P. v. Munoz

Filed 6/7/17 P. v. Munoz CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE LUIS MUNOZ,
Defendant and Appellant.
B265901
(Los Angeles County
Super. Ct. No. BA387718)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Ronald S. Coen, Judge. Affirmed.
John A. Colucci, 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, Margaret E. Maxwell, Supervising
Deputy Attorney General, William H. Shin, Deputy Attorney
General, for Plaintiff and Respondent.

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It is undisputed that defendant and appellant Jose Luis
Munoz (defendant) shot and killed Willie Thornton (Thornton)
early one morning outside defendant’s home. The issue at trial
was why. Defendant presented evidence he killed Thornton in
order to protect his mother and himself. A jury found otherwise
and convicted defendant of first degree murder. We consider
whether reversal is warranted because, among other alleged
errors, the trial court abused its discretion in excluding expert
testimony on “fight or flight” syndrome and the trial court gave
no instruction on whether and how the jury could consider
“antecedent threats” that defendant claimed influenced his
decision to kill Thornton.
BACKGROUND
A. Procedural History
The Los Angeles County District Attorney charged
defendant in a second amended information with murder (Pen.
Code, § 187, subd. (a)),1 second degree robbery (§ 211), and
assault by means likely to produce great bodily injury (§ 245,
subd. (a)(1)), based on events that occurred in August 2011. The
District Attorney further alleged defendant committed all three
offenses for the benefit of, at the direction of, and in association
with a criminal street gang within the meaning of section 186.22,
subdivision (b)(1). Other sentencing enhancements were also
alleged.
1 Undesignated statutory references that follow are to the
Penal Code.

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In 2013, defendant went to trial on the three charges
against him. The jury could not reach a unanimous verdict on
any of the charges, and the judge declared a mistrial.
Defendant was retried on all three counts in 2015.2 The
jury found him guilty of first degree murder (count one) and
assault (count three). It found him not guilty of robbery (count
two). The jury found the gang allegation true as to the assault
charge but not true with respect to the murder.
The court sentenced defendant to 75 years to life on the
murder conviction: 25 years to life for first degree murder,
doubled on account of a prior “strike” conviction, plus another 25
years to life for a section 12022.53, subdivision (d) gun
enhancement found true. The court sentenced defendant to an
additional, consecutive 12 years in prison for the assault
conviction and related enhancements.
B. The Evidence at Trial
1. Defendant’s gang membership
Defendant admitted to police officers in past interactions
that he was a member of the 18th Street gang and went by the
name “Diablo.” He had numerous tattoos associated with 18th
Street, although he had removed some from his neck and chin in
recent years. Defendant also had the letters “BK,” which stood
for “Blood killer,” tattooed on his abdomen.3
2 Different judges presided over the 2013 and 2015 trials, but
the same attorney represented defendant in both.
3 The prosecution’s gang expert, police officer Daniel Garcia,
testified the 18th Street gang did not like “Bloods” because they
were African-American.

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2. Assault of Timothy Smith4
On August 8, 2011, Timothy Smith (Smith), a young
African-American man, was walking to a liquor store with his
girlfriend’s uncle in Los Angeles. Two men pulled up in a truck
alongside the pair, and defendant, whom Smith had never seen
before, exited the vehicle. Defendant said “West Side 18th
Street,” identified himself as “Diablo,” and asked Smith where he
was from. Smith responded he “didn’t bang” and then asked
defendant, “what’s up?” Defendant threw a punch at Smith and
the men began to fight. After Smith fell to the ground, defendant
and his associate stomped on Smith’s head and ribs.
Smith received seven staples and three stitches to close a
wound on his head. When Smith spoke to the police, he told
them his attacker said his name was “Diablo” and that he was a
member of 18th Street. About two weeks later, a police detective
showed Smith a “six-pack” photo array, and Smith identified
defendant as his attacker.
3. Fight with an unidentified Hispanic man
Defendant lived on the 2700 block of Exposition Place in
Los Angeles. The property consisted of a main house in front,
where his mother, Maria Pena (Pena), and two teenage siblings
resided, and a smaller structure in back, where defendant stayed
from time to time. An iron fence ran the length of the property,
separating its front yard and driveway from the sidewalk. Train
tracks ran behind the property.
4 Defendant does not challenge his conviction or sentence for
assaulting Timothy Smith. Our discussion of the facts of the
assault is accordingly brief.

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Witnesses at trial testified that on the afternoon of August
9, 2011, defendant got into an argument, which escalated into a
physical fight, with a Hispanic man who came onto the property.
At some point, defendant ran into the front house where his
sister was home alone, retrieved a kitchen knife, and returned
outside. The two men continued to fight, and defendant stabbed
the other man, who left bleeding. A trail of blood, and a tooth,
were later discovered outside defendant’s home. Defendant ran
to his grandparents’ house, which was in the 2600 block of
Exposition Place on the other side of 7th Avenue; his sister
followed several minutes later.
4. Killing of Willie Thornton
Jonathan Almache (Almache), who was 14 years old at the
time, went to defendant’s house on the evening of August 11,
2011. Defendant told Almache he fought with a Hispanic man a
couple days earlier and the man had threatened to return and
kill him. Defendant showed Almache he was carrying a gun and
wearing a bulletproof vest.
Almache spent the night at defendant’s house, and
defendant asked him to set his cell phone alarm for 4:30 a.m.
When the alarm sounded, defendant went outside and positioned
himself behind the front gate of the property. Defendant’s next-
door neighbor, Estella Mendez (Mendez), was awakened by the
sound of a door opening. She looked out her window and saw
defendant standing in the patio area in front of the main house,
holding a metal object behind his leg. Mendez went back to sleep.
Pena (defendant’s mother) customarily parked her Ford
Explorer on the street outside the house and left for work each
morning around 4:30 a.m. Surveillance video taken from a

