P. v. Villareal

Filed 2/7/20 P. v. Villareal CA2/1
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 ONE
THE PEOPLE,
Plaintiff and Respondent,
v.
JOSE MANUEL VILLAREAL,
Defendant and Appellant.
B291257
(Los Angeles County
Super. Ct. No. BA444273)
APPEAL from an order/a judgment of the Superior Court
of Los Angeles County, Leslie Swain, Judge. Reversed in part,
conditionally reversed in part, and remanded with directions.
Cynthia Grimm, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters,
Assistant Attorney General, Scott A. Taryle and Michael Katz,
Deputy Attorneys General, for Plaintiff and Respondent.
____________________________

-- 1 of 43 --

2
A jury convicted defendant and appellant Jose
Manuel Villareal of attempted murder (count 1), in violation
of Penal Code sections 187, subdivision (a), and 664;1 and
assault with a firearm (count 2), in violation of section 245,
subdivision (a)(2). On both counts, the jury found true an
allegation Villareal committed the crimes for the benefit
of a criminal street gang. (§ 186.22, subd. (b)(1)(C).) With
respect to count 1, the jury found that a principal personally
and intentionally discharged a firearm, proximately causing
great bodily injury. (§ 12022.53, subds. (d) & (e)(1).)
The trial court sentenced Villareal to an aggregate
sentence of 15 years, consisting of the low term of five years for
attempted murder, plus 10 years for the gang enhancement. The
court struck the firearm enhancement for purposes of sentencing.
The court also imposed the low term of two years on count 2 but
stayed the sentence pursuant to section 654.
Villareal contends that his convictions must be reversed
on several grounds: (1) The trial court violated his rights to
due process and a speedy trial by allowing his case to proceed
after the prosecution had voluntarily dismissed the case twice
before; (2) There was insufficient evidence to support the
convictions; (3) The attempted murder conviction was based
on a theory of natural and probable consequences, which he
alleges is no longer viable following the enactment of Senate
Bill No. 1437 (2017-2018 Reg. Sess.) (Stats. 2018, ch. 1015);
(4) The court violated his right to due process by denying his
motion for a new trial; (5) The court’s instructions regarding
1 Unless otherwise specified, subsequent statutory
references are to the Penal Code.

-- 2 of 43 --

3
the gang enhancement were erroneous; (6) The court allowed
the prosecution to present an invalid theory of aiding and
abetting liability; (7) The court failed to instruct the jury on
the lesser included offense of attempted voluntary manslaughter;
(8) The prosecutor committed misconduct by misstating the
law and evidence and vouching; and (9) His trial counsel was
ineffective in several respects. Villareal also contends that even
if individual errors were harmless, the cumulative effect of the
errors prejudiced him.
We reverse Villareal’s conviction of assault with a firearm
on the ground that section 1387 barred the prosecution from
prosecuting the case against him after two voluntary dismissals.
We also remand the case to the trial court for a determination of
whether the prosecution for attempted murder was permissible,
under the doctrine of excusable neglect, despite two previous
dismissals. (§ 1387.1, subd. (a).) We reject all of appellant’s
other contentions.
FACTS AND PROCEEDINGS BELOW
At around 3:30 a.m. on January 25, 2016, a man named
Johnny Aguilar saw two men standing next to his brother’s car.
It was dark outside, and one of the men stood by the driver’s side
with a skeleton mask partially obscuring his face. The man in
the mask tried to open the driver’s side door of the car. Aguilar
said it was his brother’s car and asked the men what they were
doing. The man on the driver’s side pulled out a gun, and Aguilar
said, “[I]f you’re going to shoot, you better shoot.” The man then
shot him two or three times. The shots hit Aguilar in one of
his testicles and his leg. He went to the hospital, where doctors
removed the injured testicle.

-- 3 of 43 --

4
Aguilar told police that he recognized the man who shot
him as someone named Pelon. He later identified the man in a
photo lineup as Tommy Reyes. Aguilar knew the other man, who
was standing by the passenger side of the car, as Little Tweety.
Aguilar later identified a photo of Villareal from a lineup as Little
Tweety. Aguilar told police that he knew the two men because
they had tried to break into his home a few months earlier. At
trial, however, Aguilar denied that he could identify Reyes as the
shooter or Villareal as the other man who had been present. He
also testified that he did not remember telling the police that he
knew who shot him.
Aguilar testified that the man at the passenger side of
the car just stood there and that he did not see him do anything.
Similarly, in an interview with police shortly after the shooting,
Aguilar said that Villareal “was just following” Reyes and did not
say or do anything. He stood on the sidewalk and did not try to
get in the car.
The prosecution played for the jury a recording of a
jailhouse telephone conversation between Villareal and a friend.
In that conversation, Villareal told the friend that he told
police he did not know “Tommy,” presumably referring to his
codefendant Reyes. Villareal also said, apparently in reference
to Aguilar, “they gave that dude some photos of ours, of the entire
neighborhood, and [told] him to point out the faces that did it.”
Villareal then encouraged his friend to intimidate Aguilar about
giving information to police in the case. He told his friend to
“tell . . . that dude to not, you know—to not point at my face,
dude, because if not, it’s going to go . . . fucking bad for him.”
“[T]ell that dude to remove my fucking face from there, dude.”

-- 4 of 43 --

5
The friend told Villareal that he was going to “go do that shit
right now.”
The parties stipulated that Villareal was a member of the
Loco Park gang, and that his codefendant Reyes was a member of
the Burlington Loco gang. A police gang expert testified that the
two gangs are allies, and that a hypothetical shooting of the kind
that occurred here would have been for the benefit of a street
gang.
DISCUSSION
A. Prosecution After Two Voluntary Dismissals
Villareal contends that the trial court erred by allowing
the prosecution to refile and prosecute the case against him
after dismissing the case twice. Section 1387 provides that
“[a]n order terminating an action . . . is a bar to any other
prosecution for the same offense if it is a felony or if it is a
misdemeanor charged together with a felony and the action has
been previously terminated.” (§ 1387, subd. (a).) In other words,
if the prosecution twice dismisses a case against a defendant,
it may not proceed with charges against the defendant for the
same offense for a third time. (People v. Juarez (2016) 62 Cal.4th
1164, 1167 (Juarez).) An exception to this rule exists for violent
felonies: in such cases, even though “the prosecution has had
two prior dismissals, as defined in [s]ection 1387, the people shall
be permitted one additional opportunity to refile charges where
either of the prior dismissals under [s]ection 1387 were due solely
to excusable neglect.” (§ 1387.1, subd. (a).)
Villareal and the Attorney General agree, and the record
shows, that the case was dismissed twice before it was refiled
again and brought to trial. We must therefore reverse Villareal’s

-- 5 of 43 --

6
conviction in count 2 for assault with a firearm, which is not
classified as a violent felony, at least as applied to a defendant
who did not fire the weapon. (People v. Sinclair (2008)
166 Cal.App.4th 848, 856 (Sinclair); see § 667.5, subd. (c).)
With respect to the conviction for attempted murder in count 1,
which is a violent felony (see § 667.5, subd. (c)(12)), we agree with
the Attorney General that the appropriate remedy is to remand
the case to the trial court to make a factual finding regarding
whether one of the prior dismissals was due solely to excusable
neglect.
The district attorney first filed an information charging
Villareal with one count of attempted murder and one count
of assault with a deadly weapon on August 3, 2016. Villareal
waived the requirement that the case be brought to trial within
60 days (see § 1382, subd. (a)(2)), and the case was set for trial
on November 28, 2016. On November 28, 2016 the prosecutor
told the court that he was unable to proceed with the case at that
time. Both parties agreed to dismiss the case and deem it to be
refiled under the existing information pursuant to section 1387.2,
with a new deadline to begin trial of January 27, 2017.
On January 10, 2017, the trial court granted the
prosecution’s motion to consolidate Villareal’s case with
that of his codefendant, Reyes, under a new information.2
2 The filing of the consolidated information rendered
the previous information redundant. Villareal argues that this
should be deemed a dismissal of the previous information for
purposes of section 1387. We disagree. “In general, courts have
not considered dismissals of duplicative accusatory pleadings
to be terminations of actions within the scope of section 1387.”
(Berardi v. Superior Court (2008) 160 Cal.App.4th 210, 220.)

