fired. After Garcia was shot, defendant ran away down the street.
Ruiz ran to her car, which was parked in the street in front of the house. Ruiz drove
down the street, picked up defendant, and they both drove away.
       Renteria testified that he never saw Garcia “mad dogging” defendant or say
anything to defendant. He also testified that Garcia was not causing problems with
anyone at the party or “getting up on anybody’s girl.”
       The next day, Renteria received a strange phone call around 10:00 or 11:00 a.m.
The call came from a nonlocal area code, and Renteria did not recognize the voice. The
caller wanted to talk to Rivera, so Renteria handed the phone to her. He saw her
expression turn to fear, and she cried after the call was over.
       Several months later, Renteria had a “run in” with some Norteños at the
Applebee’s in Watsonville. They asked Renteria what had happened when Garcia was
shot, and whether Renteria had done anything to help Garcia. Renteria told them he had
not done anything because everything happened so fast. On cross-examination, Renteria
                                              4
testified that Garcia was not a Norteño. Renteria knew some Norteños, but he did not
“hang out” with them.
       4. Testimony of Niniana Rivera
       Niniana Rivera testified as follows. Garcia was a friend of Jesse Renteria, her
boyfriend at the time of the shooting. Rivera knew Ruiz from school. Ruiz only dated
Sureños, and she hung out with other girls who dated Sureños. Rivera invited Ruiz to the
New Year’s Eve party. Ruiz asked Rivera if it was going to be a gang party. Rivera told
Ruiz it was a family party, not a gang party.
       Rivera, Renteria, and Garcia drove together to the New Year’s Eve party the night
of the shooting. They stopped at a liquor store on the way because Garcia wanted to get
beer for the party. Garcia had already had a couple of beers before they picked him up.
       Ruiz and defendant arrived around 11:30 p.m. Defendant was wearing a light blue
checkered shirt, but Rivera did not think he was a Sureño. Rivera did not see any
Norteños at the party, but she was aware that Garcia hung out with Norteños. She was
also aware that Garcia had uncles who were Norteños.
       Around 11:50 p.m., Rivera went outside with defendant and Ruiz. Defendant
asked Rivera if it would be okay to fire a gun at midnight. Rivera told defendant she did
not know and that he should ask the hosts, but he did not do so. Instead, he went to
Ruiz’s car, got something out of the glove compartment, and put the object in his pocket.
Rivera could not see what the object was. Defendant then rejoined Rivera and Ruiz, who
were standing on the grass in front of the house.
       Renteria was also outside, smoking marijuana with Garcia and others in front of
the garage. Defendant wanted to smoke as well, so Rivera told him to go smoke with
Renteria and the others. Defendant then walked away from Rivera and Ruiz and joined
Renteria and Garcia. At that point, Rivera heard “two big loud noises.” At first she
thought someone had set off fireworks, but then she saw Garcia on the ground. She then
saw defendant running away down the street. Ruiz was driving after him. Rivera then
                                                5
saw a group of persons looking like Norteño gangsters who “showed up out of nowhere”
to chase after Ruiz’s car. When Ruiz caught up with defendant, he got into the
passenger’s seat. Ruiz then drove off through a red light. The police arrived a couple of
minutes later and took Rivera and Renteria to the police station for questioning.
       Rivera never saw any problems between defendant and Garcia. She did not see
Garcia give defendant “hard looks” or say anything to him. Garcia had not been having
issues with anyone else at the party either. Rivera had never seen Garcia with a gun or
any other kind of weapon.
       At around 11:00 a.m. the next morning, Rivera was getting up with Renteria when
Renteria’s phone rang. Renteria thought it was a police officer because of the strange
area code. Renteria answered the phone and then handed it to Rivera. The caller told
Rivera, “You better not say anything, you rat.” Rivera could hear Ruiz’s voice in the
background, and she believed defendant was the caller. Rivera told him she would
“never rat [Ruiz] out,” and the caller told Rivera not to mention Ruiz’s name. Rivera lied
and told the caller she had not said anything to the police. The caller asked, “Did he
die?” Rivera told him she did not know, and the caller hung up. Rivera, who was scared,
started crying.
       5. Gang Evidence
       The prosecution’s gang expert opined that defendant was a member of the Vagos
subset of the Sureño criminal street gang based on the following evidence. First,
defendant used a gang moniker—“Chuco,” a shortened version of “Pachuco”—which
meant “original gangster.” Second, defendant had multiple tattoos normally worn by
Sureño gang members. Third, defendant also had prior contacts with police involving
altercations between gang members. Fourth, gang graffiti found on the walls of Ruiz’s
residence contained references to “Chuco” and the Vagos gang. Fifth, photos found on
defendant’s cell phone showed him flashing a V-shaped hand sign, referencing the
Vagos. And sixth, the contacts listed in defendant’s phone included three known Vagos
                                             6
gang members. The police found messages on the phone in which defendant referred to
himself as “Chuco” in texting with the other gang members. The gang expert also opined
that Garcia was a Norteño associate, and that defendant’s shooting of Garcia benefitted
the Vagos gang by eliminating a rival and enhancing the gang’s reputation for violence.
       6. Defendant’s Statements to Police
       On January 8, 2012, border agents detained defendant as he tried to reenter the
United States from México. Police interviewed defendant in a holding room at an
Imperial County jail. At trial, the prosecution played an audio recording of the interview
for the jury and provided it with a transcript of the interview.
       When the police initially confronted defendant about the offense, he denied being
at the party. But after continued questioning, he admitted he was at the party and he
admitted shooting Garcia. Defendant claimed Garcia was “mad dogging” him and
“calling me shit, calling me stuff.” Defendant said Garcia called him “a little bitch” and
told him to “get over here.” Defendant claimed Garcia appeared to be pulling a weapon
out of his waistband, so “for my protection” and “for my sake,” defendant pulled a .38-
caliber revolver out of his pocket and shot Garcia twice. Defendant said, “He was just
approaching, he was gonna try to grab something, and so I got scared, you know?”
Defendant later claimed Garcia was reaching into his coat and added, “Well, I seen
something metal, obviously it’s a strap.” Defendant denied having any association with
Sureños, and he stated that he did not know if Garcia was a Norteño.
       When defendant was moved to a Santa Cruz County jail, he stated that he no
longer wanted to be a Sureño and asked not to be housed with Sureños. Police re-
interviewed defendant on January 18, 2012. The prosecution played an audio recording
of the interview for the jury and provided them with a transcript. Defendant stated he had
grown up with Sureños as neighbors and he started hanging out with them in high school.
He claimed he was dropping out of the Sureños to get away from “the life” and his new
life was “going good.”
                                              7
       7. Other Prosecution Evidence
       Police were called to the scene of the shooting at 11:57 p.m. They found Garcia
lying unresponsive in the driveway. He was wearing a red plaid dress shirt and a black
jacket. Based on Garcia’s shirt, his haircut, and the fact that he was a Latino male in
Watsonville, the responding officer testified that Garcia looked like “a gang type male.”
Garcia had a gunshot wound in his left chest above the heart, and another wound in the
stomach area. After going in and out of consciousness, Garcia stopped breathing and the
police performed CPR until an ambulance arrived. At the hospital, the police observed a
third gunshot wound on the right side of Garcia’s chest.
       Police also searched Ruiz’s bedroom soon after the shooting. They found gang
graffiti on the walls, a Los Angeles Dodgers blanket over the window, and a rifle. The
graffiti included references to “Chuco” and the Vagos street gang. Police found a letter
to Ruiz from a Sureño gang member in prison. They also found a receipt for ammunition
purchased from a Big 5 sporting goods store on New Year’s Eve around 5:00 p.m. The
parties stipulated that Ruiz had attempted to buy ammunition for a .38-caliber revolver,
but the store would not sell it to her because she was a minor, whereupon Ruiz’s sister
purchased the ammunition.
       Police arrested Ruiz on January 5, 2012. During her arrest, they found five spent
shell casings from a .38-caliber revolver in her purse. They also found a traffic citation
issued to a vehicle matching the description of the vehicle the partygoers saw Ruiz
driving after the shooting. A database search of the license plate number on the citation
showed the vehicle registered to defendant’s mother.
       The prosecution subpoenaed Ruiz to testify at trial and granted immunity for her
testimony, but she refused to testify. The prosecution also attempted to subpoena Garcia
to testify, but investigators for the district attorney’s office were unable to serve him
personally.