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business in the 2900 block of Exposition Place captured footage of
a white Saturn—driven by Thornton—turning from 9th Avenue
onto Exposition Place heading east toward defendant’s house at
approximately 4:34 a.m. The video does not show the stretch of
Exposition Place in front of defendant’s house, but at some point
after passing defendant’s house and Pena’s car, the Saturn made
a u-turn. Pena pulled away from the curb and began driving
west on Exposition Place, toward 9th Avenue, before the Saturn
passed defendant’s house also traveling west.
Defendant, still standing outside, fired two shots at the
Saturn as it passed by his house. One bullet struck Thornton in
the left side of his forehead, killing him. The other bullet hit the
dashboard. After Thornton was shot, the Saturn continued
westbound, sideswiping four cars parked along Exposition Place
until it came to a stop when it ran into a chain-link fence where
Exposition Place runs into 9th Avenue.
When officers arrived shortly after the shooting, a few
people had gathered around the Saturn. Thornton was dead
inside. Both front seats in the white Saturn were reclined.
Thornton’s shirt was unbuttoned, his pants were unbuckled, and
he was wearing a single sock and no shoes. His hands were
“open” and “somewhat down to his knees.” On the driver’s side
floorboard was one shoe and one sock; on the passenger-side
floorboard was the matching shoe and a white cap. There was a
pizza box, a beer can, and a black duffel bag with clothes inside
behind the front passenger seat. The front driver’s side window
and both passenger-side windows were shattered, and the front
and back seats on the passenger side were covered with glass.
A person near the car handed an officer Thornton’s cell
phone. Another cell phone, with a broken faceplate and no

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battery, was found outside, “kind of underneath” the car. The
Saturn was registered to a Lionel Griffin and had no license
plates. Thornton’s wallet contained a California identification
card for someone named Leroy Peterson and a Medicare card for
a Walter Horton. A sample taken from Thornton’s hands showed
the presence of metallic particles consistent with gunshot
residue.5
Thornton, a middle-aged African-American man, lived with
his daughter, Desiree, who was 16 or 17 when he was killed.
Desiree said Thornton was a housepainter and that they were
homeless at the time of his death. She testified that on the night
of August 11, 2011, Thornton left Desiree at her brother’s house,
which Thornton himself left around midnight. Desiree said her
father was either sleeping in the car or with a friend that night,
and that he had had a job about a year earlier in the area where
he was killed.
Police remained in the vicinity of defendant’s home after
Thornton’s killing. That afternoon, they saw a van and a car pull
up to defendant’s home. Almache got into the car, which was
driven by Daniel Munoz (Daniel), defendant’s brother. Police
5 The criminalist who analyzed the sample testified that a
sample “consistent” with gunshot residue meant it contained one
or two of the three elements—lead, barium, and antimony—
criminalists look for to indicate the presence of gunshot residue.
Based on Thornton’s sample, the criminalist opined Thornton
either “discharged a firearm,” “had his hands otherwise in an
environment of gunshot residue,” or “received these particles
from an environmental source.” She testified that if a bullet fired
into Thornton’s car hit and shattered the car’s windows, gunshot
residue could have fallen onto Thornton’s hands.

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pulled the car over and found Almache wearing a body armor
vest.
That same day, police searched the back house where
defendant was living pursuant to a search warrant. They found
an AK-47, outfitted with a loaded clip, hidden inside a television.
Police also found ammunition of various types in dresser and
kitchen drawers.
After the shooting, defendant went to his cousin’s house in
Norwalk. Defendant asked his cousin and her daughter,
Stephanie Cardenas (Cardenas), to drive him to Tijuana. The
authorities were able to connect defendant to the Cardenas
family and to stop Cardenas and her mother as they were
crossing the border back into the United States. With some
assistance in Tijuana, law enforcement officers took defendant
into custody at the United States border.
C. Defendant’s Defense (and the Prosecution’s Efforts to
Undercut It)
1. Defendant’s encounters with the unidentified
Hispanic man
Defendant testified at trial. He told the jury he did not
recognize the Hispanic man who came onto his property on
August 9, two days before defendant shot Thornton. The man
parked a green vehicle on the sidewalk and then opened the front
gate on the property and walked to the back door of the main
house, which he tried to open. Defendant asked the man what he
was doing and told him to leave. The other man threw the first
punch, starting the fight.
Defendant testified that after he retrieved the kitchen knife
from the main house on the property and returned outside, the

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man still refused to leave. They resumed fighting and defendant
stabbed the man when he “wildly swung the knife . . . .”6
Defendant said after the man fell he went inside and told his
sister to come with him to their grandparents’ house a short
distance away.7
Defendant testified that as he was leaving, the Hispanic
man ran off and said: “You fuck[ed] up. I will be back and kill
you and your family.” Defendant and his sister both testified
that the Hispanic man drove to their grandparents’ house after
the fight and parked in the middle of the street. Defendant
6 Detective Colin Braudrick (Detective Braudrick)
interviewed defendant after his arrest. In telling Detective
Braudrick about the fight, defendant stated he “could have
finished [the other man] off” but did not want to “go down for
murder” so “I was like fuck it, shank him once and let him be. So
I let him be, you know what I mean.” Defendant also told
Detective Braudrick he stabbed the other man twice “[b]ecause
the first time I shanked him, he wouldn’t go down. He wouldn’t
go down. Like I gave him—I gave him the chance, you know
what I mean, to leave, but he wouldn’t leave, so I had to do it
again.” Defendant testified he thought the other man was “in the
system” because of his tattoos, but the parties stipulated the
blood found outside defendant’s home did not register a match
with any convicted felon.
7 Defendant’s sister testified that defendant did not return to
their house after the fight and that she decided to go to her
grandparents’ house on her own about five minutes after
defendant fled.

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testified the man threatened him again at that time, telling
defendant he “fucked up” and “I’ll be back.”8
Defendant’s neighbor Mendez testified she saw and heard
at least portions of the fight. Mendez claimed not to remember
telling the police what she heard defendant and the other man
saying, but the prosecution presented evidence that when police
interviewed Mendez after Thornton’s death, she told them she
heard defendant tell the other man that if he did not leave,
defendant would hit him and kill him. The prosecution also
presented evidence Mendez had said, in her prior interview, that
defendant “always makes a ruckus in the street,” “is always
bothering people,” “doesn’t like it when someone comes onto this
street,” and “says that this area belongs to him, and that nobody
can come in here . . . .” At trial, Mendez testified she did not
remember making these statements. She said she did remember,
however, telling police that defendant gave everyone “very dirty
looks,” and Mendez admitted she was “sometimes” afraid of him.
Defendant testified he saw the Hispanic man three more
times over the next two days, August 10 and 11. On the morning
of August 10, defendant saw the same Hispanic man turn his car
onto defendant’s block. Defendant told the jury that later the
same day he bought an AK-47 rifle, a .357 Magnum, a bag full of
different types of ammunition, and a bulletproof vest. The next
morning, which was August 11, defendant was outside his
8 On cross-examination, the prosecution established
defendant testified at a prior court proceeding that the man
threatened to come back but never said “you fucked up.”
Defendant’s sister testified that when she heard the man
threaten her brother, the man did not swear.