-- 6 of 43 --

7
On June 12, 2017, the parties informed the trial court that
they again wished to dismiss the case and proceed on the same
pleading pursuant to section 1387.2. Villareal’s attorney told the
trial court that his case had already been dismissed and refiled
once before. In order to dismiss it and allow it to be refiled once
again, the attorney told the court that it would need to make
a finding of excusable neglect. The court disagreed and found
that the case had not previously been dismissed, and that it was
therefore not necessary to make a finding of excusable neglect.
The court then dismissed the case pursuant to section 1387.2 and
rearraigned Villareal, now for the third time.
Both parties agree, as do we, that all the charging
documents in this case were for “the same offense[s],” as is
required to bar further prosecution under section 1387. The sole
meaningful difference in any of the charging documents is that
the consolidated information alleged that Villareal committed
assault with a firearm on January 25, 2016, whereas the original
information alleged that offense occurred on October 31, 2015.
But that change appears to have been the correction of a clerical
error. It is likewise clear that the prosecution twice dismissed
the charges against Villareal. On two occasions, the parties
agreed to act pursuant to section 1387.2, which allows a case
to proceed under an existing information in lieu of dismissing
it. That section explicitly states that “[f]or the purposes of
This is because the dismissal of a duplicative pleading “involving
the same facts does not involve the defendant in the kind of
successive prosecutions that section 1387 was designed to
prevent.” (People v. Cossio (1977) 76 Cal.App.3d 369, 372.)

-- 7 of 43 --

8
[s]ection 1387, the action shall be deemed as having been
previously terminated.” (§ 1387.2) Nor did Villareal invite the
error or forfeit the objection. His trial attorney called the issue
to the attention of the trial court and stated that she objected to
allowing the case to move forward having been twice dismissed.
Thus, the only question is the proper remedy for the
error. Villareal argues that the proper remedy is to reverse
his conviction. We disagree. If the trial court had found, at the
time it dismissed the second case and allowed the third case to
be refiled, that one of the dismissals was “due solely to excusable
neglect” (§ 1387.1, subd. (a)), the prosecution could have
proceeded with the refiled attempted murder charge against
Villareal despite the two dismissals. As the Attorney General
suggests, the court’s failure to make a finding regarding
excusable neglect may be remedied by remanding the question
to the trial court. We have the authority under section 1260
not merely to “reverse, affirm, or modify a judgment or order
appealed from,” or to “order a new trial,” but also to “remand the
cause to the trial court for such further proceedings as may be
just under the circumstances.” (§ 1260.) Our Supreme Court has
held that we may use this authority in appropriate circumstances
to allow the trial court to make certain factual findings even
after trial. “ ‘[W]hen the validity of a conviction depends solely
on an unresolved or improperly resolved factual issue which is
distinct from issues submitted to the jury, such an issue can be
determined at a separate post-judgment hearing and if at such
hearing the issue is resolved in favor of the People, the conviction
may stand.’ [(People v. Vanbuskirk (1976) 61 Cal.App.3d 395,
405 (Vanbuskirk).] In other words, ‘when the trial is free of
prejudicial error and the appeal prevails on a challenge which

-- 8 of 43 --

9
establishes only the existence of an unresolved question which
may or may not vitiate the judgment, appellate courts have,
in several instances, directed the trial court to take evidence,
resolve the pending question, and take further proceedings giving
effect to the determination thus made.’ ” (People v. Moore (2006)
39 Cal.4th 168, 176–177 (Moore).)
Thus, in Moore, where the trial court denied the
defendant’s suppression motion on an erroneous ground, and
the defendant was subsequently convicted, the Court remanded
the case to the trial court to hold a new suppression hearing
to reconsider the suppression motion on alternative grounds.
(Moore, supra, 39 Cal.4th at p. 176.) Similarly, in Vanbuskirk,
the trial court erred by refusing to consider the defendant’s
motion to exclude a witness’s identification of the defendant
on the ground that it was tainted by an improper photo
identification. (Vanbuskirk, supra, 61 Cal.App.3d at p. 401.)
The court remanded the case to the trial court to determine
whether the identification process was unfair, and depending
on the outcome, either pronounce judgment or grant a new trial.
(Id. at p. 407.) In People v. MacDonald (1972) 27 Cal.App.3d
508, 511–512, the court remanded the case to the trial court
to determine whether the defendant’s constitutional right to a
speedy trial had been violated.
We see no reason the same remedy is not appropriate
in this case. The question regarding the reasons for the
prior dismissals of Villareal’s case is “distinct from issues the
jury must consider” (Moore, supra, 39 Cal.4th at p. 177), and
if resolved against Villareal would not call into question the
validity of the trial or the jury’s verdict in any way.

-- 9 of 43 --

10
Villareal objects, noting that when the Supreme Court
in Juarez, supra, 62 Cal.4th 1164 held that the trial court
improperly allowed a defendant’s prosecution to continue in spite
of two prior dismissals, it did not remand the case to the trial
court to determine whether one of the prior dismissals was due
to excusable neglect. Instead, it simply reversed the defendant’s
conviction. (Id. at p. 1175.) Villareal contends that we are
bound to do the same. We disagree. “Cases are not authority for
matters not considered.” (People v. Stone (2009) 46 Cal.4th 131,
140.) There is no indication in Juarez that any party raised the
possibility of remanding the case for a determination of whether
one of the dismissals was for excusable neglect, nor that the
Court considered the possibility.
Villareal also argues that he is disadvantaged because by
the time the trial court decides this question, several years will
have passed since the prior dismissals, which took place in 2016
and 2017. We disagree. As the Court explained in Moore, supra,
39 Cal.4th at pages 177–178, “ ‘[w]e are not persuaded that
relitigation should have been denied because of delay. Delays
that are the product of the normal appellate process do not
implicate due process concerns.’ ” In Moore, the court remanded
to allow the parties to relitigate a suppression motion in which
the defendant bore the burden of proof. In this case, it is the
prosecution’s burden to show that one of the prior dismissals was
the result of excusable neglect. (Miller v. Superior Court (2002)
101 Cal.App.4th 728, 747 [“since the prosecution is procedurally
barred from proceeding with a third prosecution except in limited
circumstances, it should bear the burden of establishing the
existence of those circumstances”].) Thus, to the extent the
prosecution is unable to recall or produce evidence regarding the

-- 10 of 43 --

11
circumstances of the prior dismissals, that is to Villareal’s
benefit.
Section 1387.1 allows a case to be refiled after two prior
dismissals in cases of excusable neglect only in cases alleging
violent felonies. Attempted murder is a violent felony under
section 667.5, subdivision (c), but assault with a firearm is not.3
(See § 667.5, subd. (c)(12); Sinclair, supra, 166 Cal.App.4th
at p. 856.) Thus, upon remand, the trial court must make a
finding regarding whether one of the dismissals was due solely
to excusable neglect only as to count 1 for attempted murder.
Count 2 for assault with a firearm must be dismissed regardless.
B. Substantial Evidence of Attempted Murder
Villareal contends that there was no substantial evidence
to support his conviction of attempted murder in two respects:
He argues that the evidence was insufficient to show that he was
the person at the scene, or that, if he was the person on the scene,
he was liable for the shooting. We disagree.
In reviewing sufficiency of the evidence, we ask “whether,
on the entire record, a rational trier of fact could find the
defendant guilty beyond a reasonable doubt. . . . [W]e must view
the evidence in the light most favorable to the People and must
3 Section 667.5, subdivision (c)(8) defines as a violent
felony “[a]ny felony in which the defendant uses a firearm which
use has been charged and proved as provided in subdivision (a)
of Section 12022.3, or Section[s] 12022.5 or 12022.55,” but
Villareal did not use a firearm, nor did the prosecution charge
and prove a firearm enhancement with respect to count 2.
The Attorney General offers no argument that assault with a
firearm is a violent felony under any other part of section 667.5,
subdivision (c).