                                              8
       8. Defense Evidence
          a. Testimony of Dr. Shelley Peery
       Dr. Shelley Peery, a clinical psychologist, testified for the defense as an expert in
neuropsychology. Among other things, Dr. Peery reviewed defendant’s school records
and gave him a battery of neuropsychological tests to assess his mental development.
Defendant’s school records showed he had difficulty processing auditory and visual
information, and problems with his mental processing speed in general. Persons with
such processing disorders might have problems with interpreting what they see or hear, or
it might take them longer to arrive at a conclusion about what they see or hear.
       Defendant’s school records documented his I.Q. at 74, placing him in the fourth
percentile. Based on her own testing, Dr. Peery testified defendant had an I.Q. of 65,
indicating a mild intellectual developmental disability historically described as mild
mental retardation. Defendant’s behavioral functioning was in the third percentile; his
processing speed was in the tenth percentile; his perceptual and reasoning skills were in
the fourth percentile; his verbal skills were below the first percentile; and his working
memory was also below the first percentile. Dr. Peery estimated that defendant’s abilities
to perform the activities of daily living were at a 13-year-old level.
       Due to his disabilities, defendant had difficulty planning and understanding the
causes and effects of his actions. He also had difficulties in problem solving and
considering or weighing his options. Dr. Peery testified that being placed in a stressful
situation would magnify those difficulties. The fact that defendant had grown up in a
violent environment made it more reasonable that he would respond with force to
somebody threatening him.
       When Dr. Peery questioned defendant about the shooting, he told her Garcia had
been “mad dogging” him at the party, yelling at him, and making him scared. Defendant
claimed he thought he had seen a gun, causing him to panic, shoot Garcia, and run away.
He described his actions as a response to being afraid for his life. Based on defendant’s
                                              9
statements, Dr. Peery opined that defendant was “acting from a place of fear” at the time
of the offense.
          b. Evidence of Garcia’s Violent Character
       The defense presented several witnesses who testified about multiple acts of
violence that Garcia had previously committed. In January 2007, Enrique Cabrera was in
a car with Garcia’s sister when Garcia and a group of friends smashed one of the car’s
windows and attacked the occupants. The police took Garcia into custody following the
incident. In July 2007, Garcia attacked José Vaca at a McDonald’s restaurant in
Watsonville. Garcia and Vaca had previously fought each other in the parking lot of a
bowling alley. In the incident at the McDonald’s, Vaca was waiting in the parking lot of
the restaurant when Garcia attempted to drive his car into Vaca. After Vaca eluded the
car, Garcia got out of the car and assaulted Vaca with his fists. Garcia subsequently
attempted to start a fight with one of Vaca’s coworkers.
       9. Rebuttal Witnesses for the Prosecution
       The prosecution offered two witnesses in rebuttal––Dr. Jonathan French and
firearm expert Ronald Lamb.
       Dr. Jonathan French––Dr. Jonathan French, a psychologist in private practice,
testified as an expert in forensic psychology. Dr. French opined that Dr. Peery’s
psychological analysis of defendant fell below forensic standards. He criticized Dr.
Peery for failing to consider all the evidence and failing to cross check statements or facts
upon which she relied. He testified that Dr. Peery failed to take into consideration
defendant’s involvement in a criminal street gang and failed to take adequate care to
assure defendant was not malingering during her examinations.
       Ronald Lamb––Ronald Lamb, a firearms trainer and consultant, testified as an
expert in small arms and tactics. Lamb opined on the length of time required for a person
to draw a pistol and fire in self-defense. Based on a hypothetical set of facts resembling
those asserted by the defense, Lamb opined that a person in defendant’s circumstances
                                             10
could not have drawn and fired his weapon three times before the target was able to
return fire.
   B. Procedural Background
       In August 2012, the prosecution charged defendant by information with: Count
One—Active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a));
Count Two—Attempted premeditated murder (Pen. Code, §§ 187, subd. (a), 664,
subd. (a)); Count Three—Assault with a firearm (Pen. Code, § 245, subd. (a)(2)); and
Count Four—Dissuading a witness by force or threat (Pen. Code, § 136.1, subd. (c)(1)).
Prior to trial, Count One was dismissed in the interests of justice. As to Count Two, the
information alleged defendant personally and intentionally discharged a firearm,
proximately causing great bodily injury. (Pen. Code, § 12022.53, subd. (d).) As to Count
Three, the information alleged defendant carried a firearm on his person in the
commission of a street gang crime. (Pen. Code, § 12021.5, subd. (a).) As to Counts
Two, Three, and Four, the information alleged the offenses were committed for the
benefit of, at the direction of, and in association with a criminal street gang. (Pen. Code,
§ 186.22, subd. (b)(1).)
       The case proceeded to trial in January 2014. On March 3, 2014, the jury found
defendant guilty on all counts. As to Count Two, the jury found the firearm enhancement
to be true, but it found not true the allegation that the murder was willful, deliberate, and
premeditated. The jury also found not true all alleged gang enhancements.
       The trial court imposed an indeterminate term of 34 years to life consecutive to a
determinate term of three years. The term of 34 years to life consisted of the upper term
of nine years on Count Two with a consecutive term of 25 years to life for the firearm
enhancement. The determinate term of three years consisted of the midterm of three
years on Count Three concurrent with the midterm of three years on Count Four.




