P. v. Villalpando

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Filed 7/14/20 P. v. Villalpando CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
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THE PEOPLE,
Plaintiff and Respondent,
v.
MACARIO VILLALPANDO,
Defendant and Appellant.
C087324
(Super. Ct. No. 16FE002927)
A jury found defendant Macario Villalpando guilty of second degree murder and
also found true the allegation that defendant personally used a firearm during the
commission of that crime, resulting in the victim’s death. The trial court sentenced
defendant to serve an aggregate term of 40 years to life in state prison.
On appeal, defendant contends there was insufficient evidence of malice to
support his murder conviction. He also contends the prosecutor committed prejudicial
error by misstating the law of involuntary manslaughter, a lesser included offense, during
closing argument, thereby reducing the People’s burden of proof on the murder charge.

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Finally, defendant contends the trial court abused its discretion in refusing to reduce the
sentence imposed on the firearm enhancement.
Finding none of defendant’s claims meritorious, we affirm the judgment.
BACKGROUND
Underlying Facts/Charges
The victim and his girlfriend, L.A., lived together on the same property where
L.A. worked for a towing company. The victim sold methamphetamine from a shed on
that property. Sometime between 9:00 p.m. and 10:00 p.m. on February 7, 2016, L.A.
went out to the shed to ask the victim if he wanted something to eat. The door to the shed
was open, the television was on, and the victim was seated behind a desk. Defendant was
standing to the side of the desk.
Defendant and L.A. said hello to each other. L.A. knew defendant because
defendant’s brother and the victim were friends. Defendant had been to their home a few
times before, with his brother. The day before, defendant came over and brought some
potted palms. The victim told L.A. he would be up to the house in five minutes. L.A.
walked back to the house.
No more than 10 minutes later, L.A. heard a gunshot and she heard the victim yell
her name. As she ran toward the shed, she saw defendant walking toward the property’s
gate. Defendant got into a vehicle parked near the fence and backed away. The victim
was lying on his stomach half in and half out of the shed door. He later died from blood
loss from a shotgun wound to his lower left abdomen.
Around 1:00 a.m. on February 8, 2017, defendant arrived at his sister-in-law’s
house. Wet and muddy, defendant appeared to be drunk. Defendant’s brother picked
defendant up around 2:00 a.m. or 3:00 a.m. and drove defendant to get his truck, which
was parked down an embankment. Defendant got a bag from his truck and they went to
get gas for his truck. On the way to get gas, defendant took bullets and three small vials

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containing a clear liquid out of the bag and threw them on the road. After putting gas in
defendant’s truck, his brother followed him home.
The following day, defendant was interviewed by sheriff’s detectives. He initially
denied being involved in the victim’s death. Defendant acknowledged they were friends
and said he gave the victim some potted palms over the weekend. Defendant also
admitted he had a problem with drugs and alcohol. He said he used to go to the victim’s
to drink but he did not want to talk about the victim selling drugs.
When the detectives told defendant his family was upset about what he had done,
defendant admitted to the shooting but said it was an accident. He went there to sell the
victim the gun, he did not know it was loaded, and “[i]t fired.” He got nervous and ran
“ ‘cause I owed him money.” He demonstrated how the victim was holding the gun and
dropped it, suggesting the stock of the shotgun hit the ground, and that caused the gun to
fire. Defendant told deputies he threw the shotgun in the river then ran out of gas on his
way home. He said, again, it was not intentional and was afraid he would “lose his
papers.”
The People charged defendant with murder (Pen. Code, § 1871) and alleged “that
pursuant to subdivisions (b), (c) and (d) of . . . Section 12022.53, and in the commission
and attempted commission of the above offense(s), the defendant, . . . used, and
intentionally and personally discharged a firearm, to wit, a shotgun,[] and thereby
proximately caused great bodily injury or death to [the victim], who was not an
accomplice of the defendant, within the meaning of . . . Section 12022.53 [subdivision]
(d).” (Italics added.) Defendant pleaded not guilty and the matter was set for a jury trial.
1 Undesignated statutory references are to the Penal Code.