-- 11 of 43 --

12
presume in support of the judgment the existence of every fact
the trier could reasonably deduce from the evidence.” (People v.
Ochoa (1993) 6 Cal.4th 1199, 1206.) “Because the sufficiency
of the evidence is ultimately a legal question, we must examine
the record independently for ‘ “substantial evidence—that is,
evidence which is reasonable, credible, and of solid value” ’ that
would support a finding beyond a reasonable doubt. (People v.
Boyce (2014) 59 Cal.4th 672, 691 . . . .)” (People v. Banks (2015)
61 Cal.4th 788, 804.)
Villareal contends that there was insufficient evidence
to establish his identity at the scene. He argues that statements
to police by the victim, who was the sole eyewitness, are
insufficient because the victim recanted when testifying at trial.
At trial, the victim claimed he could not identify the man who
stood at the passenger side door, and said he did not remember
identifying Villareal from a photo lineup.
A witness’s out of court statements can serve as evidence
to convict a defendant even if the witness later recants. (People
v. Cuevas (1995) 12 Cal.4th 252, 276–277.) Indeed, initial out-of-
court statements may be more reliable than later recantations,
especially where the witness offers no explanation for why his
statements regarding past events changed, and where there is
evidence that the witness changed his statements as a result of
fear or intimidation. (Id. at p. 268.)
In this case, the victim offered no plausible explanation for
why he changed his testimony. One possible explanation is that
he was the victim of an intimidation campaign instigated at least
in part by Villareal. In a recorded jailhouse phone call, Villareal
discussed the case with a friend and appeared particularly
concerned that a witness had identified Villareal from a photo

-- 12 of 43 --

13
lineup. Villareal told his friend to tell “that dude to not, you
know—to not point at my face, dude, because if not, it’s going
to go—” “–fucking bad for him.” “[T]ell that dude to remove
my fucking face from there, dude.” The potential for witness
intimidation is one of the reasons “we routinely view recantations
with suspicion.” (In re Hall (1981) 30 Cal.3d 408, 418.)
Villareal also argues the identification was not credible
because the witness had a criminal record and might have been
biased against Villareal. He notes that the circumstances of
the identification were not ideal because it was dark outside
and that the victim may have been traumatized by having been
shot. In making these arguments, Villareal asks us in essence to
reweigh the evidence. That is not our function. “[T]he credibility
of witnesses and the weight to be accorded to the evidence are
matters exclusively within the province of the trier of fact.”
(People v. Misa (2006) 140 Cal.App.4th 837, 842.) The jury could
reasonably conclude that the victim’s identification was accurate.
Villareal was not a stranger to the victim. They had interacted
before and knew each other from the neighborhood. In addition,
Villareal had a motive to steal the victim’s brother’s car because
he was angry that the victim had thwarted his earlier attempt
to break into the victim’s home. Villareal also displayed a
consciousness of guilt in asking his friend to intimidate the
victim to prevent him from testifying. A jury could reasonably
conclude that the victim’s original identification of Villareal
was accurate, and that he recanted that statement as a result
of Villareal’s intimidation.
Villareal also contends that even if he was present at the
scene, there was insufficient evidence to show that he was guilty
of attempted murder, either under a theory of direct aiding and

-- 13 of 43 --

14
abetting, or natural and probable consequences. We need not
decide whether there was sufficient evidence to convict Villareal
on a theory of direct aiding and abetting because there was
sufficient evidence on a natural and probable consequences
theory.
To be guilty of aiding and abetting a crime, a person must
“act[ ] ‘with knowledge of the criminal purpose of the perpetrator
and with an intent or purpose either of committing, or of
encouraging or facilitating commission of, the offense.’ ”
(People v. Chiu (2014) 59 Cal.4th 155, 161 (Chiu).) An aider
and abettor’s criminal liability is not limited to the crime he
directly assisted the perpetrator to commit, however. In addition,
the aider and abettor is also guilty “ ‘ “of any other crime the
perpetrator actually commits [nontarget offense] that is a natural
and probable consequence of the intended crime.” ’. . . [¶] A
nontarget offense is a ‘ “natural and probable consequence” ’ of
the target offense if, judged objectively, the additional offense
was reasonably foreseeable.” (Ibid.)
In this case, there was sufficient evidence for a reasonable
jury to conclude that Villareal aided and abetted Reyes in
committing an attempted burglary, and that the attempted
murder of Aguilar was a natural and probable consequence of
the attempted burglary. Villareal argues there was insufficient
evidence of attempted burglary because the prosecution
presented no evidence that the car doors were locked and the
windows were shut. (See § 459 [defining burglary in part as
entry into a “vehicle . . . when the doors are locked . . . with intent
to commit grand or petit larceny or any felony”].) We disagree.
Aguilar testified that just prior to the shooting, he saw Reyes
“[t]ry to open the door” of the car. A jury could reasonably infer

-- 14 of 43 --

15
from the fact that Reyes was apparently unable to open the
door and was not reaching through the windows that the car’s
doors were locked and the windows rolled up. Furthermore,
a jury could reasonably conclude that the attempted murder
was a natural and probable consequence of the burglary.
“ ‘ “[A] natural and probable consequence is a foreseeable
consequence . . . .” ’ [Citation.] But ‘to be reasonably foreseeable
“[t]he consequence need not have been a strong probability;
a possible consequence which might reasonably have been
contemplated is enough.” ’ ” (People v. Medina (2009) 46 Cal.4th
913, 920.) A reasonable person in Villareal’s circumstances could
have foreseen that someone might confront him and Reyes during
the burglary, and that Reyes might attempt to kill that person
by firing a gun at him. (See id. at pp. 921–922 [prior knowledge
that codefendant was armed is not necessary to conclude that
shooting was a natural and probable consequence of a crime].)
C. The Application of Senate Bill No. 1437
to Attempted Murder
In Chiu, the Supreme Court held that a defendant could
not be convicted of first degree murder on the basis of the natural
and probable consequences doctrine, reasoning that the mental
state required for first degree murder, including “elements of
willfulness, premeditation, and deliberation” are “uniquely
subjective and personal.” (Chiu, supra, 59 Cal.4th at p. 166.)
A defendant could not be guilty of first degree murder unless he
actually displayed that mental state. (Ibid.) The Court in Chiu
held that defendants could still be guilty of second degree murder
on a natural and probable consequences theory, however. (Ibid.)
In 2018, the Legislature enacted Senate Bill No. 1437,
which moved beyond Chiu and eliminated the natural and

-- 15 of 43 --

16
probable consequences doctrine as a theory of guilt for second
degree murder. (See Senate Bill No. 1437 (2017–2018 Reg. Sess.)
§ 2 [amending section 188].) Under the new law, “in order to be
convicted of murder, a principal in a crime shall act with malice
aforethought. Malice shall not be imputed to a person based
solely on his or her participation in a crime.” (§ 188, subd. (a)(3),
as amended by Senate Bill No. 1437 (2017–2018 Reg. Sess.) § 2.)4
The bill also created a procedure by which a defendant convicted
of murder under a natural and probable consequences theory
may petition for relief in the trial court. (See Senate Bill
No. 1437 (2017–2018 Reg. Sess.) § 4 [enacting section 1170.95].)
Villareal contends that Senate Bill No. 1437 also abolishes the
natural and probable consequences doctrine in cases of attempted
murder, and that the law applies retroactively to him so that
he may raise the issue on direct appeal and need not petition for
relief under section 1170.95. We disagree.
Villareal contends that he may raise arguments based on
Senate Bill No. 1437 on direct appeal, and need not file a petition
under section 1170.95 in the trial court. “When an amendatory
statute . . . lessens the punishment for a crime . . . , it is
4 The only exception is in cases of felony murder, in which
a defendant who participated in one of certain enumerated
felonies that resulted in the death of a victim may still be guilty
of murder even if he did not act with malice aforethought. (See
§§ 188, subd. (a)(3), 189, subds. (a) & (e).) Even in those cases,
however, under Senate Bill No. 1437, a defendant is not guilty
of murder merely by participating in a felony; instead, he must
have either acted with reckless indifference to human life or
personally solicited or participated in the killing. (See § 189,
subd. (e), as amended by Senate Bill No. 1437 (2017–2018) § 3.)