                                             11
                                        II. DISCUSSION
   A. Jury Instructions Regarding Mental Disabilities and Imperfect Self-Defense
       Defendant contends the trial court erred by failing to instruct the jury it could
consider evidence of his mental disabilities in deciding whether he had the state of mind
required for imperfect self-defense. The Attorney General contends defendant forfeited
the claim by failing to request a pinpoint instruction. She further argues defendant was
not entitled to such an instruction because unreasonable self-defense cannot be based on
delusion, and defendant failed to present evidence sufficient to support a finding of
unreasonable self-defense.
       1. Procedural Background
       Based on CALCRIM No. 604, the trial court instructed the jury on attempted
voluntary manslaughter under a theory of imperfect self-defense. Based on
CALCRIM No. 3428, the court also instructed the jury on the effect of mental
disabilities, as follows: “You have heard evidence that the defendant may have suffered
from a mental disease, defect, or disorder. You may consider this evidence only for the
limited purpose of deciding whether, at the time of the charged crimes and special
allegations, the defendant acted or failed to act with the specific intent or mental state
required for those crimes and special allegations. [¶] Those specific intents and mental
states are as follows: [¶] Number 1: The intent to kill contained in attempted murder
and attempted voluntary manslaughter. [¶] Number 2: The premeditation and
deliberation contained in the special allegation relating to the charge of attempted
murder.”3 Defense counsel did not request any modification of this instruction to include
the state of mind required for imperfect self-defense.




