P. v. Garcia

Filed 12/28/16 P. v. Garcia CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 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has not been certified for publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent,
v.
LUIS ERASMO GARCIA,
Defendant and Appellant.
B259708
(Los Angeles County
Super. Ct. No. YA080092)
APPEAL from a judgment of the Superior Court of Los
Angeles County. Steven R. Van Sicklen, Judge. Affirmed.
Alan Siraco, under appointment by the Court of Appeal, for
Defendant and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Senior
Assistant Attorney General, Colleen M. Tiedemann and Michael
C. Keller, Deputy Attorneys General, for Plaintiff and
Respondent.
* * * * * *

-- 1 of 14 --

2
A jury convicted Luis Erasmo Garcia (defendant) of three
counts of first degree, premeditated murder and one count of
attempted premeditated murder after he shot and killed three
rival gang members and shot and injured a friend’s cousin at a
streetside car show. On appeal, defendant argues that the trial
court should have instructed the jury on the concepts of perfect
and imperfect self-defense/defense of others, that the trial court
should not have instructed the jury on a “kill zone” theory, and
that there was insufficient evidence that the shootings were
premeditated. We conclude there was no individual or
cumulative error, and affirm.
FACTS AND PROCEDURAL BACKGROUND
I. Facts
On a night in August 2008, approximately 300 to 500
people gathered for an impromptu car show at the intersection of
Western Avenue and Imperial Highway in South Los Angeles.
Three members of the “South Los” street gang showed up, loudly
proclaiming their gang affiliation and boisterously criticizing the
multi-racial make-up of the crowd. Soon thereafter, someone
fired a hail of four to eight bullets at the compact area where all
three of the South Los gang members were standing next to one
another. Some of the bullets struck and killed all three South
Los gang members, and one bullet stuck Jose Garcia (Jose)1 in
the chest but did not kill him.
Although they recanted some of their prior statements
while testifying, several persons called as witnesses had
1 Because defendant and Jose Garcia share the same last
name, we use Jose’s first name for clarity. We mean no
disrespect. We also note that the two men are unrelated.

-- 2 of 14 --

3
previously given statements naming defendant as the shooter.
Jose and his cousin (who was defendant’s friend) each identified
defendant as the shooter. Defendant later apologized to Jose for
shooting him. And defendant bragged to others that he “dropped”
“three [South Los members] in one.”
II. Procedural Background
The People charged defendant with the first degree,
premeditated murders of the three South Los gang members
(Penal Code, § 187, subd. (a)),2 and with the attempted
premeditated murder of Jose (§§ 187, subd. (a) & 664). The
People further alleged that defendant personally discharged a
firearm (§ 12202.53, subd. (d)) and committed the crimes at the
direction of, for the benefit of, or in association with a criminal
street gang (§ 186.22, subd. (b)(1)(C)).
The trial court instructed the jury on first and second
degree murder, and, as to the attempted murder count, on “kill
zone” liability. The jury convicted defendant of three counts of
first degree, premeditated murder and of attempted premeditated
murder; it also found true the firearm and gang allegations.
For each first degree murder, the trial court imposed a
prison sentence of life without the possibility of parole to be
followed by 25 years for the firearm enhancement. The court
imposed each sentence consecutively. The court also imposed a
further, consecutive life sentence plus 25 years for the attempted
premeditated murder count.
Defendant filed a timely notice of appeal.
2 All further statutory references are to the Penal Code
unless otherwise indicated.