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Trial/Judgment/Sentencing
At trial, Dr. Brian Nagao, a forensic pathologist from the Sacramento County
Coroner’s Office testified the entry wound on the victim’s body was consistent with the
muzzle of the gun being less than three feet away. He could not, however, determine
whether the victim was sitting or standing when he was shot.
Defendant testified at trial. He said he drank alcohol daily and was smoking $50
or more of methamphetamine every week. He got his methamphetamine from the victim
and they got along well. The victim would front defendant drugs if defendant did not
have money, and he loaned defendant $100, which defendant paid back. Two weeks
before he killed the victim, the victim helped defendant buy a shotgun.
On the day the victim was shot, defendant owed him $30 or $40. He had not fired
the shotgun and believed it was worth more than $40. He thought the gun would pay off
his debt to the victim and allow him to get more methamphetamine. They reached a deal
for the shotgun and methamphetamine. Defendant had been drinking all day and he
smoked “something” with the victim. As he handed the victim the gun, defendant
testified, the gun went off. Scared, defendant left. He took the shotgun with him and
threw it in the river. Defendant did not tell his parents what happened when he got home
because he was ashamed.
Three days later, defendant was arrested. He thinks in Spanish and is more
comfortable speaking in Spanish, so he claimed to understand only some of the questions
he was asked by detectives in English. He admitted to drinking the day of the interview.
He also admitted to lying during the interview: he told detectives he was no longer using
drugs, but he was. But, he testified, he did not lie about the victim’s death being an
accident; he did not “mean to kill [the victim].”
The trial court instructed the jury on the degrees of murder and involuntary
manslaughter. With regard to the firearm enhancement, the jury was instructed to
consider only whether the allegation was true under section 12022.53, subdivision (d).

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The jury acquitted defendant of first degree murder but found him guilty of second
degree murder. The jury also found true the allegation that “in the commission of the
offense . . . [defendant] used and intentionally and personally discharged a firearm, to
wit, a shotgun, thereby causing great bodily injury or death to [the victim] within the
meaning of . . . section 12022.53 [subdivision] (d) . . . .” (Italics added.)
At sentencing, defendant’s counsel asked the trial court to strike “either the
sentencing part of the [firearm enhancement] or the whole thing . . . .” The court denied
his request: “If the court had been given some choices, like 10-to-life or 15-to-life or 25-
to-life, I think the court would have thought seriously about imposing some lesser life
term for the firearms use, but the Legislature hasn’t done that, and so the question is[:]
does [defendant] fit as a person that should be exempted[?] . . . I don’t find that he was.”
The court sentenced defendant to serve an aggregate term of 40 years to life: 15 years to
life for murder and 25 years to life for the firearm enhancement.
DISCUSSION
I
Sufficiency of the Evidence
Defendant contends the evidence was insufficient to support his conviction for
second degree murder. In support of his contention, defendant argues the evidence was
insufficient to establish malice. We disagree.
When presented with a claim of insufficient evidence, we examine the entire
record to assess whether any rational trier of fact could have found defendant guilty
beyond a reasonable doubt. (People v. Zamudio (2008) 43 Cal.4th 327, 357.) Thus, “we
review the evidence in the light most favorable to the prosecution and presume in support
of the judgment the existence of every fact the jury could reasonably have deduced from
the evidence. ([People v.] Boyer [(2006)] 38 Cal.4th [412,] 480.) ‘Conflicts and even
testimony [that] is subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge or jury to determine the

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credibility of a witness and the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we
look for substantial evidence. [Citation.]’ ([People v.] Maury [(2003) 30 Cal.4th 342,]
403.) A reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support” ’ the jury’s
verdict. (People v. Bolin (1998) 18 Cal.4th 297, 331.)” (Ibid.)
“Murder is the unlawful killing of a human being . . . with malice aforethought.”
(§ 187, subd. (a).) Malice aforethought may be express or implied. (§ 188.) “ ‘Express
malice is an intent to kill. . . . Malice is implied when a person willfully does an act, the
natural and probable consequences of which are dangerous to human life, and the person
knowingly acts with conscious disregard for the danger to life that the act poses.’ ”
(People v. Beltran (2013) 56 Cal.4th 935, 941-942.)
Second degree murder requires an intent to kill but does not require the same
consideration and weighing that is required to convict a defendant of first degree murder.
It occurs when a person intends to kill as the “result of mere unconsidered or rash
impulse hastily executed.” (People v. Thomas (1945) 25 Cal.2d 880, 900-901.) In other
words, second degree murder occurs when the defendant intentionally kills, but his
judgment has been obscured by strong emotion due to provocation, even though a person
of ordinary disposition would not respond to the provocation with obscured judgment.
(See People v. Jones (2014) 223 Cal.App.4th 995, 1000.)
Defendant shot the victim in the abdomen at close range, then left him there to die.
Even knowing the victim’s girlfriend was nearby, defendant did not summon for help or
attempt to give aid to the victim. This is sufficient evidence from which the jury could
conclude defendant intended to kill the victim. (See People v. Koontz (2002) 27 Cal.4th
1041, 1082 [firing a shot at a vital area of the body and preventing aid to the victim is
evidence of intent to kill]; see also People v. Smith (2005) 37 Cal.4th 733, 741 [firing at
close range “ ‘in a manner that could have inflicted a mortal wound had the bullet been