       3
        The instruction continued by listing the mens rea requirements for the remaining
charges and enhancements. Those portions of the instruction are not at issue here.
                                              12
       2. Legal Principles
       “Manslaughter is the unlawful killing of a human being without malice.” (Pen.
Code, § 192.) “The vice is the element of malice; in its absence the level of guilt must
decline.” (People v. Flannel (1979) 25 Cal.3d 668, 680, superseded by statute on other
grounds.) When a defendant intentionally kills based on an honest belief in the need for
self-defense, but this belief is not objectively reasonable, the defendant acts in
“imperfect” or “unreasonable” self-defense. This state of mind negates malice, reducing
the offense to voluntary manslaughter. “It is the honest belief of imminent peril that
negates malice in a case of complete self-defense; the reasonableness of the belief simply
goes to the justification for the killing.” (Id. at p. 679.) “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.” (Id. at p. 674, italics in original.)
       Penal Code section 28 (Section 28) circumscribes the use of evidence of mental
disease or defect, as follows: “Evidence of mental disease, mental defect, or mental
disorder shall not be admitted to show or negate the capacity to form any mental state,
including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or
malice aforethought, with which the accused committed the act. Evidence of mental
disease, mental defect, or mental disorder is admissible solely on the issue of whether or
not the accused actually formed a required specific intent, premeditated, deliberated, or
harbored malice aforethought, when a specific intent crime is charged.” (§ 28, subd. (a),
italics added.)
       “The independent or de novo standard of review is applicable in assessing whether
instructions correctly state the law [citations] and also whether instructions effectively
direct a finding adverse to a defendant by removing an issue from the jury’s
consideration.” (People v. Posey (2004) 32 Cal.4th 193, 218.)


                                             13
       3. Forfeiture
       The Attorney General contends defendant forfeited his claim by failing to request
a pinpoint instruction below. Both parties agree that the trial court had no sua sponte
duty to instruct the jury on mental disabilities with respect to defendant’s state of mind.
(People v. Ervin (2000) 22 Cal.4th 48, 91 [sua sponte instructions on the effect of mental
disabilities became unnecessary with the abolition of the diminished capacity doctrine];
see People v. Saille (1991) 54 Cal.3d 1103, 1120 [after abolition of diminished capacity
doctrine, instruction relating evidence of intoxication to mental state required for an
offense is a pinpoint instruction that need not be given sua sponte].) However, defendant
argues that once the trial court gave such an instruction, it had a duty to do so correctly.
(See People v. Pearson (2012) 53 Cal.4th 306, 325 [although a trial court has no sua
sponte duty to give a pinpoint instruction on the relevance of evidence of voluntary
intoxication, when it does choose to instruct, it must do so correctly].)
       We agree with defendant insofar as the claimed error affected his substantial
rights. The California Supreme Court recently affirmed this principle in People v.
Townsel (2016) 63 Cal.4th 25 (Townsel).) There, the defendant argued that the trial
court’s instruction on the effect of his mental disabilities erroneously precluded the jury
from considering his disabilities in deciding whether he formed the requisite mental states
for murder and other charges. The trial court had given the challenged instruction at the
request of both parties. On appeal the Attorney General asserted the invited error
doctrine. Our high court acknowledged the principle that it is incumbent on the
defendant to affirmatively seek a proper instruction, but held the claim reviewable under
Penal Code section 1259: “The appellate court may also review any instruction given,
refused or modified, even though no objection was made thereto in the lower court, if the
substantial rights of the defendant were affected thereby.” (Pen. Code, §1259.) Under
this standard, “[t]he question is whether the error resulted in a miscarriage of justice
under People v. Watson (1956) 46 Cal.2d 818.” (People v. Anderson (2007)
                                             14
152 Cal.App.4th 919, 927 [error affected defendant’s substantial rights if it is reasonably
probable a more favorable result would have been reached in the absence of the error].)
Because defendant’s argument here is substantially similar to the defendant’s claim in
Townsel, we will consider the merits of the argument under the Watson standard.4 (See
People v. McGehee (2016) 246 Cal.App.4th 1190.)

       4. The Trial Court Erred by Limiting the Jury’s Consideration of Defendant’s
          Mental Disabilities
       A defendant who acts with the state of mind required for imperfect self-defense
does not harbor express malice. “Two factors may preclude the formation of malice and
reduce murder to voluntary manslaughter: heat of passion and unreasonable self-
defense.” (People v. Elmore (2014) 59 Cal.4th 121, 133 (Elmore).) (Flannel, supra,
25 Cal.3d at p. 672 [one who holds an honest but unreasonable belief in the necessity to
defend against imminent peril to life or great bodily injury does not harbor malice and
commits no greater offense than manslaughter].) Taking these principles together,
California law allows the jury to consider a defendant’s mental disabilities in deciding
whether he or she had an actual but unreasonable belief in the need for self-defense. But
with respect to the attempted murder charged here, the trial court instructed the jury it
could consider evidence of defendant’s mental disabilities “only for the limited purpose”
of deciding whether defendant harbored the “intent to kill.” As noted earlier, however,
Section 28 expressly makes evidence of mental disabilities admissible to consider
whether a defendant harbored express malice. Therefore, by limiting the jury’s
consideration of mental disability evidence to the question of whether defendant had an