-- 3 of 14 --

4
DISCUSSION
I. Instructional Errors
Defendant argues that the trial court erred in instructing
the jury because (1) the court did not instruct on perfect self-
defense/defense of others or on the lesser included offense of
voluntary manslaughter due to imperfect self-defense/defense of
others, and (2) the court instructed that defendant could be liable
for Jose’s attempted murder on a “kill zone” theory. We
independently review the trial court’s jury instructions. (People
v. Cruz (2016) 2 Cal.App.5th 1178, 1183.)
A. Self-defense/defense of others
A person has engaged in perfect self-defense/defense of
others—and is not guilty of any homicide—if he kills a person
with “‘an honest and reasonable belief in the need to defend’”
himself or others from great bodily injury or death. (People
v. Valenzuela (2011) 199 Cal.App.4th 1214, 1227 (Valenzuela),
quoting People v. Flannel (1979) 25 Cal.3d 668, 674-675; § 197,
subd. 3.) The person’s honest, subjective belief negates the
malice necessary to make the homicide murder, and “the
reasonableness of th[at] belief . . . justifi[es] . . . the killing”
entirely and renders it noncriminal. (People v. Rodriguez (1997)
53 Cal.App.4th 1250, 1269; § 187, subd. (a) [defining “murder” as
an “unlawful killing . . . with malice aforethought”]; § 188
[defining “malice”].) A person has engaged in imperfect self-
defense/defense of others if he kills a person with an “actual but
unreasonable belief that he” or someone else “is in imminent
danger of great bodily injury or death.” (People v. Simon (2016)
1 Cal.5th 98, 132 (Simon).) As with perfect self-defense/defense
of others, the person’s actual, subjective belief negates the malice
necessary to make the homicide murder; however, because that

-- 4 of 14 --

5
belief is unreasonable, the homicide is still a crime but a lesser
form of intentional homicide that lacks malice—namely,
voluntary manslaughter. (Ibid.) In this respect, imperfect self-
defense/defense of others is “not an affirmative defense” as much
as it is a “‘shorthand description of one form of [the lesser
included offense of] voluntary manslaughter.’” (Valenzuela, at
p. 1231, quoting People v. Barton (1995) 12 Cal.4th 186, 200;
Simon, at p. 132.)
A trial court’s duty to instruct on self-defense/defense of
others is not tied to whether a defendant requests such
instructions; instead, it turns on whether substantial evidence
supports those instructions. For an affirmative defense like
perfect self-defense/defense of others, a trial court has a sua
sponte duty to instruct if (1) “‘it appears the defendant is relying
on such a defense,’” or (2) “‘there is substantial evidence
supportive of such a defense and the defense is not inconsistent
with the defendant’s theory of the case.’” (People v. Boyer (2006)
38 Cal.4th 412, 469, superseded on other grounds by section 22.)
For a lesser included offense like voluntary manslaughter based
on imperfect self-defense/defense of others, a trial court has a sua
sponte duty to instruct if “there is substantial evidence that
would absolve the defendant from guilt of the greater, but not the
lesser, offense.” (Simon, supra, 1 Cal.5th at p. 132.) In both
instances, evidence is substantial if a reasonable jury could find,
from the evidence presented at trial, that the elements of the
pertinent self-defense/defense of others doctrine have been
established. (People v. Breverman (1998) 19 Cal.4th 142, 159.)
For these purposes, we review the evidence at trial “‘in the light
most favorable to the defendant.’” (People v. Wright (2015) 242

-- 5 of 14 --

6
Cal.App.4th 1461, 1483 [as to lesser included offenses]; People v.
Mentch (2008) 45 Cal.4th 274, 290 [as to affirmative defenses].)
1. Evidence (viewed in the light most favorable to
defendant)
Although Jose flatly denied—and another witness
confirmed—that Jose never had any altercation with the three
South Los gang members, and although Jose’s cousin had not
mentioned being involved in a fistfight during his prior police
interview or during his preliminary hearing testimony, Jose’s
cousin testified at trial that (1) he saw one of the three South Los
members push Jose, (2) he rushed over to “defend” Jose, (3) he
swung at one of the three South Los members who had swung at
him but missed, but ended up only “tapp[ing]” him on the chin.
The cousin also testified that the guy he “tapped” had a bottle in
his hand, but had set it on the ground to take off his shirt at the
time the gunshots were fired. The medical examiner testified
that one of the three South Los members had an abrasion on his
chin (as well as other places) that could have been caused by his
fall to the ground or by a fight. The cousin also stated he had
been friends with defendant for two to 12 months prior to the
shooting.
2. Analysis
The trial court did not err in refusing to instruct the jury on
the affirmative defense of perfect self-defense/defense of others or
on the lesser included offense of voluntary manslaughter due to
imperfect self-defense/defense of others. As noted above, both
perfect and imperfect self-defense/defense of others require proof
that the defendant had an “actual,” “honest” and subjective belief
in the need to defend himself or others from death or great bodily
injury. (Valenzuela, supra, 199 Cal.App.4th at pp. 1230-1231;
Simon, supra, 1 Cal.5th at p. 132.) However, there is no evidence