-- 16 of 43 --

17
reasonable for courts to infer, absent evidence to the contrary
and as a matter of statutory construction, that the Legislature
intended the amendatory statute to retroactively apply to the
fullest extent constitutionally permissible—that is, to all cases
not final when the statute becomes effective.” (People v. Garcia
(2018) 28 Cal.App.5th 961, 972.) Because Villareal’s conviction
was not yet final when Senate Bill No. 1437 became effective on
January 1, 2019, he argues that he is eligible for relief on direct
appeal.
The Attorney General argues that Villareal may not obtain
relief on direct appeal because the Legislature, in enacting
section 1170.95, intended for that section to provide the exclusive
mechanism for retroactive relief under the law. In People v.
Martinez (2019) 31 Cal.App.5th 719, our colleagues in Division 5
agreed with this position: “That the Legislature specifically
created this mechanism, which facially applies to both final
and nonfinal convictions, is a significant indication Senate
Bill [No.] 1437 should not be applied retroactively to nonfinal
convictions on direct appeal.” (Id. at p. 727; accord, People v.
Lopez (2019) 38 Cal.App.5th 1087, 1113 (Lopez), review granted
Nov. 13, 2019, S258175; People v. Anthony (2019) 32 Cal.App.5th
1102, 1152–1153.)
We need not decide whether section 1170.95 is the
exclusive method for obtaining retroactive relief because even
if Villareal were entitled to seek relief on direct appeal, his claim
would fail on the merits. Senate Bill No. 1437 unambiguously
repeals the natural and probable consequences doctrine with
respect to murder, but not attempted murder. As the court
explained in Lopez, supra, 38 Cal.App.5th 1087, the language
of Senate Bill No. 1437 refers only to murder, not attempted

-- 17 of 43 --

18
murder. Furthermore, the text “expressly identifies its purpose
as the need ‘to amend the felony murder rule and the natural
and probable consequences doctrine, as it relates to murder, to
ensure that murder liability is not imposed on a person who is
not the actual killer, did not act with the intent to kill, or was
not a major participant in the underlying felony who acted with
reckless indifference to human life.’ (Stats. 2018, ch. 1015, § 1,
subd. (f).) Had the Legislature meant to bar convictions for
attempted murder under the natural and probable consequences
doctrine, it could . . . have done so.” (Lopez, supra, at p. 1104.)
Its failure to refer to attempted murder in the legislation reflects
a decision not to alter the natural and probable consequences
doctrine in cases of attempted murder. (Ibid.; accord, People v.
Munoz (2019) 39 Cal.App.5th 738, 753–760, review granted Nov.
26, 2019, S258234.)
Villareal contends that this conclusion is contrary to the
language of the newly amended section 188, which provides that
except in cases of felony murder, “in order to be convicted of
murder, a principal in a crime shall act with malice aforethought.
Malice shall not be imputed to a person based solely on his or her
participation in a crime.” (§ 188, subd. (a)(3).) In cases of direct
liability, attempted murder requires an even stricter mental state
than murder. Whereas a defendant may be guilty of murder
simply by acting with conscious disregard for human life (People
v. Bland (2002) 28 Cal.4th 313, 327), attempted murder requires
the specific intent to kill. (People v. Smith (2005) 37 Cal.4th
733, 739.) If malice aforethought is now required for any murder

-- 18 of 43 --

19
conviction, Villareal argues that the same should be true for
attempted murder.5
We are not persuaded. As the court explained in Lopez,
the natural and probable consequences doctrine “imposes
vicarious liability for any offense committed by the direct
perpetrator that is a natural and probable consequence of the
target offense. It is not an implied malice theory; the mens rea
of the aider and abettor with respect to the nontarget offense,
actual or imputed, is irrelevant. (Chiu, supra, 59 Cal.4th at
p. 164.) Rather, liability is imposed because a reasonable person
could have foreseen the commission of the additional offense.”
(Lopez, supra, 38 Cal.App.5th at pp. 1102–1103, fn. omitted.)
The malice requirement imposed by Senate Bill No. 1437 applies
only to murder, not attempted murder. A defendant may be
guilty of attempted murder under a natural and probable
consequences theory even if he did not personally act with malice.
(Lopez, supra, at p. 1106.)
Nor do we agree with Villareal’s contention that the
application of the natural and probable consequences doctrine
to attempted murder violates his constitutional right to
equal protection under the law. “ ‘The first prerequisite to
a meritorious claim under the equal protection clause is a
showing that the state has adopted a classification that affects
two or more similarly situated groups in an unequal manner.’
5 In two recent cases, the Fifth Appellate District agreed
with Villareal’s position and disagreed with Lopez. (See People v.
Larios (2019) 42 Cal.App.5th 956, 964–968, petn. for
review pending; People v. Medrano (2019) 42 Cal.App.5th
1001, 1012–1016, petn. for review pending.) We disagree
with the reasoning of these two cases and agree with Lopez.

-- 19 of 43 --

20
[Citations.] This initial inquiry is not whether persons are
similarly situated for all purposes, but ‘whether they are
similarly situated for purposes of the law challenged.’ ” (Cooley v.
Superior Court (2002) 29 Cal.4th 228, 253.) “If the two groups
are not similarly situated or are not being treated differently,
then there can be no equal protection violation.” (Lopez, supra,
38 Cal.App.5th at p. 1108.)
Villareal’s contention fails because “those charged with, or
found guilty of, murder are, by definition, not similarly situated
with individuals who face other, less serious charges.” (Lopez,
supra, 38 Cal.App.5th at p. 1109.) And although they are closely
related, “[m]urder and attempted murder are separate crimes.”
(Ibid., citing People v. Marinelli (2014) 225 Cal.App.4th 1, 5 [“[i]t
is well established that ‘ “[a]n attempt is an offense ‘separate’
and ‘distinct’ from the completed crime” ’ ”].) The Legislature
unequivocally singled out murder as the target of reform in
Senate Bill No. 1437. The text of the bill states that its purpose
was “to more equitably sentence offenders in accordance
with their involvement in homicides.” (Senate Bill No. 1437
(2017-2018 Reg. Sess.) § 1(b).) Murder requires a much greater
sentence than attempted murder, with a term of 15 years to life
for second degree murder (see § 190, subd. (a)), as opposed to a
five-year minimum for attempted murder. (See § 664, subd. (a).)
“The Legislature could have reasonably concluded reform in
murder cases ‘was more crucial or imperative’ ” (Lopez, supra,
38 Cal.App.5th at p. 1112) and limited the law to those cases in
order to preserve the limited resources of the judicial system.
We are aware that our interpretation of Senate Bill
No. 1437 leads to the strange consequence that a defendant
who commits a crime in which a codefendant attacks a victim