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grandparents’ house when the man drove by, this time in a black
car, and gave defendant “a sideways glance.” Defendant claimed
he saw the man again later in the afternoon while defendant was
walking between his house and his grandparents’ home.
According to defendant, this time the Hispanic man was driving
yet another car, this one white, and defendant said there
appeared to be a second man reclined in the front passenger seat.
Defendant said he saw the driver make a gesture as though he
was “trying to reach for something” as he drove by.
Defendant’s mother (Pena) and his cousin’s daughter
(Cardenas) both testified defendant told them he had fought with
the Hispanic man, that the Hispanic man had threatened his life
and had been following him, and that they were in danger.
2. Defendant’s shooting of Thornton
Almache testified he went to defendant’s house the evening
before Thornton’s killing because defendant lived near his
girlfriend. Defendant testified he told Almache to spend the
night because defendant did not want to leave his family
unprotected while driving Almache home. Almache said
defendant did not say why he wanted Almache to set his alarm
for 4:30 a.m.
Defendant testified he ran outside after Almache’s alarm
sounded because he heard the door of the main house slam and a
car start. He stated that as he was “watching [Pena] go safely,”
he saw the headlights of an unfamiliar white car parked down
the street come on. The car had no license plates and it began
driving slowly toward his house. Defendant could see two black
men inside with both seats reclined. Defendant “kn[e]w . . . it
wasn’t the Hispanic guy,” but he testified he was “well aware” of

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retaliation and believed “sometimes they probably send different
people.” Defendant claimed that as the car passed by him, he
saw the driver pointing a gun at his mother’s car, and defendant
said he was “in fear for my life and my mother’s . . . life.”
The white car continued past his family’s property and then
made a u-turn, which brought it behind his mother’s car, which
was pulling into the street. According to defendant, when the
white car again passed where he was standing and was behind
his mother’s car, he saw “gunfire from inside the vehicle” and
could not tell whether it was aimed at him or his mother Pena.
Defendant, who was about “15, 20 feet” from the white car, fired
two rounds at the vehicle. He told the jury he did so because he
saw “the two gunmen inside the car, and . . . gunfire” and felt like
his and his mother’s lives were in danger.9
Pena also provided an account of what happened in the
early morning hours on August 12 (the time of the shooting). She
testified that defendant called her that morning to say he would
9 On cross-examination, defendant admitted he had not
previously said that he saw gunfire—whether in police interviews
or while testifying at a prior court proceeding. Instead, his
account up until trial had only described seeing the driver
pointing a gun. Cardenas testified defendant told her he shot at
the car because Thornton had driven past his mother twice and
defendant “thought” Thornton was going to pull a gun.
Both Almache and Johnny Green, a fire captain stationed
near defendant’s home, testified they heard only two gunshots
shortly after 4:30 a.m. that morning. (That testimony tended to
undermine defendant’s claim to have seen shots fired from the
white car because defendant admitted he fired two shots at
Thornton, which would have accounted for the two shots Almache
and Captain Green heard.)

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walk her to her car, but she did not see him when she left for
work. Pena was inside her car when she noticed a white vehicle
on the other side of the street turn on its lights. She said she saw
two black men wearing white shirts and white caps inside the
other car. Pena further asserted she could see the person in the
passenger seat holding “something black” down by his thigh.
When the car made a quick u-turn, Pena “got nervous” and
“stepped on it,” accelerating quickly away. She did not hear
gunshots or anything else, and she turned at the end of the
street.
After shooting Thornton, defendant ran to the back of his
family’s property, toward the railroad tracks. Almache said
defendant saw him and told him to “shush,” putting his finger to
his mouth, as he ran by. Defendant told the jury he did not
return to his house and that he tossed the gun by the railroad
tracks, but Cardenas testified defendant told her he put the gun
back in his house after the shooting.10
While defendant was at Cardenas’s house later in the day
after shooting Thornton, she walked with him to a pay phone
twice. He made at least two calls to Almache. During those calls,
defendant told Almache he “caught that fool slipping,” which
Almache said meant he “caught him off guard.” Defendant also
said he “let him have it” and “blasted that fool,” or something to
that effect. Defendant told Almache to remain in the house, keep
10 Detective Braudrick testified that Almache told him during
an interview that he took a revolver from defendant’s house and
gave it to the driver of the van that accompanied the car driven
by defendant’s brother when picking up Almache after the
shooting.

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his “mouth shut,” refrain from doing anything “stupid,” and put
on the bulletproof vest. Cardenas testified she heard defendant
ask Almache whether he had hidden the guns.
Almache testified that defendant told him he was sending
someone to pick him up, an account that was corroborated by
Cardenas, who testified she heard defendant ask his brother
Daniel to get Almache. Defendant, however, testified he never
told Almache someone would be coming to pick him up.
D. Closing Argument
Defense counsel argued his client’s encounters with the
unidentified Hispanic man caused him to genuinely fear for his
and his family’s safety, in particular for his mother because she
left for work in the dark each morning. Counsel contended the
fear defendant felt was attributable to “adrenaline, that fight or
flight” response when defendant saw the white Saturn, without
any license plates and occupied by two men in reclined positions
with “what he thinks is a gun,” make a u-turn and pull behind
Pena’s car.
The defense further argued the evidence showed
defendant’s belief that he needed to shoot Thornton was
reasonable under the circumstances. Counsel suggested
Thornton may have had nefarious intentions that morning,
asking, for example, why someone would choose to sleep in his
car in one of the most dangerous areas of Los Angeles. Defense
counsel further argued that defendant’s claim to have seen
Thornton with a gun (or someone else in the car with a gun,
because defendant claimed he saw a passenger) was corroborated
by some other evidence: Thornton had residue on his hands
consistent with having fired a weapon and a passenger could