-- 6 of 14 --

7
that defendant saw or otherwise perceived that Jose’s cousin or,
for that matter, Jose, were engaged in an altercation with any of
the South Los gang members. There were hundreds of people at
the car show, and there was no evidence that Jose or his cousin
were even in defendant’s line of sight prior to the shooting. Jose’s
cousin was the only person who testified to any altercation with
the South Los members, and the cousin never testified that
defendant was nearby or able to see what was happening. Jose
testified that defendant was at some point eight feet away from
him, but Jose also testified there was no altercation and that
there were a number of people in between himself and defendant.
In sum, there was no evidence indicating that defendant was
looking at Jose or his cousin at the time the two South Los
members were shoving Jose or swinging at Jose’s cousin.
Without such evidence, defendant could not have fired the shots
with the intent to defend them or anyone else. There was also no
evidence that the shove or the missed punch caused defendant to
subjectively perceive that Jose or his cousin were in imminent
danger of great bodily injury or death. (Simon, at p. 132.)
There is a further, independent reason why the trial court
properly declined to instruct on perfect self-defense/defense of
others. A defendant’s belief is reasonable—and perfect self-
defense/defense of others is available—only if “lethal force is
necessary to prevent death or great bodily injury.” (People
v. Uriarte (1990) 223 Cal.App.3d 192, 197.) A defendant cannot
invoke perfect self-defense/defense of others if he is the one who
escalates a confrontation from one involving non-lethal force to
one involving lethal force. (People v. Clark (1982) 130 Cal.App.3d
371, 380 [“deadly force or force likely to cause great bodily injury
may be used only to repel an attack which is in itself deadly or

-- 7 of 14 --

8
likely to cause great bodily injury”]; CALJIC No. 5.31 [“[a]n
assault with the fists does not justify the person being assaulted
in using a deadly weapon in self-defense unless that person
believes and a reasonable person in the same or similar
circumstances would believe that the assault is likely to inflict
great bodily injury”].) Here, the South Los members and Jose’s
cousin were engaged in a fistfight, and the South Los member
who was “armed” with a bottle put it down to fight the cousin;
defendant’s immediate resort to the lethal force of a gun therefore
forecloses the availability of perfect self-defense/defense of others.
Defendant raises three sets of arguments in response.
First, he asserts that a defendant is not required to take the
stand at trial in order to establish the existence of his actual,
subjective belief in the need to use deadly force to defend others.
Defendant is right. (E.g., People v. De Leon (1992) 10
Cal.App.4th 815, 824.) But with or without a defendant’s
testimony, there still “must be evidence from which the jury could
find that [defendant] actually had such a belief.” (People
v. Viramontes (2001) 93 Cal.App.4th 1256, 1262.) Here, for the
reasons explained above, there is no evidence that defendant
knew Jose and his cousin were in a fistfight and thus no evidence
that defendant subjectively believed he needed to defend them.
Second, defendant contends that the timing of the shooting
(that is, not immediately upon the arrival of the three South Los
members at the car show) as well as defendant’s decision to be
parsimonious with his bullets (that is, shooting only four to eight)
shows that he was only trying to stop a fight; further, he argues,
his gang rivalry with South Los does not preclude a finding that
he acted to defend Jose and Jose’s cousin. Significantly, these
arguments do not cure the evidentiary deficiency outlined above.

-- 8 of 14 --

9
Moreover, there was no evidence as to when defendant first
became aware of the three South Los members vis-à-vis when he
opened fire. Additionally, the fact that defendant shot one of the
South Los members in the back and shot another in the head at
point-blank range refutes defendant’s contention that he was
merely aiming to stop the fight rather than to kill.
Lastly, defendant argues any inconsistency between his “it
wasn’t me” defense at trial and “it was me, but I acted to defend
others” on appeal is not a reason to deny him these instructions.
We need not address this argument because, as explained above,
he did not adduce substantial evidence to support an instruction
on perfect or imperfect self-defense/defense of others.
B. Kill zone instruction
As a general rule, “‘[a]ttempted murder requires the
specific intent to kill’” a specific person. (People v. Stone (2009)
46 Cal.4th 131, 136 (Stone), quoting People v. Superior Court
(Decker) (2007) 41 Cal.4th 1, 7.) Consequently, a defendant who
intends to kill one person, but shoots a second person instead, is
not guilty of attempted murder of the second person. (People
v. Bland (2002) 28 Cal.4th 313, 331 [“transferred intent does not
apply to attempted murder”].) However, because “‘a primary
intent to kill a specific target does not rule out a concurrent
intent to kill others’” (Stone, at p. 137, quoting Bland, at p. 331,
fn. 6), a defendant who “specifically intend[s] to kill every single
person in the area in which [his] primary target [is] located”—in
the so-called “kill zone”—can be liable for the attempted murder
of anyone in that area. (People v. McCloud (2012) 211
Cal.App.4th 788, 803 (McCloud); People v. Cardona (2016) 246
Cal.App.4th 608, 615, review granted July 27, 2016, S234660
(Cardona).)