-- 20 of 43 --

21
may now receive a lesser sentence if the victim dies than if
he survives. If Reyes had been a more accurate marksman,
Villareal likely would have been convicted of murder, not
attempted murder. If he could make the required showings,
he could have obtained a reversal of his conviction under
section 1170.95. Because Aguilar survived, Villareal was
convicted of attempted murder and is not eligible for relief. In
an earlier case, our Supreme Court warned against imposing
greater punishment for attempted murder than for murder: A
“[d]efendant should not be penalized because one of his victims
survived; he should not be made to regret not applying the coup
de grâce to that victim.” (People v. King (1993) 5 Cal.4th 59, 69.)
But Senate Bill No. 1437 applies only to those who did not
directly take part in a murder. If a defendant is in a position to
decide whether or not to “apply[ ] the coup de grâce to [a] victim”
(People v. King, supra, 5 Cal.4th at p. 69), he would be guilty as a
perpetrator or direct aider and abettor, not under a natural and
probable consequences theory. More importantly, any reasonable
interpretation of Senate Bill No. 1437 requires us to conclude
that the Legislature intended to provide relief to certain
defendants convicted of murder, but not those convicted of what
we ordinarily consider lesser offenses. Under any interpretation
of Senate Bill No. 1437, the natural and probable consequences
doctrine remains in effect for many offenses that carry lengthy
prison sentences.
D. Motion for New Trial
After his conviction, Villareal filed a motion for a new
trial on two grounds: that the jury’s verdict was contrary to
the evidence, and that he had obtained new material evidence.
(See § 1181, subds. (6) & (8).) Villareal contends that the trial

-- 21 of 43 --

22
court abused its discretion when it denied the motion. He argues
that if the jury had heard expert testimony that he suffered from
psychological problems including fetal alcohol spectrum disorder,
it might not have convicted him of attempted murder. He also
argues that the trial court applied an incorrect standard when
considering his claim that the verdict was contrary to the
evidence.
“A trial court has broad discretion in ruling on a motion
for a new trial, and there is a strong presumption that it properly
exercised that discretion. ‘ “The determination of a motion for a
new trial rests so completely within the court’s discretion that its
action will not be disturbed unless a manifest and unmistakable
abuse of discretion clearly appears.” ’ ” (People v. Davis (1995)
10 Cal.4th 463, 524.) Because we reject both grounds on which
his motion was based, we conclude that the trial court did not
abuse its discretion by denying Villareal’s motion.
1. Newly discovered evidence
In preparation for a youthful offender parole hearing
(see § 3051) following Villareal’s conviction, two psychologists
examined Villareal and concluded that he was suffering from a
number of psychological ailments, most notably fetal drug and
alcohol syndrome. In his motion for a new trial, Villareal argued
that the psychologists’ reports constituted newly discovered
evidence that called his conviction into question. He argued
that if the psychologists had been able to offer expert testimony
regarding his conditions, he might have been able to convince the
jury that he was incapable of forming the specific intent required
to assist Reyes in committing the attempted burglary, and
that he could not have foreseen that the shooting was a natural
and probable consequence of the attempted burglary. As part of

-- 22 of 43 --

23
the motion for a new trial, one of the psychologists filed a report
in which he stated that because of the fetal drug and alcohol
syndrome, Villareal “would have little ability to analyze in any
thoughtful way, let alone be aware of and appreciate, the grave
consequences of participation with his co-defendant.” The trial
court denied the motion, concluding that even assuming the
psychologists’ reports constituted newly discovered evidence
that could not have been produced at trial, Villareal had failed to
demonstrate a probability that its inclusion would have produced
a better result for him at trial.
A trial court may grant a defendant’s motion for a
new trial “[w]hen new evidence is discovered material to the
defendant, and which he could not, with reasonable diligence,
have discovered and produced at the trial.” (§ 1181, subd. (8).)
“ ‘In ruling on a motion for new trial based on newly discovered
evidence, the trial court considers the following factors: “ ‘1. That
the evidence, and not merely its materiality, be newly discovered;
2. That the evidence be not cumulative merely; 3. That it be such
as to render a different result probable on a retrial of the cause;
4. That the party could not with reasonable diligence have
discovered and produced it at the trial; and 5. That these facts
be shown by the best evidence of which the case admits.’ ” ’ ”
(People v. Howard (2010) 51 Cal.4th 15, 43.)
The trial court denied Villareal’s motion because it
concluded that he failed to meet the third factor listed above,
to demonstrate that a different result would be probable on a
retrial. Villareal argues that this was an abuse of discretion.
He argues that the psychologists’ testimony would have been
useful in calling into question his mental state at the time of
the crime. The trial court considered this argument carefully,

-- 23 of 43 --

24
and its conclusion rejecting Villareal’s argument was reasonable.
The jury heard excerpts of Villareal’s jailhouse phone calls,
in which he encouraged a friend to try to intimidate Aguilar
to prevent him from testifying at trial. Expert testimony of
Villareal’s inability to plan ahead and foresee the consequences
of his actions would be unlikely to persuade a jury that had
already listened to him engaging in just that kind of behavior.
Further, to the extent the evidence would have been proferred
to show Villareal’s inability to anticipate the attempted murder,
it is irrelevant because the natural and probable consequences
doctrine is not subjective but objective. (See Chiu, supra,
59 Cal.4th at p. 164 [“ ‘culpability is imposed simply because
a reasonable person could have foreseen the commission of the
nontarget crime’ ”].) Thus, Villareal’s actual state of mind would
not be relevant.
2. Contrary to law or evidence
In his motion for a new trial, Villareal also argued for
relief on a second ground—that the verdict was contrary to law
or evidence. (§ 1181, subd. (6).) In the hearing on the motion, the
trial court did not address Villareal’s argument on this ground.
After discussing why it was not convinced that Villareal was
entitled to a new trial on the basis of newly discovered evidence,
the court simply stated, “[t]he new trial motion is respectfully
denied.” Villareal argues that we should infer from this lack of
discussion that the trial court either failed to make a decision on
his second argument, or that the court applied an incorrect
standard. We are not persuaded.
Villareal’s only basis for claiming that the trial court
applied an erroneous standard is a comment the prosecutor
made during the hearing on the motion. The prosecutor stated

-- 24 of 43 --

25
that Villareal’s argument “sounds more like [a section] 1118
argument.” Villareal is correct that the standard for deciding
a motion for a new trial under section 1181, subdivision (6) is
different from the standard for entering a judgment of acquittal
for insufficient evidence under section 1118.1.6 In a motion
under section 1118.1, “ ‘ “the relevant question is whether,
after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” ’ ”
(Porter v. Superior Court (2009) 47 Cal.4th 125, 132.) By
contrast, “[t]he court extends no evidentiary deference in
ruling on a section 1181[, subdivision] (6) motion for new trial.
Instead, it independently examines all the evidence to determine
whether it is sufficient to prove each required element beyond a
reasonable doubt to the judge, who sits, in effect, as a ‘13th
juror.’ ” (Id. at p. 133.)
But we cannot conclude on the basis of a single stray
comment from the prosecutor that the trial court applied
the wrong standard. Nor may we infer from the trial court’s
silence on the question that the court simply neglected to decide
whether Villareal was entitled to a new trial under section 1181,
subdivision (6). Villareal cites no law requiring the trial court
to provide an explanation with respect to every ground that a
party raises in a motion for a new trial. We therefore apply
the ordinary rule when the court does not explain its reasoning:
6 In his comment, the prosecutor referred to section 1118.
That section deals with judgments of acquittal in bench trials.
Because Villareal was tried by jury, we infer that the prosecutor
meant to refer to section 1118.1.

-- 25 of 43 --

26
“ ‘In the absence of evidence to the contrary, we presume that
the court “knows and applies the correct statutory and case
law.” ’ ” (People v. Jones (2017) 3 Cal.5th 583, 616.)
E. Jury Instruction on Pattern of Gang Activity
Villareal contends that the trial court erred by instructing
the jury incorrectly regarding the gang enhancement on his
attempted murder conviction. Villareal identifies two alleged
errors in the instruction. First, the instruction did not state that
the prosecution needed to prove at least two predicate offenses in
order to show a pattern of gang activity. Second, the instruction
stated that unlawful possession of a firearm was a predicate
offense, even though not all offenses in that category are within
the statutory definition. We conclude that any error in the
instructions was harmless.
In order to prove a gang enhancement under
section 186.22, the prosecution must show that the defendant
acted for the benefit of a gang with knowledge that its members
engage in a “pattern of criminal gang activity.” (§ 186.22,
subd. (a).) This term is in turn defined as “the commission of,
attempted commission of, conspiracy to commit, or solicitation
of, sustained juvenile petition for, or conviction of two or more of ”
certain predicate offenses. (§ 186.22, subd. (e), italics added.)
At a hearing prior to closing arguments, the trial court indicated
to the parties that it planned to instruct the jury regarding the
gang enhancement pursuant to the CALCRIM No. 1401 pattern
instruction. That instruction mirrors the text of the statute
in defining “pattern of criminal gang activity” to mean “two or
more” predicate crimes, or “two or more occurrences of ” the same
predicate crime.