       4
         Defendant further contends his trial counsel was ineffective by failing to request
a pinpoint instruction. Because the Watson standard is substantially the same as the
prejudice prong of Strickland v. Washington (1984) 466 U.S. 668 (defining prejudice as
the reasonable probability of a result more favorable to defendant), we need not consider
this claim. (See Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050 [comparing
Watson standard to Strickland standard].)
                                             15
intent to kill––but not whether he harbored express malice––the trial court’s instruction
ran afoul of Section 28.
       The Attorney General argues the instructions were correct because the standard
instructions on attempted murder and attempted voluntary manslaughter “do not require a
showing of malice per se, but instead, a showing of the specific intent to kill.” This claim
is mistaken. CALCRIM No. 604, the pattern instruction on attempted voluntary
manslaughter under a theory of imperfect self-defense, instructs jurors: “The People
have the burden of proving beyond a reasonable doubt that the defendant was not acting
in imperfect self-defense.” This properly places the burden on the prosecution to prove
the existence of malice, not simply the intent to kill. Indeed, one of the requirements of
imperfect self-defense as set forth in the pattern instruction is that the “[t]he defendant
intended to kill when he acted.” But this does not make such a defendant guilty of
attempted murder. To the contrary, a defendant acting in imperfect self-defense cannot
be convicted of attempted murder because murder requires malice, and express malice
requires “a deliberate intention unlawfully to take away the life of a fellow creature.”
(Pen. Code, § 188.) A defendant who intends to kill in imperfect self-defense does not do
so “unlawfully” within the meaning of Penal Code section 188. (Elmore, supra,
59 Cal.4th at pp. 132-133.)
       The Attorney General correctly notes that the trial court never instructed the jury
on the meaning of malice. Indeed, the word “malice” appears nowhere in the trial court’s
instructions. But in modifying CALCRIM No. 3428, the pattern instruction on mental
disabilities, the court substituted the phrase “intent to kill” in place of the phrase “malice
aforethought,” the latter of which appears expressly in the pattern instruction. As noted
above, these two phrases are not always equivalent.
       The Attorney General further contends the instructions were correct because the
trial court instructed the jury, when considering whether defendant had the state of mind
required for imperfect self-defense, to “consider all the circumstances as they were
                                              16
known and appeared to the defendant.” “It is well established in California that the
correctness of jury instructions is to be determined from the entire charge of the court, not
from a consideration of parts of an instruction or from a particular instruction.” (People
v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on other grounds by People v. Reyes
(1998) 19 Cal.4th 743.) If the charge as a whole is ambiguous, we consider whether
there is a “reasonable likelihood” the jury misapplied the instruction. (Middleton v.
McNeil (2004) 541 U.S. 433, 437.)
       Here, to the extent there was any ambiguity, there is no reasonable likelihood the
jury understood the given instructions to mean it could consider defendant’s mental
disabilities in assessing his belief in the need for self-defense. While the court instructed
the jury to consider “circumstances as they were known and appeared” to the defendant,
this did not allow the jury to consider whether his perceptual or sensory processing
disabilities made it more likely that self-defense would appear to be necessary to him. By
contrast, the erroneous instruction explicitly limited the jury’s consideration of mental
disabilities to the issue of whether he intended to kill. The court’s instruction was
therefore erroneous.
       The Attorney General also contends defendant was not entitled to any instruction
on imperfect self-defense because the evidence did not support it. She argues that
imperfect self-defense can only be supported by a true mistake of fact, not mental
disabilities. For this proposition she relies on Elmore, supra, 59 Cal.4th 121.
       In Elmore, the court held that a defendant who acts based solely on a delusional
belief in the need for self-defense is not entitled to a jury instruction on imperfect self-
defense. The court distinguished a delusional belief from a true mistake of fact: “A
defendant who makes a factual mistake misperceives the objective circumstances. A
delusional defendant holds a belief that is divorced from the circumstances. The line
between mere misperception and delusion is drawn at the absence of an objective
correlate. A person who sees a stick and thinks it is a snake is mistaken, but that
                                              17
misinterpretation is not delusional. One who sees a snake where there is nothing
snakelike, however, is deluded. Unreasonable self-defense was never intended to
encompass reactions to threats that exist only in the defendant’s mind.” (Id. at p. 137.)
The Attorney General argues that Elmore precludes any instruction on imperfect self-
defense here because, if defendant’s asserted belief in the need for self-defense was a
consequence of his mental disabilities, then such a belief was necessarily delusional.
       We disagree. We do not read Elmore as precluding imperfect self-defense in any
case where mental disabilities affect the defendant’s beliefs or perceptions. The key
distinction identified in Elmore is the “absence of an objective correlate.” (Elmore,
supra, 59 Cal.4th at p. 137.) Here, defendant claimed he saw Garcia pull a metal
object—which defendant believed to be a gun—out of his waistband. The Attorney
General suggests that such a belief, even if genuine, must have been purely delusional
because no other witness saw Garcia make such a motion, and no gun or gun-like object
was found on Garcia. But a single witness, even if not inherently credible, may provide
sufficient evidence to establish a fact. (People v. Zavala (2005) 130 Cal.App.4th 758,
766, citing People v. Chavez (1985) 39 Cal.3d 823, 831; People v. Davis (1966)
241 Cal.App.2d 51, 54.) Based on defendant’s statements, the jury reasonably could
have inferred that Garcia actually made some threatening motion or pulled out a metallic
object, such as a cell phone, from his waistband. Whether defendant’s statements were
sufficiently credible or his beliefs purely delusional were questions of fact for the jury to
decide. Elmore does not establish a heightened evidentiary standard requiring
corroborating evidence independent of defendant’s statements to show his beliefs were
not purely delusional.
       For these reasons, the trial court erred by precluding the jury from considering
evidence of defendant’s mental disabilities in deciding whether he harbored the state of
mind required for imperfect self-defense. After carefully reviewing the record, however,
we conclude this error was not prejudicial.
                                              18
         5. The Instructional Error Did Not Prejudice Defendant
         We review the possibility of prejudice under the standard set forth in Watson,
supra. Under this standard, we conclude it is not reasonably probable the jury would
have reached an outcome more favorable to defendant in the absence of the instructional
error.
         As the Attorney General points out, the sole evidence supporting defendant’s
claim of self-defense consisted of his own self-serving statements. The defense presented
no evidence to corroborate defendant’s version of events. To the contrary, every other
witness who saw defendant’s interactions with Garcia on the night of the shooting
testified that Garcia did nothing to threaten defendant. No other witness saw defendant
make any threatening movement before defendant shot him, and there was no evidence of
any gun, weapon, or weapon-like object found on Garcia’s person after the shooting.
         Furthermore, defendant lied multiple times in the course of his statement to the
police. He initially denied being present at the party. He further lied about Ruiz’s
conduct following the shooting. It is therefore not reasonably likely the jury would have
credited defendant’s claims of self-defense while rejecting the prosecution’s evidence to
the contrary. Absent defendant’s self-serving claims, the defense presented no evidence
to support a theory of self-defense. Thus, even if the jury had been allowed to consider
evidence of defendant’s mental disabilities in assessing his state of mind for imperfect
self-defense, it is not reasonably probable the jury would have reached an outcome more
favorable to him. We therefore conclude defendant was not prejudiced by the
instructional error.
   B. Asserted Carter Error
         Defendant contends the trial court erred by allowing the prosecution to present the
testimony of a firearms expert in rebuttal to testimony by the defendant’s expert
psychologist. The Attorney General argues that the firearm expert’s testimony