-- 9 of 14 --

10
The trial court properly gave the instruction that defendant
could be liable for Jose’s attempted murder on a kill zone theory.
Jose was standing in the compact area alongside the three South
Los members at the time the shots were fired into that area, and
defendant fired enough bullets—four to eight, for just three
intended victims—to kill everyone in that area. (Cf. People v.
Perez (2010) 50 Cal.4th 222, 232 (Perez) [“indiscriminate[ly] firing
. . . a single shot at a group of persons, without more, does not
amount to an attempted murder of everyone in the group”].)
These facts mirror those in People v. Falaniko (2016) 1
Cal.App.5th 1234, 1243 (Falaniko), where the court held that a
“defendant who targets a specific person by firing a flurry of
bullets into a crowd may . . . be convicted of attempted murder if
the evidence shows he intended to kill everyone in the victim’s
vicinity in order to kill the intended victim.”
Defendant responds with two arguments. First, he argues
that a “kill zone” can only exist in an enclosed area (such as a
structure or a car), and not in an open area such as a crowd.
Falaniko refutes this argument.
Second, defendant contends that Cardona and McCloud
dictate a result in his favor. But these cases are distinguishable
on their facts. In Cardona, the court held that the facts were “a
poor fit for the kill zone theory” because the defendant in that
case had tried to rob someone with a gun and then fired the gun
when that person pulled a knife to resist the robbery.
Importantly, “no witness testified that [the defendant] sprayed
everyone near [his intended victim] with gunfire.” (Cardona,
supra, 246 Cal.App.4th at pp. 614-615, review granted.) In
McCloud, the court held that a defendant who shot 10 bullets
into a crowd could not be held liable for 46 counts of attempted

-- 10 of 14 --

11
murder on a kill zone theory because he did not fire enough
bullets to kill everyone in the area. (McCloud, supra, 211
Cal.App.4th at pp. 799-801; accord, Stone, supra, 46 Cal.4th at
pp. 136, 138 [same, for single shot into crowd of 10 people]; Perez,
supra, 50 Cal.4th at p. 232 [single shot into group of eight
people].)
II. Sufficiency of the Evidence
Defendant contends there was insufficient evidence to
support the jury’s findings that he committed the murders and
attempted murder in a premeditated manner. For the three
counts of first degree premeditated murder and the single count
of attempted premeditated murder, the People were required to
prove beyond a reasonable doubt that defendant acted with
premeditation and deliberation. (§ 189 [defining first degree
murder to include “any other kind of willful, deliberate, and
premeditated killing”]; § 664, subd. (a) [prescribing life sentence
for attempted murder that is “willful, deliberate, and
premeditated”].) “‘“Deliberation” refers to careful weighing of
considerations in forming a course of action; “premeditation”
means thought over in advance.’” (People v. Sandoval (2015) 62
Cal.4th 394, 424, quoting People v. Koontz (2002) 27 Cal.4th
1041, 1080.) What matters is “‘the extent of the [defendant’s]
reflection,’” not the “‘duration of time’” in which he undertakes it.
(Ibid.) Our Supreme Court has identified three guideposts
bearing on whether a defendant has acted with premeditation
and deliberation: (1) the defendant’s motive; (2) any planning
activity; and (3) the manner of killing. (People v. Cage (2015) 62
Cal.4th 256, 276, citing People v. Anderson (1968) 70 Cal.2d 15,
26-27.) In evaluating whether there is sufficient evidence to
sustain a jury’s findings of premeditation and deliberation, we