-- 26 of 43 --

27
Reyes’s counsel objected to this portion of the instruction,
arguing that the language was unnecessary and potentially
confusing because she conceded that her client’s gang committed
at least two predicate offenses among its primary activities. The
court asked, “So can we all agree to take those paragraphs out
then?” Villareal’s trial counsel replied, “I do,” and the court
removed the language from the instruction. The trial court
ultimately gave the jury the following instruction: “ ‘A pattern
of criminal activity’ as used here, means the commission of,
attempted commission of, conspiracy to commit, or conviction
of at least one of the following crimes: [¶] Murder, attempted
murder, unlawful possession of a firearm, burglary, and shooting
at an inhabited dwelling.” (Italics added.)
The Attorney General argues that Villareal either invited
the error or forfeited any objection to it. We disagree. The
ordinary rule requiring a defendant to object in the trial court
in order to preserve an error does not apply to an error where
an instruction omits an element of an offense. (People v. Tillotson
(2007) 157 Cal.App.4th 517, 538.) We may review instructional
error “even though no objection was made thereto in the lower
court, if the substantial rights of the defendant were affected
thereby.” (§ 1259.) It is true that “ ‘The doctrine of invited error
bars a defendant from challenging an instruction given by the
trial court when the defendant has made a “conscious and
deliberate tactical choice” to “request” the instruction’ ” (People
v. Weaver (2001) 26 Cal.4th 876, 970), but in this case, it was
Reyes, not Villareal, who requested the instruction. Villareal
merely assented to the instruction with no indication of doing so
for a deliberate tactical reason. This is insufficient to constitute

-- 27 of 43 --

28
invited error by Villareal. (See People v. Johnson (2016)
243 Cal.App.4th 1247, 1267–1268.)
Nevertheless, we reject Villareal’s argument on the merits
because any errors in the instructions were harmless. As the
Attorney General points out, Reyes’s trial counsel requested
the removal of the language regarding “two or more” predicate
crimes because the jury would need to make a decision on the
gang enhancement only if it found the defendants guilty of
either attempted murder or assault with a firearm. Both of
those offenses are predicate offenses for the gang enhancement
(see § 186.22, subd. (e)(1)–(3)) and could be used as one of the
two offenses to establish a pattern of gang activity. (See People
v. Bragg (2008) 161 Cal.App.4th 1385, 1401.) In that case, the
jury would need to find only one additional predicate offense,
as accurately reflected in the modified jury instructions. The
instructions clearly indicated that the current offense was not
sufficient on its own to establish a pattern of gang activity. They
required the jury to find that “[t]he most recent crime occurred
within three years of one of the earlier crimes,” and that “[t]he
crimes were committed on separate occasions or were personally
committed by two or more persons.”
Nor was Villareal prejudiced by the instruction stating
that unlawful possession of a handgun could serve as a predicate
offense. Villareal is correct that only certain forms of unlawful
possession of a firearm are included within the statutory
definition. (See § 186.22, subd. (e)(23) & (31)–(33).) But in
this case, the only allegation involving unlawful possession of a
firearm was a conviction by a member of the Loco Park gang of
carrying a concealed firearm, in violation of section 25400. That
is a predicate offense for a pattern of criminal gang activity. (See

-- 28 of 43 --

29
§ 186.22, subd. (e)(32).) Thus, there is no possibility that the jury
relied on a non-predicate offense involving unlawful possession
of a firearm in finding the gang enhancement true.
F. Instruction Allowing for Conviction on
an Incorrect Theory
Villareal contends that in two instances, the trial court
gave the jury instructions that would have allowed the jury to
convict him on the basis of a legally incorrect theory. He argues
that this requires reversal under the rule of People v. Guiton
(1993) 4 Cal.4th 1116, 1122 (Guiton). “ ‘[W]hen the prosecution
presents its case to the jury on alternate theories, some of which
are legally correct and others legally incorrect, and the reviewing
court cannot determine from the record on which theory the
ensuing general verdict of guilt rested, the conviction cannot
stand.’ ” We do not agree that the trial court erred in either
instance.
1. Natural and probable consequences
instruction
The first alleged error occurred in the instructions
regarding the application of the natural and probable
consequences doctrine. The court instructed the jury as follows:
“To prove that [the defendant] is guilty of attempted
murder or assault with a firearm, the People must prove that:
“1. The defendant is guilty of attempted auto burglary;
“2. During the commission of attempted auto burglary
a coparticipant in that attempted auto burglary committed the
crime of attempted murder or assault with a firearm;
“AND
“3. Under all of the circumstances, a reasonable

-- 29 of 43 --

30
person in the defendant’s position would have known
that the commission of the attempted murder or assault
with a firearm was a natural and probable consequence
of the commission of the attempted auto burglary.”
Villareal contends that this instruction was legally
incorrect because it failed to distinguish between attempted
murder and assault with a firearm. Because the instruction
repeatedly referred to “attempted murder or assault with
a firearm” within the same instruction and with no clear
separation, Villareal argues that the jury might have mixed
and matched the two crimes, and might have concluded that he
was guilty of attempted murder because a reasonable person in
the defendant’s position would have known that assault with a
firearm was a natural and probable consequence of the attempted
burglary.
We are not persuaded. Villareal’s proposed reading
is a tortured and unnatural interpretation of the instruction.
Any reasonable juror reading the instruction would understand
that to prove attempted murder, it was necessary to show that
attempted murder, not assault with a firearm, was a natural
and probable consequence of the attempted burglary. Although
it might have been preferable for the court to have included
the word “respectively” in the instruction, or to have issued a
separate instruction for each offense, the lack of such punctilious
clarification does not render the instructions legally incorrect.
2. The gang enhancement
Villareal also alleges Guiton error in the instruction on
the gang enhancement. The instruction in question stated that
if the jurors found the defendant guilty, they would then have
to “decide whether, for each crime, the People have proved the

-- 30 of 43 --

31
additional allegation that the defendant committed the crime
for the benefit of, at the direction of, or in association with a
criminal street gang.” Villareal was a member of a gang known
as Loco Park, and Reyes was a member of an allied gang known
as Burlington Locos. The prosecution presented evidence that
Loco Park engaged in a pattern of criminal gang activity, but did
not present any evidence regarding Burlington Locos’s pattern
of criminal conduct. Villareal contends that the instruction was
deficient because it failed to specify for the benefit of which gang
the crimes were committed.
This is not Guiton error because the instruction did not
present the jury with a legally incorrect theory. (See Guiton,
supra, 4 Cal.4th at p. 1122.) Villareal’s complaint is that
the instruction allowed for the possibility that the jury would
conclude that the crimes were for the benefit of the Burlington
Locos gang, when the prosecution failed to present enough
evidence that Burlington Locos was in fact a criminal street
gang. But “the jury is fully equipped to detect” defects in the
facts supporting the prosecution’s case. (Id. at p. 1129.) If the
jury found the gang enhancement true, we infer that the jury
concluded that the crime was in fact for the benefit of Loco
Park, the only gang for which there was sufficient evidence in
the record. We will not infer that the jury relied on a theory
without evidentiary support unless “the record affirmatively
demonstrates there was prejudice, that is, if it shows that the
jury did in fact rely on the unsupported ground.” (Ibid.) Villareal
has pointed to no such evidence of prejudice in the record.
G. Instruction on Attempted Voluntary
Manslaughter as Lesser Included Offense