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on target is sufficient to support an inference of intent to kill’ ”].) Just because the
circumstances may also reasonably support a different conclusion than the one drawn by
the trier of fact does not warrant reversing the judgment. (People v. Stanley (1995)
10 Cal.4th 764, 792-793.)
We conclude there was sufficient evidence to support defendant’s conviction for
second degree murder.
II
Prosecutorial Error
Defendant contends the prosecutor committed prejudicial error by misstating the
law of involuntary manslaughter, a lesser included offense, in closing argument. In doing
so, defendant argues the prosecutor “shifted and lowered” the People’s burden of proof as
to second degree murder. Recognizing defense counsel did not object to this argument,
he also argues counsel was ineffective. We conclude there was no error and reject
defendant’s claim for ineffective assistance of counsel.
A.
Standard of Review
“ ‘ “To preserve a claim of prosecutorial [error] for appeal, a defendant must make
a timely and specific objection and ask the trial court to admonish the jury to disregard
the improper argument.” ’ ” (People v. Charles (2015) 61 Cal.4th 308, 327, quoting
People v. Linton (2013) 56 Cal.4th 1146, 1205.) Defendant’s trial attorney failed to
preserve the issues of prosecutorial error by not objecting or requesting the jury be
admonished as to any claimed error.
Recognizing the forfeiture problem, defendant argues his counsel was ineffective
for failing to object. “ ‘A defendant whose counsel did not object at trial to alleged
prosecutorial [error] can argue on appeal that counsel’s inaction violated the defendant’s
constitutional right to the effective assistance of counsel.’ ” (People v. Centeno (2014)
60 Cal.4th 659, 674.) To establish ineffective assistance of counsel, defendant must

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show, by a preponderance of the evidence, that “ ‘(1) counsel’s representation fell below
an objective standard of reasonableness under prevailing professional norms, and (2)
counsel’s deficient performance was prejudicial, i.e., there is a reasonable probability
that, but for counsel’s failings, the result would have been more favorable to the
defendant.’ ” (People v. Johnson (2015) 60 Cal.4th 966, 980.)
In evaluating an ineffective assistance of counsel claim on appeal, we presume,
absent defendant’s contrary showing, 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.” ’ [Citations.] When the record on direct
appeal sheds no light on why counsel failed to act in the manner challenged, defendant
must show that there was ‘ “ ‘no conceivable tactical purpose’ ” for counsel’s act or
omission. [Citations.]’ ‘[T]he decision facing counsel in the midst of trial over whether
to object to comments made by the prosecutor in closing argument is a highly tactical
one’ . . . [citations], and ‘a mere failure to object to evidence or argument seldom
establishes counsel’s incompetence’ [citation].” (People v. Centeno, supra, 60 Cal.4th at
pp. 674-675.)
B.
Additional Background
During closing arguments, the prosecutor explained the elements of second degree
murder and involuntary manslaughter. In so doing, he asserted the evidence did not
support a finding of criminal negligence, an element of involuntary manslaughter. He
described criminal negligence as a lawful act, conducted in an unlawful manner and used
examples to illustrate what that meant. For example, it is lawful to shoot a gun, but to
shoot a gun in a crowd of people would be unlawful. He also gave the example that,
while it is lawful to drive a car, to drive a car recklessly is unlawful.
During closing argument, defense counsel argued the prosecutor failed to prove
defendant guilty of murder or any of the lesser included offenses, arguing instead that the

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shooting was an accident. When addressing the lesser included offense of involuntary
manslaughter, counsel said it was “a little harder to understand” than the first or second
degree murder. He agreed with the prosecutor that, on these facts, involuntary
manslaughter was not an option: “[The prosecutor] and I agree that it’s not quite an
involuntary because it was not done in an unlawful way, so I think we’re left with first or
second degree murder. [¶] . . . [¶] Involuntary manslaughter doesn’t fit because it wasn’t
done in an unlawful manner, and it’s more than ordinary careless inattention or mistake
in judgment. It has to be actually reckless. When you are high, what seems reckless to
you might not be reckless to someone else, but in any event, number one, the unlawful
knocks out the involuntary manslaughter.”
C.
Analysis
Defendant asserts the prosecutor committed error by arguing that “the failure of
proof of criminal negligence foreclosed an involuntary manslaughter conviction, and that
the default finding was second degree murder.” Defendant does not include any citation
to the record to support that assertion. When defendants do not provide adequate
citations to the record, the court is not obligated to search the record and thus can deem
challenges waived. (People v. Smith (2015) 61 Cal.4th 18, 48.)
Defendant nevertheless goes on to argue that the prosecutor’s argument was a
misstatement of the law because “a finding of criminal negligence was a necessary
element of implied malice.” Defendant does not support that assertion with any citation
to relevant legal authority. However, he argues this misstatement of the law resulted in
the prosecutor diminishing the People’s burden of proof and “implying” it was
defendant’s “burden to prove involuntary manslaughter.” We are not required to address
an issue raised without citation to relevant authority. (People v. Hardy (1992) 2 Cal.4th
86, 150.)