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have fled with the gun, which would explain why the police never
recovered a firearm. Counsel argued a reasonable person
confronted with the same circumstances as defendant would have
felt the same fear, even if mistaken that Thornton presented any
actual danger.
The prosecution argued defendant committed first degree
murder based on evidence he positioned himself with a loaded
gun outside his house, waited until Thornton drove by, and then
aimed and shot him. Counsel reminded the jury of Mendez’s
testimony that defendant did not like people he did not know to
be on “his” street and that defendant told the unidentified
Hispanic man to leave or defendant would beat or kill him.
The prosecution additionally argued defendant did not act
in self-defense because a reasonable person would not have
believed, under the circumstances, that deadly force was
necessary to prevent Thornton from killing or seriously injuring
defendant or his mother. In the prosecution’s view, defendant’s
accounts of the prior fight with the Hispanic man, the shooting,
and his fear were all implausible given other evidence, and the
prosecution further argued that Pena lied to protect her son.
More specifically, the prosecution contended the shattered
glass covering the passenger-side seats in Thornton’s vehicle
undercut the testimony of defendant and Pena that two people
were in the car (the reasoning being that the glass would have
fallen on the passenger, not the seat). The prosecution argued
there was no evidence Thornton had or fired a gun, and
defendant only claimed he saw gunfire after he saw a copy of the
gunshot residue report (which was, in any event, consistent with
Thornton receiving trace particles from the bullets defendant
fired). The prosecution reminded the jury of defendant’s

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statement to Almache that he “caught that fool slipping” and
defendant’s statement to Braudrick that he “let [the unidentified
Hispanic man] leave.” What the evidence showed, according to
the prosecution, was that defendant shot “an unarmed black man
in a car with no license plates, oh, and by the way with the
windows rolled up” a few days after getting into a fight that
defendant “brought on [him]self.”
E. Jury Instructions
The court instructed the jury after closing argument. The
court gave a number of CALJIC instructions bearing on self-
defense and the defense of others.
Among the instructions given was CALJIC No. 5.12, which
informed the jury that killing another person is not unlawful
when the person who does the killing actually and reasonably
believes there is imminent danger he will be killed or greatly
injured by another person and it is accordingly necessary to use
deadly force. In addition, the trial court instructed the jury with
CALJIC Nos. 5.13 and 5.14, which explained this self-defense
principle also applies when a killing is undertaken in defense of
another person under the same conditions—and that “a person
may act upon appearances whether the danger is real or merely
apparent” (CALJIC No. 5.13). Also among the instructions given
was CALJIC No. 5.17, which explained the concept of imperfect
self-defense (or imperfect defense of another), namely, that a
person who kills another “in the actual but unreasonable belief in
the necessity to defend against imminent peril to life or great
bodily injury, kills unlawfully but . . . is not guilty of murder.”
Instead, the killing is punishable (at most) as voluntary
manslaughter.

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The court did not specifically instruct the jury they could
consider defendant’s prior encounters with the Hispanic man,
and the threats that man was said to have made, in deciding
whether defendant acted in self-defense or defense of his mother.
Defense counsel stated on the record he had no objections to any
of the instructions the court gave, and counsel did not request
any clarifications or additions to the court’s instructions.11
II. DISCUSSION
Defendant contends the trial court’s exclusion of an expert
witness he sought to have testify, as well as certain asserted
instructional errors, eviscerated the crux of his defense to the
murder charge. He argues the trial court should have allowed
the expert to testify about “fight or flight syndrome” and his
counsel should have requested, or the court should have given
sua sponte, instructions on the relevance of the antecedent
threats the Hispanic man was alleged to have made. Defendant
further argues the court should have instructed the jury on
voluntary manslaughter based on a heat of passion theory and
there was insufficient evidence for the jury to find he committed
willful, deliberate, and premeditated murder.
We reject defendant’s contentions and affirm his
convictions. As to defendant’s claim the trial court erred by
11 In the prior trial, the trial judge gave modified instructions
that highlighted how the jury could consider the antecedent
threats made by the Hispanic man in considering whether
defendant acted in (perfect or imperfect) self-defense or defense of
his mother. So far as the appellate record reveals, defense
counsel made no request for similarly modified instructions
during the retrial.

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excluding expert testimony on fight or flight syndrome, we
conclude defendant suffered no prejudice requiring reversal.
Before trial, the defense argued the expert would permit the jury
to make an inference that would explain why defendant shot a
man seemingly engaged in innocent (or merely suspicious)
conduct in purported self-defense or defense of others, but
defendant’s testimony at trial rendered this proposed expert
testimony superfluous—defendant testified he shot Thornton
after seeing him point and seemingly fire a gun at Pena, and the
jury needed no assistance in understanding why those
circumstances, if true, would permit actions in self-defense or
defense of others. Defendant’s claims of instructional error fail
because the court’s instructions were accurate and adequate,
obviating any requirement for a pinpoint instruction on
antecedent threats or for an instruction on heat of passion
manslaughter as a lesser included offense of murder. And as to
the sufficiency of the evidence to support the jury’s premeditation
and deliberation finding, our standard of review is deferential
and we conclude the finding is supported by adequate evidence of
planning, motive, and the manner of killing.
A. Claim of Wrongful Exclusion of Expert Testimony
1. The pertinent proceedings in the trial court
Defendant’s trial brief alerted the court and the prosecution
that he intended to present evidence that defendant killed
Thornton in self-defense or in defense of others (i.e., Pena).
Specifically, the defense stated it planned to call expert witness
Jack Rothberg (Rothberg), a medical doctor with a Ph.D., who
would explain “the effects of the ‘fight or [flight]’ mechanism on a
person’s brain, demeanor and aggression.” The trial brief

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elaborated as follows: “Since Defendant had been attacked and
threatened in his own home [by the unidentified Hispanic man],
he was concerned for not only his own safety but that of his
family as well. That when he saw [Thornton’s] car acting in a
suspicious manner, Defendant acted while under the effects of
the ‘fight or flight’ syndrome.”
Prior to the commencement of trial, the trial court
discussed evidence admissibility issues—including Rothberg’s
proposed testimony—with counsel for both sides. Defense
counsel made a further proffer of what Rothberg would (and
would not) testify to and why it was relevant to the self-defense
and defense of others theories he planned to present.12 Counsel
acknowledged “this notion of the fight or flight syndrome . . . is
not a novel concept, and we all have some awareness of it and
what it means.” But defense counsel contended expert testimony
could be appropriate even when jurors are not wholly ignorant
about the subject of the testimony, and Rothberg’s testimony was
necessary “to answer that question, how does Mr. Thornton get
shot when he seemingly poses no threat.”
Counsel stated Rothberg would explain “the biology” of why
the body responds the way it does to fight or flight syndrome, i.e.,
“that cognitive thinking of making a rational decision gets
diminished” and “the senses of sight and hearing get heightened.”
Rothberg would additionally opine defendant suffered from post
12 Counsel agreed when asked whether the proposed
testimony from Rothberg was offered in connection with the
subjective aspect of self-defense (or defense of others) that was
relevant to whether defendant acted either in actual or imperfect
self-defense.