-- 31 of 43 --

32
Villareal contends that the trial court erred by failing
to instruct the jury on attempted voluntary manslaughter as
a lesser included offense of attempted murder. We disagree.
There was insufficient evidence to support a conclusion that
Reyes acted either in a heat of passion or imperfect self-defense,
and thus no instruction on attempted voluntary manslaughter
was required.
Attempted voluntary manslaughter is a lesser included
offense of attempted murder. The only difference between
the two offenses is that in the case of attempted voluntary
manslaughter, the perpetrator acts without malice, attempting
to kill either “upon a sudden quarrel or heat of passion” (§ 192,
subd. (a)) or in “ ‘unreasonable self-defense’—the unreasonable
but good faith belief in having to act in self-defense.” (People
v. Moye (2009) 47 Cal.4th 537, 549.) “The heat of passion
requirement for manslaughter has both an objective and a
subjective component. [Citation.] The defendant must actually,
subjectively, kill under the heat of passion. [Citation.] But the
circumstances giving rise to the heat of passion are also viewed
objectively. . . . ‘[T]his heat of passion must be such a passion
as would naturally be aroused in the mind of an ordinarily
reasonable person under the given facts and circumstances,’
because ‘no defendant may set up his own standard of conduct
and justify or excuse himself because in fact his passions were
aroused, unless further the jury believe[s] that the facts and
circumstances were sufficient to arouse the passions of the
ordinarily reasonable man.’ ” (People v. Steele (2002) 27 Cal.4th
1230, 1252–1253.) Nevertheless, although there is an objective
component to the heat of passion requirement, “in California
the law of provocation focuses on ‘ “emotion[al] reasonableness” ’

-- 32 of 43 --

33
(i.e., ‘whether “the defendant’s emotional outrage or passion
was reasonable” ’), not on ‘ “act reasonableness” ’ (i.e., ‘whether “a
reasonable person in the defendant’s shoes would have responded
or acted as violently as the defendant did.” ’)” (People v. Wright
(2015) 242 Cal.App.4th 1461, 1481–1482.)
The trial court has an obligation to instruct the jury “on
lesser included offenses when the evidence raises a question as to
whether all of the elements of the charged offense were present.”
(People v. Breverman (1998) 19 Cal.4th 142, 154.) This is true
regardless of whether the defendant openly relied on a theory
at trial. (Id. at p. 149.) “We review de novo a trial court’s failure
to instruct on a lesser included offense.” (People v. Millbrook
(2014) 222 Cal.App.4th 1122, 1137.) In so doing, “we review the
evidentiary support for an instruction ‘in the light most favorable
to the defendant’ [citation] and should resolve doubts as to the
sufficiency of the evidence to warrant instructions ‘ “in favor
of the accused.” ’ ” (People v. Wright, supra, 242 Cal.App.4th
at p. 1483.)
The evidence Villareal cites in support of his claim
that an instruction on attempted voluntary manslaughter was
necessary is insufficient. He notes that Aguilar told police after
the shooting that he had had problems with Reyes a few months
earlier. He also notes that after Reyes pulled a gun on Aguilar,
Aguilar said, “[I]f you’re going to shoot, you better shoot.”
Finally, he notes that Aguilar is a large man, while he and Reyes
are thin. Even if we consider this evidence in the light most
favorable to Villareal, it is insufficient to raise a question as to
whether Reyes acted in imperfect self-defense or in a heat of
passion. Aguilar spoke only after Reyes pulled a gun on him,
and there is nothing to suggest that he moved toward Reyes or

-- 33 of 43 --

34
Villareal threateningly or said anything that would arouse the
passion of an ordinary person.

-- 34 of 43 --

35
H. Prosecutor Error
Villareal contends that the prosecutor committed
misconduct during closing arguments by misstating the law
and facts, appealing to the jurors’ sympathy and passions, and
improperly vouching. With respect to all but one of these claims,
Villareal forfeited the claim by failing to object at trial. (People v.
Potts (2019) 6 Cal.5th 1012, 1035 [“ ‘A claim of prosecutorial
misconduct is ordinarily preserved for appeal only if the
defendant made “a timely and specific objection at trial” and
requested an admonition.’ ”].) In addition, Villareal’s arguments
fail on the merits.
“A prosecutor is held to a standard higher than that
imposed on other attorneys because of the unique function he
or she performs in representing the interests, and in exercising
the sovereign power, of the state.” (People v. Hill (1998)
17 Cal.4th 800, 820 (Hill).) “The standards governing review
of [prosecutorial] misconduct claims are settled. ‘A prosecutor
who uses deceptive or reprehensible methods to persuade the
jury commits misconduct, and such actions require reversal
under the federal Constitution when they infect the trial with
such “ ‘unfairness as to make the resulting conviction a denial
of due process.’ ” (Darden v. Wainwright (1986) 477 U.S. 168,
181, . . . ; see People v. Cash (2002) 28 Cal.4th 703, 733 . . . .)
Under state law, a prosecutor who uses such methods commits
misconduct even when those actions do not result in a
fundamentally unfair trial.’ (People v. Alfaro (2007) 41 Cal.4th
1277, 1328 . . . .) ‘In order to preserve a claim of misconduct,
a defendant must make a timely objection and request an
admonition; only if an admonition would not have cured the
harm is the claim of misconduct preserved for review.’ (Ibid.)

-- 35 of 43 --

36
When a claim of misconduct is based on the prosecutor’s
comments before the jury, ‘ “the question is whether there is
a reasonable likelihood that the jury construed or applied any
of the complained-of remarks in an objectionable fashion.” ’ ”
(People v. Friend (2009) 47 Cal.4th 1, 29.) To establish a claim
of misconduct, “bad faith on the prosecutor’s part is not required.
(Hill, [supra, 17 Cal.4th] at pp. 822–823 . . . .) ‘[T]he term
prosecutorial “misconduct” is somewhat of a misnomer to the
extent that it suggests a prosecutor must act with a culpable
state of mind. A more apt description of the transgression is
prosecutorial error.’ ” (People v. Centeno (2014) 60 Cal.4th 659,
666–667.)
Villareal claims that the prosecutor told the jury during
closing arguments that it could find the gang enhancements
true if it concluded that Reyes and Villareal committed their
crimes for the benefit of either Reyes’s Burlington Locos gang or
Villareal’s Loco Park gang, or both. Villareal contends that this
was improper because there was insufficient evidence to show
that Burlington Locos was a criminal street gang as defined
in section 186.22, subdivision (f). In making this argument,
Villareal has misrepresented the record. At no point in the initial
closing argument or in the final summation did the prosecutor
mention either Burlington Locos or Loco Park by name, nor did
he encourage the jury to conclude that the crimes benefited one
or the other. Instead, the prosecutor referred generically to “the
gang.” Although it might have been preferable for the prosecutor
to distinguish carefully between the two gangs, the reference
to a single gang was understandable and did not misrepresent
this case. The prosecution’s gang expert testified that Burlington
Locos and Loco Park were allies, that their members sometimes

-- 36 of 43 --

37
worked together to commit crimes, and that crimes of the type
that Reyes and Villareal were accused of committing would
have benefitted both of their gangs. The prosecutor’s lack of
precision does not call into question the jury’s verdict on the
gang enhancement.
Villareal contends that the prosecutor also committed
misconduct by referring to facts not in evidence in arguing
that Aguilar recanted his prior testimony because he had
been intimidated by gang members. The prosecutor based
this argument on evidence of a recorded jailhouse phone call
in which Villareal solicited a friend to intimidate Aguilar, and
the friend agreed to do so. The prosecutor reasonably argued
that the jury should draw the inference that intimidation by
gang members was the cause of Aguilar’s otherwise unexplained
recantation and inability to remember much of his prior
testimony. “ ‘Although it is misconduct to misstate facts, the
prosecutor “enjoys wide latitude in commenting on the evidence,
including the reasonable inferences and deductions that can
be drawn” ’ ” from it. (People v. Powell (2018) 6 Cal.5th 136, 183.)
Villareal should not now profit from his own misconduct.
Next, Villareal contends that the prosecutor erred by
vouching for the evidence. “It is improper for a prosecutor to
offer assurances that a witness is credible or to suggest that
evidence available to the government but not before the jury
corroborates the testimony of a witness. [Citations.] In either
case, prosecutorial comments may be understood by jurors to
permit them to avoid independently assessing witness credibility
and to rely on the government’s view of the evidence.” (People v.
Cook (2006) 39 Cal.4th 566, 593.) During closing arguments,
the prosecutor said, “I’m going to tell you something right now