-- 11 of 14 --

12
examine whether the record, viewed in the “light most favorable
to the” verdicts, contains “evidence which is reasonable, credible,
and of solid value from which a rational trier of fact could find
[the] defendant guilty beyond a reasonable doubt.” (Cage, at p.
275.)
A. Evidence (viewed in the light most favorable to
the verdict)
Defendant is a member of the Gardena 13 street gang. One
of Gardena 13’s rivals is the South Los gang. Defendant
“usually” carries a nine-millimeter handgun on his person. On
the night of the shootings, Jose’s cousin saw defendant with a
nine-millimeter handgun, and casings from a nine-millimeter
handgun were recovered from the scene of the shooting.
Defendant may have walked back to his car to retrieve the gun
prior to the shooting. One of the South Los members died from a
gunshot wound to the chest; another had two gunshot wounds,
including one in his back; and the third died from a gunshot
wound to the head from point-blank range.
B. Analysis
Looking to the three guideposts our Supreme Court has
identified, there was substantial evidence from which a rational
jury could conclude that defendant acted with premeditation and
deliberation in shooting the three South Los members and Jose.
As defendant concedes, he had a motive to shoot and kill his gang
rivals, which supports a finding that he acted with premeditation
and deliberation. Defendant also planned to have a loaded gun at
the ready—either by carrying it on his person or by returning to
his car to retrieve it. (Accord, People v. Lee (2011) 51 Cal.4th 620,
636 [bringing “a loaded handgun . . . indicat[es]” that a defendant
was “consider[ing] the possibility of a violent encounter”]; In re
Gray (2007) 151 Cal.App.4th 379, 407-409 [retrieving a weapon is

-- 12 of 14 --

13
evidence of premeditation].) And defendant’s decision to shoot
one of the South Los members at point-blank range in the head
and another in the back indicates that defendant intended to
execute these men. (Accord, In re Gray, at pp. 408-409
[“execution-style” killing is evidence of premeditation].) This
would constitute substantial evidence of premeditation and
deliberation outside the gang context. It is most certainly
sufficient “in the context of a gang shooting,” where “the time
between the sighting of the victim and the actual shooting is very
brief.” (People v. Sanchez (2001) 26 Cal.4th 834, 849.)
Defendant makes four arguments to the contrary. First, he
argues that there was no evidence that he was looking for
trouble. But a long-gestating plan to kill is not required. (See
People v. Memro (1995) 11 Cal.4th 786, 863 [“‘“[t]houghts may
follow each other with great rapidity and cold, calculated
judgment may be arrived at quickly”’”].) Second, defendant
contends that Jose and his cousin dispute that defendant went to
his car to retrieve his gun. This is of no concern because we
disregard conflicting evidence when evaluating its substantiality
(People v. Hernandez (2000) 22 Cal.4th 512, 526), and because, as
noted above, defendant’s act in carrying a loaded firearm with
him on his person is also evidence of planning. Third, defendant
asserts that firing a gun at close range is not evidence of prior
planning and cites People v. Ratliff (1986) 41 Cal.3d 675, 695.
The issue in Ratliff, however, was whether firing a gun at close
range established a defendant’s intent to kill, not whether the
killing in that case was premeditated (id. at pp. 695-696);
Ratliff’s analysis is accordingly unhelpful. Lastly, defendant
suggests that the fact he shot Jose indicates that the killing was
unplanned. But it just as likely suggests that he was a bad shot

-- 13 of 14 --

14
or that he did not care whom he shot or killed in the course of
killing the three South Los members. Because we draw all
reasonable inferences in favor of the verdict (People v. Wong
(2010) 186 Cal.App.4th 1433, 1444), we need not—and, indeed,
cannot—draw the inference defendant requests.
III. Cumulative Error
Because we reject defendant’s individual claims of error, we
necessarily conclude there was no cumulative error. (Accord,
People v. McWhorter (2009) 47 Cal.4th 318, 377 [no cumulative
error where no individual error exists].)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
______________________, J.
HOFFSTADT
We concur:
_________________________, Acting P. J.
ASHMANN-GERST
_________________________, J.*
GOODMAN
* Retired judge of the Los Angeles Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

-- 14 of 14 --