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traumatic stress disorder (PTSD), which made him “more
sensitive to the fight or flight syndrome, meaning [the syndrome
might] come on more quickly with less stimulus than, say,
someone who isn’t suffering from PTSD.” Counsel made clear,
however, that “this expert is not going to testify to the ultimate
issue as to whether [defendant] was under the influence . . . of
this fight or flight syndrome, so to speak. That’s up to the jury to
decide. But what Dr. Rothberg can do is explain the why of the
fight or flight, [the] biology of the fight or flight.”
The prosecution opposed the defense request to call
Rothberg to testify, contending his proposed testimony was
irrelevant because there was no evidence of any link between the
Hispanic man who allegedly threatened defendant and the
victim, Thornton. The prosecution also contended that without
any association between the Hispanic man and Thornton,
allowing the expert to testify would confuse the issues and be
unduly prejudicial. The prosecution further argued that because
Rothberg met defendant only once and did not review any records
or interview any family members, his opinion that defendant
suffered from PTSD was not supported by an adequate
foundation.
The trial court ruled Rothberg would not be permitted to
testify. The court explained that “based upon the offers of proof
that I have heard, and based upon the recent [People v. Romero
(1999) 69 Cal.App.4th 846 (Romero)] case, [the court does not]
find that [Rothberg] could offer relevant testimony [on] the issue
of perfect or imperfect self-defense, whether it’s the objective

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standard or actual self-defense or the subjective standard, as to
both.”13
2. Analysis on appeal
A trial court has broad discretion to exclude evidence,
including expert testimony, if it determines the evidence is
irrelevant (Evid. Code, § 350) or, despite being relevant, the
evidence’s “probative value is substantially outweighed by the
probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury”
(Evid. Code, § 352). (People v. Linton (2013) 56 Cal.4th 1146,
1181; People v. Harris (2005) 37 Cal.4th 310, 337.)
The defense sought to call Rothberg as an expert witness in
an effort to establish the killing of Thornton was not murder.
The defense sought to convince the jury that defendant’s decision
13 The trial court reasoned that Romero, which neither party
had cited in arguing the issue, was “very similar, [and] on point.”
As the court described it, Romero held that expert testimony on
“‘the sociology of poverty and the role of honor, paternalism and
street fighters’” in “‘the Hispanic culture’” was irrelevant to
“‘whether [the] defendant actually believed he was in [imm]inent
danger of death or great bodily injury, and whether such belief is
objectively reasonable.’” Quoting in part from Romero, the court
continued: “Whether a person should or should not retreat from
a street fight, which is very similar to whether a person should or
should not retreat, period, or stay and fight, has no bearing on
whether that person may lawfully use deadly force. [¶] . . .
Absent evidence that . . . defendant was in fear of [imm]inent
death or great bodily injury, the jury has no evidentiary basis to
conclude that the defendant subjectively had an actual but
unreasonable fear that negated malice.”

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to shoot Thornton was a lawful act of self-defense (perfect self-
defense) or, at most, voluntary manslaughter (imperfect self-
defense).14 (See, e.g., People v. Sotelo-Urena (2016) 4 Cal.App.5th
732, 744 [“A homicide is considered justified as self-defense
where the defendant actually and reasonably believed the use of
deadly force was necessary to defend himself from imminent
threat of death or great bodily injury. Under such circumstances,
the killing is not a crime. [Citations.] Where the defendant kills
while actually but unreasonably believing the use of deadly force
was necessary, defendant is considered to have acted in imperfect
self-defense. Imperfect self-defense is not a complete defense to a
killing, but negates the malice element and reduces the offense to
voluntary manslaughter”].)
During the pre-trial hearing when the trial court was
required to decide whether Rothberg’s testimony should be
admitted for this purpose, the question was a fairly close one.
Based on the testimonial proffer provided by the defense, there
are cases that can be read to support the request to call Rothberg
as an expert witness. (See, e.g., People v. Humphrey (1996) 13
Cal.4th 1073, 1088-1089 [“We simply hold that evidence of
battered women’s syndrome is generally relevant to the
reasonableness, as well as the subjective existence, of defendant’s
belief in the need to defend, and, to the extent it is relevant, the
jury may consider it in deciding both questions”] (Humphrey);
14 Defendant did not argue in the trial court, nor does he
argue on appeal, that Rothberg’s testimony was offered to negate
the prosecution’s proof that defendant’s shooting of Thornton was
willful, deliberate, and premeditated—a finding the jury made in
convicting defendant of first degree murder.