-- 37 of 43 --

38
that I hope my bosses don’t hear because I’m probably in
trouble. If you don’t think that this was a natural and probable
consequence, you must vote not guilty for Mr. Villareal. But I’m
not afraid to tell you that.” “I’m not afraid to tell you that, that if
you don’t think this was a natural and probable consequence . . .
absolutely you got to dismiss this case against Mr. Villareal,
but I’m not worried about telling you that because given all the
evidence, I know that you see that it was a natural and probable
consequence.” Although these statements were awkwardly
phrased, they did not constitute vouching. The prosecutor did
not encourage the jury to substitute his or his bosses’ judgment
in place of their own, but rather encouraged the jury to apply
the correct standard to decide whether the shooting was a
natural and probable consequence of the attempted burglary.
The statement “I know that you see that it was a natural and
probable consequence” was a rhetorical flourish, not an attempt
to short circuit the jury’s deliberations.
Finally, Villareal argues that the prosecutor erred by
encouraging the jury to view the crime through the eyes of
a victim. In arguing that the attempted murder was for the
benefit of a gang, the prosecutor stated as follows: “So how
does doing something like this benefit the gang? It just shows
the entire neighborhood I’ll stand in the middle of the street and
shoot you. I don’t care. . . . What makes a gang a gang is that
they’re kind of scary. There’s a reason they’re scary. They rely
on you being scared and intimidated . . . . That’s how it benefits
the gang. . . . [¶] And don’t take my word for it. You can listen
to the phone calls.” (Italics added.) The prosecutor noted that
during the crimes, Reyes stood “in the middle of the street” and
fired his gun, without caring whether anyone saw him. The

-- 38 of 43 --

39
prosecutor added, “What are you going to do about it? Are
you going to walk up to him and tell him ‘Tommy, stop?’ That’s
not going to happen in the community because you’re scared.”
In making these statements, the prosecutor was not
encouraging the jury to view the crime through the eyes of a
victim, but rather using the word “you” in the impersonal sense,
to mean “one” or “anyone.” There was nothing improper about
this manner of speaking.
I. Ineffective Assistance of Counsel
Villareal contends that his trial counsel failed to
represent him adequately in several respects: by failing to
request a limiting instruction on the admissibility of jailhouse
phone conversations that Reyes made; by failing to question
Aguilar at trial about how Villareal reacted when Reyes shot
Aguilar; and by failing to object to the alleged errors in jury
instructions described in part F above, and to the alleged
prosecutor error described in part H above. We have already
rejected that there was prejudicial error with regard to the jury
instructions and prosecutor’s conduct, and we conclude without
further discussion that there was no ineffective assistance of
counsel for failing to object on these points. As to the failure
to request a limiting instruction or to question the victim about
Villareal’s reaction, these alleged deficiencies either did not fall
below the standard of care, or if they arguably did, they did not
prejudice Villareal.
In order to establish ineffective assistance of counsel,
a defendant must show first, that his attorney’s performance
was deficient, and second, that those errors prejudiced him.
(Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).)
We “judge the reasonableness of counsel’s challenged conduct on

-- 39 of 43 --

40
the facts of the particular case, viewed as of the time of counsel’s
conduct.” (Id. at p. 690.) In applying this standard, we “ ‘ “defer
to counsel’s reasonable tactical decisions in examining a claim of
ineffective assistance of counsel [citation], and there is a ‘strong
presumption that counsel’s conduct falls within the wide range
of reasonable professional assistance.’ ” ’ ” (People v. Jones
(2003) 29 Cal.4th 1229, 1254.) To demonstrate prejudice, “[t]he
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.” (Strickland, supra, 466 U.S. at p. 694.) “On direct
appeal, a conviction will be reversed for ineffective assistance
only if (1) the record affirmatively discloses counsel had no
rational tactical purpose for the challenged act or omission,
(2) counsel was asked for a reason and failed to provide one, or
(3) there simply could be no satisfactory explanation. All other
claims of ineffective assistance are more appropriately resolved
in a habeas corpus proceeding.” (People v. Mai (2013) 57 Cal.4th
986, 1009.)
1. Objection to admission of Reyes’s
jailhouse phone calls
Villareal contends that his trial counsel was deficient for
failing to request a limiting instruction on the admissibility of
recorded jailhouse phone conversations involving his codefendant
Reyes, to which Villareal was not a party. In one of these
conversations, Reyes bragged about being a “gang banger.”
In another call, he bragged that everyone in his neighborhood
was afraid of him. In other calls, he told his girlfriend he was
glad that they had burned his black jacket, and asked whether

-- 40 of 43 --

41
she had burned a mask. Villareal argues that although these
statements may have been admissible against Reyes, they were
inadmissible hearsay as applied to Villareal. He contends that
his attorney should have requested a limiting instruction
pursuant to CALCRIM No. 305.7
Villareal’s claim fails because he cannot show that the
lack of a limiting instruction prejudiced him. Reyes’s statements
that he burned the mask and jacket were incriminating as to
Reyes himself, but had no bearing on Villareal’s defense. Reyes
stipulated that he was a member of the Burlington Locos gang,
and his statements in the jailhouse phone calls regarding his
gang activities were largely cumulative. Reyes’s statements
bragging that everyone in his neighborhood was afraid of him
were relatively unimportant in the trial. If the jury had received
an instruction that these statements were not admissible against
Villareal, there is no reasonable probability that Villareal would
have obtained a better outcome in the trial. (See Strickland,
supra, 466 U.S. at p. 694.)
2. Failure to question the victim on
Villareal’s reaction to the shooting
At the preliminary hearing, Aguilar testified that when
Reyes shot him, Villareal appeared “surprised,” and that “[h]e
got stuck. He froze.” During cross-examination of Aguilar at
trial, Villareal’s attorney did not ask Aguilar about this. We
7 The pattern jury instruction CALCRIM No. 305 states,
“You have heard evidence that defendant <insert defendant’s
name> made a statement (out of court/before trial). You may
consider that evidence only against (him/her), not against any
other defendant.”

-- 41 of 43 --

42
reject Villareal’s contention that this amounted to ineffective
assistance of counsel because there is no reasonable probability
that Villareal would have obtained a better result at trial if his
attorney had asked about the errors. (See Strickland, supra,
466 U.S. at p. 694.) Villareal’s surprise at the shooting may
show that he did not expect Reyes to shoot Aguilar, but this is
irrelevant to whether the shooting was a natural and probable
consequence of the attempted burglary.
J. Cumulative Error
Villareal contends that even if no single error requires
reversal, the cumulative effect of the errors was sufficient to
prejudice him. We disagree. The only prejudicial error in this
case was the trial court’s decision to allow the case to proceed
despite two prior dismissals. To the extent the trial court erred
in other respects, the errors were not prejudicial either alone or
in combination.

-- 42 of 43 --

43
DISPOSITION
Appellant’s conviction of assault with a firearm is reversed.
The case is remanded for the trial court to determine whether one
of the two prior dismissals of the case was due solely to excusable
neglect. If the prosecution cannot establish that one of the
two prior dismissals was due solely to excusable neglect, then
appellant’s conviction of attempted murder is reversed.
NOT TO BE PUBLISHED.
ROTHSCHILD, P. J.
We concur:
CHANEY, J.
BENDIX, J.

-- 43 of 43 --