                                              19
constituted proper rebuttal. We conclude the trial court did not abuse its discretion by
allowing the firearm expert to testify in rebuttal.
       1. Legal Principles
       During a trial, after the prosecution and defense have offered evidence in support
of their cases, “[t]he parties may then respectively offer rebutting testimony only, unless
the court, for good reason, in furtherance of justice, permit them to offer evidence upon
their original case.” (Pen. Code, § 1093, subd. (d).) This restriction serves three
purposes: (1) to ensure the orderly presentation of evidence so the trier of fact is not
confused; (2) to prevent the prosecution from unduly magnifying certain evidence by
dramatically introducing it late in the trial; and (3) to avoid unfair surprise to the
defendant from sudden confrontation with an additional piece of crucial evidence.
(People v. Carter (1957) 48 Cal.2d 737, 753 (Carter).) “Thus proper rebuttal evidence
does not include a material part of the case in the prosecution’s possession that tends to
establish the defendant’s commission of the crime. It is restricted to evidence made
necessary by the defendant’s case in the sense that he [or she] has introduced new
evidence or made assertions that were not implicit in his [or her] denial of guilt.” (Id. at
pp. 753-754.) This restriction applies only to crucial or material evidence that properly
belongs in the prosecution’s case-in-chief. (People v. Friend (2009) 47 Cal.4th 1, 44.)
“The decision to admit rebuttal evidence rests largely within the discretion of the trial
court and will not be disturbed on appeal in the absence of demonstrated abuse of that
discretion.” (People v. Young (2005) 34 Cal.4th 1149, 1199.)
       2. Admission of Lamb’s Testimony Was Not an Abuse of Discretion
       Defendant put forth the expert testimony of Dr. Peery, summarized above in
Section I.A.8.a., to establish the nature and degree of defendant’s mental disabilities, as
well as their effect on his state of mind at the time of the shooting. On cross-
examination, Dr. Peery opined about the effect of defendant’s mental disabilities on his
motor skills and how they would have affected his ability to draw a gun in reaction to a
                                              20
threatening movement by Garcia. In response to questioning about whether defendant’s
disabilities would have negatively affected his ability to draw a gun quickly, Dr. Peery
drew a distinction between physical motor skills and the type of perceptual disabilities
suffered by defendant. The prosecution then proffered the testimony of firearms expert
Ronald Lamb, summarized above in Section I.A.9., concerning the length of time
required to draw and fire a gun in self-defense. The trial court sua sponte raised the issue
of whether Lamb’s testimony constituted proper rebuttal. In response, the prosecution
identified the above testimony by Dr. Peery as providing a proper basis for the proffered
rebuttal testimony.
       Defendant disputed the prosecution’s characterization of Dr. Peery’s opinions and
objected to Lamb’s testimony on this and other grounds. The court overruled defendant’s
objections and found Lamb’s testimony “appropriate for rebuttal purposes in light of the
testimony offered by Dr. Peery.” The trial court did not abuse its discretion in so ruling.
       First, Dr. Peery’s testimony included “new evidence” and “assertions that were not
implicit” in defendant’s initial denial of guilt. (Carter, supra, 48 Cal.2d at pp. 753-754.)
Second, Lamb’s testimony was not so central to the prosecution’s case that it necessarily
should have been included in the prosecution’s case-in-chief. Third, there was no danger
of confusing the jury by presenting the evidence on rebuttal. And fourth, the introduction
of Lamb’s testimony on rebuttal did not “unduly magnify” its importance or create
“unfair surprise” by presenting a crucial piece of evidence at the last moment. (Id. at
p. 753.) We thus conclude this claim is without merit.