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People v. Cortes (2011) 192 Cal.App.4th 873, 911-912 [expert
testimony, similar to expert testimony in Humphrey that
concerned the defendants’ experiences as battered women that
affected their perceptions of danger and its imminence, wrongly
excluded].) There are also cases that point in the opposite
direction, including, on the facts here, the very same Humphrey
decision. (See, e.g., Humphrey, supra, at p. 1087 [“The jury must
consider defendant’s situation and knowledge, which makes the
evidence relevant, but the ultimate question is whether a
reasonable person, not a reasonable battered woman, would
believe in the need to kill to prevent imminent harm”]; People v.
Jefferson (2004) 119 Cal.App.4th 508, 518-519 [no error in
excluding evidence of the defendant’s mental condition because
“[t]he issue is not whether [the] defendant, or a person like him,
had reasonable grounds for believing he was in danger” but
“whether a ‘reasonable person’ in defendant’s situation, seeing
and knowing the same facts, would be justified in believing he
was in imminent danger of bodily harm”]; see also People v.
Elmore (2014) 59 Cal.4th 121, 137 [“Unreasonable self-defense
was never intended to encompass reactions to threats that exist
only in the defendant’s mind”] (Elmore).) Regardless, as the case
reaches us on appeal—after a full trial during which defendant
testified—we are convinced there was no prejudicial error under
People v. Watson (1956) 46 Cal.2d 818.15
15 Watson’s standard for prejudicial error applies because the
exclusion of Rothberg’s testimony did not amount to “a complete
preclusion of a defense” warranting review under the standard
set forth in Chapman v. California (1967) 386 U.S. 18, 24.
(People v. Bacon (2010) 50 Cal.4th 1082, 1104, fn. 4; see also
People v. Fudge (1994) 7 Cal.4th 1075, 1103 [rejection of a

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Defense counsel stated Rothberg’s proposed testimony was
being offered so the jury could make a defense-favorable inference
as to why defendant shot Thornton under circumstances in which
he seemingly posed no threat. As counsel explained when
arguing the issue at the pre-trial hearing: “[Defendant]
shot . . . and ended up killing [Thornton] is the reason why we’re
here, and it’s based on the actions as perceived by [defendant] on
the night he fired upon [Thornton]. It appeared threatening. It
appeared as though he was coming after his mother. And that’s
what an expert can explain is, well, how can [defendant]—exact
question that the prosecutor brings up, well, what did [defendant]
ever know about [Thornton]? What did [Thornton] ever do to
[defendant]? . . . Nothing. And so that explains why we need this
expert to explain why [defendant] perceived [Thornton] as a
threat.” However, when defendant testified during trial, his
account of what prompted him to shoot Thornton changed (or,
perhaps, evolved) and rendered Rothberg’s proposed testimony
inconsequential.
Defendant testified he saw Thornton (whom he described
as “the driver”) pointing a gun at his mother’s vehicle as
Thornton’s car drove by where defendant was standing.
Defendant further testified that he saw “gunfire from inside
[Thornton’s] vehicle” and that’s when he “returned fire.” In light
of this testimony, the predicate for a self-defense or defense of
others defense was obvious and in no way depended on the need
for expert testimony to explain why defendant would have
understood the circumstances he described as threatening. Any
portion, but not the entirety, of evidence regarding a defense
subject to Watson standard of review].)

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juror would understand, in light of the self-defense and defense of
others instructions given by the trial court, that deadly force
could be an appropriate response by defendant if Thornton (or
someone in his car) was shooting at his mother—Rothberg’s
testimony would have added very little to explain, as defense
counsel put it, “why [defendant] perceived [Thornton] as a
threat.” (Evid. Code, § 801, subd. (a); People v. McDowell (2012)
54 Cal.4th 395, 425-426 [expert testimony admissible only if it is
related to a subject that is sufficiently beyond common experience
such that the testimony would assist the trier of fact].) The
question really came down to whether the jury believed
defendant’s testimony (it didn’t), and it is not reasonably
probable the jury would have come to a different conclusion if
Rothberg had testified.
B. Claims Concerning Instructional Error
1. The trial court was not required to give an
instruction on antecedent threats sua sponte
A trial court is obligated “to instruct sua sponte ‘on those
general principles of law that are closely and openly connected
with the facts before the court and necessary for the jury’s
understanding of the case.’ [Citation.]” (People v. Simon (2016) 1
Cal.5th 98, 143 (Simon).) Instructions that “relate particular
facts to a legal issue in the case or ‘pinpoint’ the crux of a
defendant’s case” must be given if requested and supported by
the evidence, but need not be given sua sponte. (People v. Saille
(1991) 54 Cal.3d 1103, 1119.)
The Fifth District Court of Appeal held in People v. Garvin
(2003) 110 Cal.App.4th 484, 489 (Garvin) that an instruction on
the effect of antecedent assaults on the reasonableness of

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asserted self-defense conduct is “analogous to a clarifying
instruction” and therefore a “‘specific point’” rather than a
“general principle of law.” (Ibid.) Accordingly, the trial court in
that case had no duty to provide such an instruction absent a
request. (Ibid.)
The Garvin holding is persuasive and its application here is
borne out by the defense’s presentation of its case. The essence of
the defense was that the threats by the unidentified Hispanic
man contributed to defendant’s asserted belief that he needed to
shoot Thornton to protect himself and his mother. As defendant
states in his reply brief, “the antecedent threats defense was
relied upon and argued vigorously to the jury.” In his closing
argument, defense counsel asked, “[w]ould a reasonable person
who is beat up and threatened and saw the guy again and was
going out watching his mom, would a reasonable person have felt
that fear [when seeing Thornton’s vehicle] too? I submit yeah.
Who wouldn’t?” Later, defense counsel again argued defendant
acted from a fear caused by his earlier encounters: “And you
have heard that time and time again in this trial from
[defendant], from his family, from Detective Braudrick . . . . He
had the fight. The threat that caused fear, but what really
caused it was seeing [the Hispanic man] again and again and
again so much so that he acquired weapons to do it. [¶] And why?
Not so much for himself, for his mother. Is that so unreasonable?
I submit to you it is [not]. Again, he is not going out there at 4:30
in the morning killing people, shooting at people. [¶] . . . [¶] So
why is he doing it this time? Because he is scared. He is afraid
for his mother. Why? The fight and the threat and the
subsequent sightings of this guy.”

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The court’s instructions on self-defense and defense of
others permitted jurors to make the very connection defense
counsel advocated. CALJIC No. 5.12 instructed that defendant
was justified in killing Thornton if “the circumstances [were]
such as would excite the fears of a reasonable person placed in a
similar position . . . .” CALJIC No. 5.13 instructed that
defendant could act upon appearances whether the danger was
real or apparent, an instruction reiterated by CALJIC No. 5.51,
which provided that “[a]ctual danger [was] not necessary to
justify self-defense” so long as “a reasonable person in a like
situation, seeing and knowing the same facts, would be justified
in believing himself in like danger . . . whether the danger is real
or merely apparent.”
Both the court’s instructions and the arguments of defense
counsel reveal that the effect of the threats and conduct of the
unidentified Hispanic man on defendant’s mindset when he shot
Thornton was not a “general principle” of law but rather a
specific application of the law of self-defense to the particular
facts of this case. The jury could easily comprehend how and why
the prior threats might have informed defendant’s subsequent
thoughts and actions, and nothing in the court’s instructions
foreclosed the jury from considering that relationship. Thus, a
sua sponte antecedent threats instruction was not necessary for
the jury to understand the defense theory or to correctly apply
the law to the facts.

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2. Defendant has not established his trial attorney
provided constitutionally deficient
representation by not requesting an antecedent
threats instruction
Defendant contends that if we conclude a sua sponte
instruction on antecedent threats was not required (and we have
so concluded), his attorney was constitutionally ineffective
because he did not request the instruction, which was “the
centerpiece of the defense.” Defendant avers there was no
possible tactical reason for counsel not to request an antecedent
threats instruction because “[i]t was appellant’s only defense and
was repeatedly stressed in argument.” Furthermore, defendant
argues his attorney’s failure to request an antecedent threats
instruction was prejudicial because such an instruction was given
in the first trial, and that trial resulted in a hung jury.
“‘In assessing claims of ineffective assistance of trial
counsel, we consider whether counsel’s representation fell below
an objective standard of reasonableness under prevailing
professional norms and whether the defendant suffered prejudice
to a reasonable probability, that is, a probability sufficient to
undermine confidence in the outcome. (Strickland v. Washington
(1984) 466 U.S. 668, 694 [ ]; People v. Ledesma (1987) 43 Cal.3d
171, 217 [ ].)’” (People v. Carter (2005) 36 Cal.4th 1114, 1189.)
We presume that “‘counsel’s performance fell within the wide
range of professional competence and that counsel’s actions and
inactions can be explained as a matter of sound trial strategy.
Defendant thus bears the burden of establishing constitutionally
inadequate assistance of counsel.’” (Ibid.) If the appellate record
“‘sheds no light on why counsel acted or failed to act . . .,’” a
reviewing court on direct appeal must reject an ineffective

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assistance of counsel claim “‘unless counsel was asked for an
explanation and failed to provide one, or there simply could be no
satisfactory explanation.’” (Ibid; see also People v. Mendoza Tello
(1997) 15 Cal.4th 264, 266-267.)
Under this standard for ineffective assistance of counsel
claims brought on direct appeal, we see no error requiring
reversal. As we have already explained, an antecedent threats
instruction was unnecessary in light of the adequacy of the jury
instructions given and the evidence and argument presented
concerning antecedent threats as the motivation for defendant’s
behavior. Indeed, defense counsel may have chosen not to
request a pinpoint instruction because he concluded it was
unnecessary. Or counsel may have made a tactical decision to
refrain from requesting such an instruction so as not to place
overwhelming emphasis on the prior fight with the Hispanic
man, which might detract from defendant’s testimony that he
saw gunfire coming from Thornton’s car after Thornton pointed a
gun at his mother’s vehicle.
In any event, counsel’s failure to request an antecedent
threats instruction did not prejudice defendant. The absence of
such an instruction was not so significant that we can assume it
may have influenced the jury. In that respect, this case is unlike
People v. Diaz (2014) 227 Cal.App.4th 362, in which “highly
inflammatory” evidence with “near certain potential for undue
prejudice and . . . marginal probative value” was admitted at the
defendant’s second trial after his first trial resulted in a hung
jury. (Id. at pp. 381-382; see also id. at pp. 384-385 [indications
that the jury saw the case as “close” made it more likely
defendant was prejudiced by introduction of the inflammatory
evidence].) By contrast, the instructions given in this case,

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combined with defense counsel’s presentation of evidence and
argument (with no objection from the prosecution), adequately
informed the jury they could consider defendant’s previous
encounters with the unidentified Hispanic man in deciding
whether defendant actually believed he and his mother were in
danger and whether that belief was reasonable. (People v.
Smithey (1999) 20 Cal.4th 936, 986-987 [counsel’s failure to
request pinpoint instruction not prejudicial because the
instructions as a whole, taken together with trial evidence and
counsel’s closing argument, adequately informed the jury they
could consider evidence in the very manner that a pinpoint
instruction would have provided].)
3. The trial court did not err, prejudicially or
otherwise, by not instructing the jury on heat of
passion manslaughter
A defendant who kills (1) in a sudden quarrel or heat of
passion or (2) when motivated by an unreasonable but good faith
belief in having to act in self-defense lacks the malice required for
murder and therefore can be guilty of only voluntary
manslaughter. (People v. Breverman (1988) 19 Cal.4th 142, 154.)
These two forms of voluntary manslaughter are lesser included
offenses of intentional murder. (Ibid.) “A trial court has a sua
sponte duty to instruct the jury on a lesser included uncharged
offense if there is substantial evidence that would absolve the
defendant from guilt of the greater, but not the lesser, offense.
[Citation.] Substantial evidence is evidence from which a jury
could conclude beyond a reasonable doubt that the lesser offense
was committed. [Citations.] Speculative, minimal, or
insubstantial evidence is insufficient to require an instruction on

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a lesser included offense. [Citations.]” (Simon, supra, 1 Cal.5th
at p. 132; accord, People v. Moye (2009) 47 Cal.4th 537, 553
(Moye).)
Here, the trial court instructed the jury on voluntary
manslaughter based on imperfect self-defense, but not on a heat
of passion theory. Defendant argues this was error, reasoning
defendant “acted out of a high-wrought emotion” when “he was in
fear for the life of his mother when he saw Thornton point and
fire a gun.” We conclude no heat of passion voluntary
manslaughter instruction was required because there was
insubstantial evidence defendant shot Thornton in a heat of
passion.
“[T]o warrant instructions on provocation and heat of
passion, there must be substantial evidence in the trial record to
support a finding that, at the time of the killing, defendant’s
reason was (1) actually obscured as a result of a strong passion;
(2) the passion was provoked by the victim’s conduct; and (3) the
provocation was sufficient to cause an ordinary person of average
disposition to act rashly or without due deliberation and
reflection, and from this passion rather than from due
deliberation or reflection.” (People v. Wright (2015) 242
Cal.App.4th 1461, 1481; see also People v. Landry (2016) 2
Cal.5th 52, 97.)
Here, defendant’s trial testimony does not rise to the level
of substantial evidence his reason was actually overcome by any
intense emotion when he shot at Thornton’s car (other than
perhaps his asserted fear, which was covered in the self-defense