   C. Trial Counsel’s Failure to Seek Exclusion of Defendant’s Statements to Police
      Based on an Incomplete Miranda Warning
       In their initial interview of defendant after the shooting, police informed defendant
of his Miranda rights by stating, in relevant part: “Anything you say may be used in
court, do you understand that?” This admonition did not warn defendant that his


                                             21
statement could be used against him, but in all other respects the warning complied with
Miranda.
       Defendant claims the above-quoted portion of the warning was constitutionally
defective because police did not warn him that his statement to police could be used
against him in court. But trial counsel did not assert this omission as a basis for
exclusion, even though she moved in limine to exclude defendant’s statement on other
grounds.
       The trial court ultimately denied defendant’s motion to exclude his statement to
police. Defendant now contends trial counsel provided ineffective assistance by failing
to seek exclusion of his statement on the ground that the Miranda warning was defective.
The Attorney General argues that any deviation from the usual Miranda warnings was
not significant enough to require reversal because the given warnings adequately advised
defendant of his privilege against self-incrimination.
       1. Legal Principles
       The United States Supreme Court established the requirement for the
administration of warnings regarding a person’s privilege against self-incrimination in the
seminal case of Miranda, supra. The court held: “The warning of the right to remain
silent must be accompanied by the explanation that anything said can and will be used
against the individual in court. This warning is needed in order to make him [or her]
aware not only of the privilege, but also of the consequences of forgoing it. It is only
through an awareness of these consequences that there can be any assurance of real
understanding and intelligent exercise of the privilege. Moreover, this warning may
serve to make the individual more acutely aware that he [or she] is faced with a phase of
the adversary system—that he [or she] is not in the presence of persons acting solely in
his [or her] interest.” (Miranda, supra, 384 U.S. at p. 469.) Miranda warnings, however,
need not be given “in the exact form described in that decision.” (Duckworth v. Eagan
(1989) 492 U.S. 195, 202.) “Thus, a reviewing court need not examine a Miranda
                                             22
warning for accuracy as if construing a legal document, but rather simply must determine
whether the warnings reasonably would convey to a suspect his or her rights as required
by Miranda.” (People v. Samayoa (1997) 15 Cal.4th 795, 830.)
       To demonstrate ineffective assistance of counsel, a defendant must first show
counsel’s performance was deficient because counsel’s representation fell below an
objective standard of reasonableness under prevailing professional norms. (Strickland v.
Washington, supra, 466 U.S. at pp. 687-688.) Second, he or she must show prejudice
flowing from counsel’s performance or lack thereof. (Id. at pp. 691-692.) “The
defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.” (Id. at p. 694.)

       2. Defendant Was Not Prejudiced by any Failure of his Trial Counsel to Seek
          Exclusion of his Statement to Police
       We first consider defendant’s argument that the Miranda warning was
constitutionally defective. For this proposition, defendant relies on People v. Bradford
(2008) 169 Cal.App.4th 843, and United States v. Tillman (6th Cir. 1992) 963 F.2d 137.
In both cases, police neglected to inform the defendant that his statement could be used
against him. And in both cases, the police failed to warn the defendant that his statement
could be used in court. Neither case is squarely on point because the police here warned
defendant his statements “may be used in court,” but without warning defendant his
statements could be used against him. The Attorney General contends the wording of the
admonishment, while incomplete, was sufficient to convey the full substance of the
warning to defendant.
       Arguably, a warning that one’s statement “may be used in court” reasonably
conveys the notion that one’s statement can be used against him or her. This would be
especially true where, as here, the interview is administered by police who have arrested