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and unreasonable self-defense instructions the trial court gave).16
The trial court accordingly had no duty to give a lesser included
offense instruction on heat of passion manslaughter. (Moye,
supra, 47 Cal.4th at p. 553-554 [trial court that gave instructions
on imperfect self-defense voluntary manslaughter did not err in
declining to also instruct on heat of passion voluntary
manslaughter because even though the defendant testified at one
point he was “not ‘in the right state of mind’” when attacking the
victim, the “thrust” of the defendant’s testimony was self-defense,
not a heat of passion killing].)
Moreover, even if we were to conclude the trial court should
have instructed the jury on a heat of passion theory of voluntary
manslaughter, the omission of the instruction was harmless
under any standard of assessing prejudice. The jury’s rejection of
voluntary manslaughter based on unreasonable self-defense,
which was predicated on facts essentially identical to those upon
which defendant relies to argue a heat of passion manslaughter
instruction was required,17 proves beyond a reasonable doubt that
the jury would have returned a murder verdict even if instructed
on heat of passion voluntary manslaughter.
16 Defendant, for example, testified at one point on direct
examination that the evening before the shooting he did not get
drunk or use drugs because that “clouds your mind and you don’t
think rational. [I] wanted to be conscious and be aware of
everything that was going on.”
17 As defendant concedes in his opening brief, “the theories of
imperfect self-defense and heat-of-passion voluntary
manslaughter were closely intertwined . . . .”

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C. Claim of Insufficient Evidence
Defendant contends there was insufficient evidence for the
jury to find he committed willful, deliberate, and premeditated
murder. His contention is without merit for reasons we now
explain.
“In assessing the sufficiency of the evidence supporting a
jury’s finding of premeditated and deliberate murder, a reviewing
court considers the entire record in the light most favorable to the
judgment below to determine whether it contains substantial
evidence—that is, 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. [Citations.] When
the circumstances reasonably justify the jury’s findings, a
reviewing court’s opinion that the circumstances might also be
reasonably reconciled with contrary findings does not warrant
reversal of the judgment. [Citations.]” (People v. Mendoza (2011)
52 Cal.4th 1056, 1068-1069 (Mendoza).) Thus, we approach our
task without reweighing the evidence or reevaluating the
credibility of witnesses. (People v. Covarrubias (2016) 1 Cal.5th
838, 890.)
To support a conviction for deliberate and premeditated
first degree murder, there must be sufficient evidence the
defendant carefully weighed considerations in choosing a course
of action and thought about his conduct in advance. (People v.
Cage (2015) 62 Cal.4th 256, 276 (Cage).) “‘“‘The true test is not
the duration of time as much as it is the extent of the reflection.
Thoughts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly . . . .’”’ [Citation.]”
(Ibid.)

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Relying on the seminal decision in People v. Anderson
(1968) 70 Cal.2d 15, 26-27 (Anderson), courts generally look for
three types of evidence in evaluating whether a defendant
premeditated and deliberated: planning activity, motive, and the
manner of killing. (Cage, supra, 62 Cal.4th at p. 276.) “When
evidence of all three categories is not present, ‘we require either
very strong evidence of planning, or some evidence of motive in
conjunction with planning or a deliberate manner of killing.’
[Citation.] But these categories of evidence . . . ‘are descriptive,
not normative.’ [Citation.] They are simply an ‘aid [for]
reviewing courts in assessing whether the evidence is supportive
of an inference that the killing was the result of preexisting
reflection and weighing of considerations rather than mere
unconsidered or rash impulse.’ [Citation.]” (People v. Cole (2004)
33 Cal.4th 1158, 1224.)
Considering the record in light of the Anderson factors, we
conclude there was sufficient evidence defendant killed Thornton
with premeditation and deliberation. Defendant’s own testimony
revealed he engaged in significant planning activity. Prior to the
killing, he purchased multiple guns, ammunition, and body
armor; hid one of the weapons; and positioned himself, armed,
behind the front gate of his home early in the morning before
Thornton drove by. Such conduct in no way reflects a rash or
unconsidered decision.
In addition, the statements of defendant’s neighbor Mendez
provided a basis on which a jury could infer a nefarious motive
for the killing. She told police defendant did not approve of
unfamiliar people coming onto their street and defendant said the
area “belong[ed] to him . . . .” Other evidence at trial tended to
bear this out: Mendez heard defendant threaten to kill the

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unidentified Hispanic man if he did not leave, defendant
harassed a man he did not know parked on the street, and
defendant assaulted Smith close to his home. There was also
evidence defendant was an 18th Street gang member and
particularly hostile to African-Americans. He had “BK” for
“Blood killer” tattooed on his body, and both Smith and Thornton
were African-American.18
Defendant’s manner of killing Thornton, with a shot to the
head, from a concealed position on his property 15 to 20 feet away
from Thornton’s vehicle, was further evidence that supported the
jury’s first degree murder finding. (See Mendoza, supra, 52
Cal.4th at p. 1071 [“Because the manner of killing reflected
stealth and precision, a rational jury could conclude that a
preconceived design was behind the killing”].)
Additional evidence supports a finding of first degree
murder insofar as it undermines defendant’s claims to have acted
impulsively out of fear. Defendant told Almache after killing
Thornton that defendant “let him have it” and “caught that fool
slipping.” These statements suggest that if anyone was planning
an ambush that morning, it was defendant, not Thornton.
D. Cumulative Error
Defendant contends that even if the effect of the asserted
errors in this case are not prejudicial when considered
individually, the cumulative effect of those errors requires
reversal of his murder conviction. We have either rejected
18 The prosecution’s gang expert testified that gang tattoos
had to be “earned” and one could not get a “Blood killer” tattoo
unless one had actually killed a Blood.

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defendant’s contentions of error or held any assumed errors to be
harmless. Defendant’s cumulative error claim therefore fails.
(People v. Sapp (2003) 31 Cal.4th 240, 316.)
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
BAKER, J.
We concur:
KRIEGLER, Acting P.J.
KIN, J.

Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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