                                            23
the interviewee and taken him or her into custody at a jailhouse. On the other hand,
police commonly use the tactic of implying that making a statement to them about an
incident under investigation might benefit the declarant in some fashion. For example,
the police here repeatedly told defendant that other witnesses were blaming him, and they
wanted to “give [him] a chance” to “explain [his] side of it.” They further told defendant
that if he failed to give his version of events, “[t]hey’re gonna see you as a coldblooded
dude who’s gonna kill somebody,” and they claimed they did not want to see defendant
“flush [his] life down the toilet.” Arguably, defendant might have been less susceptible
to these tactics if police had first made clear that defendant’s statements were going to be
used against him—i.e., “that he [was] faced with a phase of the adversary system—that
he [was] not in the presence of persons acting solely in his interest.” (Miranda, supra,
384 U.S. at p. 469.)
       But even assuming the warning was constitutionally defective, and assuming
counsel should have sought to exclude the statement on that ground, defendant cannot
show he was prejudiced by counsel’s failure to do so. Defendant’s admission to the
shooting was not central to the prosecution’s case. Abundant evidence established that
defendant was the shooter. Three witnesses testified to the facts supporting his identity
as the shooter, and his immediate flight from the scene with the assistance of Ruiz also
pointed to that conclusion. Also, defendant made a phone call the morning after the
shooting warning a witness not to talk to the police and asking whether the victim was
still alive, five spent shell casings were found in Ruiz’s purse, and police found a receipt
showing the ammunition was purchased just hours before the party. Furthermore, as the
Attorney General points out, without his statement to the police, defendant had no
evidence to support his claim of self-defense. For these reasons, we conclude it is not
reasonably probable the jury would have reached a more favorable verdict even if
defendant’s statement to police had been excluded. Absent a showing of prejudice under
Strickland, this claim is without merit.
                                             24
   D. Imposition of a Full Consecutive Term for the Assault Conviction
       Defendant contends the trial court erred by imposing a full consecutive three-year
term on Count Three, the assault conviction. The Attorney General concedes the merit of
this claim. We agree with the parties and accept the Attorney General’s concession.
       As set forth above in Section I.B., the trial court imposed the upper term of nine
years for Count Two, the attempted murder conviction. Based on the firearm
enhancement, the court also imposed a term of 25 years to life on that count. The court
characterized this as “a total indeterminate term of 34 years to life.” On Count Three, the
court imposed the middle term of three years. The court then ordered the term of
34 years to life on Count Two to run consecutive to the three-year term on Count Three.
Defendant contends the imposition of a full consecutive term on Count Three violated
Penal Code section 1170.1 (Section 1170.1), which required the court to impose one-third
the middle term on that count. We agree.
       Section 1170.1 governs sentencing for multiple felony offenses punishable by a
determinate low, middle, or upper term. (People v. Neely (2009) 176 Cal.App.4th 787,
797.) The trial court first selects a base term—either the low, middle or upper term—for
each offense. (Id. at p. 798; Pen. Code, § 1170; Cal. Rules of Court, rule 4.405(2).) If a
consecutive sentence is merited, the court designates the offense with the greatest
selected base term as the principal term, including any additional terms for applicable
enhancements. (Pen. Code, § 1170.1, subd. (a).) The court then imposes the full base
term for the principal term offense followed by one-third the middle term for any
consecutive term. (Ibid.)
       It appears the trial court and the probation report categorized the term of 34 years
to life on Count Two as an indeterminate sentence and, therefore, a term not subject to
Section 1170.1. But that section applied to sentencing on all three counts based on the
determinate term of nine years for the attempted murder conviction, notwithstanding the
indeterminate term imposed for the firearm enhancement. “[A]n indeterminate
                                             25
enhancement does not merge with the determinate offense to make the entire term
encompassed by the indeterminate sentencing law.” (People v. Sanders (2010)
189 Cal.App.4th 543, 558, citing People v. Montes (2003) 31 Cal.4th 350, 358-359.)
“That is, the sentence imposed for the offense does not merge with the sentence on the
enhancement. [Citation.] In legal contemplation, the count and the enhancement remain
distinct.” (Ibid.)
       The trial court should have sentenced defendant on all counts as required by
Section 1170.1, under which the punishment for any term consecutive to the base term
should have consisted of one-third the applicable middle term. Accordingly, we will
reverse and remand for resentencing.
                                    III.   DISPOSITION
       The judgment is reversed and the matter is remanded for resentencing in
accordance with this opinion.




                                           26
                         _______________________________
                         Márquez, J.




WE CONCUR:




_______________________________
 Rushing, P.J.




_______________________________
 Premo, J.




No. H041157
The People v. Ocegueda
Trial Court:                             Santa Cruz County
                                         Superior Court No.: F22019

Trial Judge:                             The Honorable Timothy R. Volkmann



Attorney for Defendant and Appellant     Paul Couenhoven
José De Jesús Ocegueda:                  under appointment by the Court of
                                         Appeal for Appellant




Attorneys for Plaintiff and Respondent   Kamala D. Harris,
The People:                              Attorney General

                                         Gerald A Engler,
                                         Chief Assistant Attorney General

                                         Jeffrey M. Laurence,
                                         Senior Assistant Attorney General

                                         Catherine A. Rivlin,
                                         Supervising Deputy Attorney General

                                         Gregg E. Zywicke
                                         Deputy Attorney General




H041157
The People v. Ocegueda