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Defendant also maintains that trial counsel rendered ineffective assistance in
“ratifying” the prosecutor’s erroneous argument regarding involuntary manslaughter. He
does not support that theory with any actual argument. We will not examine perfunctory
claims or make arguments for parties. (People v. Oates (2004) 32 Cal.4th 1048, 1068,
fn. 10.)
We conclude the prosecutor did not err in his description of involuntary
manslaughter during closing arguments. Trial counsel’s failure to object was, therefore,
appropriate and well-within the bounds of professional competence.
III
Firearm Enhancement
Defendant contends the trial court misunderstood the scope of its discretion and
requests that we remand for the trial court to consider whether to substitute a lesser
enhancement under section 12022.53, subdivisions (b) or (c) for the greater enhancement
under subdivision (d) of the statute, as explained in People v. Morrison (2019) 34
Cal.App.5th 217 (Morrison). The People assert Morrison was wrongly decided and
should not be followed by this court. We agree with the People.
“On October 11, 2017, Governor Brown signed Senate Bill No. 620 (2017-2018
Reg. Sess.), which amended sections 12022.5 and 12022.53 to provide trial courts with
the discretion to strike a firearm enhancement or finding. [Citation.] Senate Bill No. 620
added the following language to both statutes: ‘The court may, in the interest of justice
pursuant to Section 1385 and at the time of sentencing, strike or dismiss an enhancement
otherwise required to be imposed by this section. The authority provided by this
subdivision applies to any resentencing that may occur pursuant to any other law.’ ”
(Morrison, supra, 34 Cal.App.5th at pp. 221-222, italics added.) This was added to
section 12022.53 as subdivision (h).
“ ‘Section 12022.53 sets forth the following escalating additional and consecutive
penalties, beyond that imposed for the substantive crime, for use of a firearm in the

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commission of specified felonies, including . . . murder: a 10-year prison term for
personal use of a firearm, even if the weapon is not operable or loaded (id., subd. (b)); a
20-year term if the defendant “personally and intentionally discharges a firearm” (id.,
subd. (c)); and a 25-year-to-life term if the intentional discharge of the firearm causes
“great bodily injury” or “death, to any person other than an accomplice” (id., subd. (d)).
For these enhancements to apply, the requisite facts must be alleged in the information or
indictment, and the defendant must admit those facts or the trier of fact must find them to
be true.’ [Citation.] Section 12022.53, subdivision (f) provides, ‘Only one additional
term of imprisonment under this section shall be imposed per person for each crime. If
more than one enhancement per person is found true under this section, the court shall
impose upon that person the enhancement that provides the longest term of imprisonment
. . . .’ ” (Morrison, supra, 34 Cal.App.5th at p. 221.)
As in this case, in Morrison the jury found true only the enhancement allegation
under section 12022.53, subdivision (d). (Morrison, supra, 34 Cal.App.5th at p. 221.)
After the trial court recalled the sentence to exercise its discretion as provided in section
12022.53, subdivision (h), the court declined to strike the firearm enhancement.
(Morrison, at p. 220.) On appeal, the defendant argued the “case should be remanded for
resentencing because the court did not understand the scope of its discretion” given its
failure to consider whether to modify the enhancement to a “ ‘lesser included’
enhancement under section 12022.53, subdivision (b) or (c), which carry lesser terms of
10 years or 20 years, respectively.” (Id. at p. 221.)
The First District Court of Appeal agreed with the defendant, citing case law
providing “the court may impose a ‘lesser included’ enhancement that was not charged in
the information when a greater enhancement found true by the trier of fact is either

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legally inapplicable or unsupported by sufficient evidence.”2 (Morrison, supra, 34
Cal.App.5th at p. 222.) The court further relied on our Supreme Court’s analysis in
People v. Marsh (1984) 36 Cal.3d 134. (Morrison, at p. 223.) Like our colleagues in the
Fifth District Court of Appeal, we do not find this analysis persuasive. (People v. Tirado
(2019) 38 Cal.App.5th 637, 644, review granted Nov. 13, 2019, S257658 (Tirado).)
We agree with the statutory interpretation set forth in Tirado. (Tirado, supra, 38
Cal.App.5th at p. 643, rev. granted.) The plain language of sections 1385 and 12022.53,
subdivision (h) authorizes the trial court to either dismiss or strike an enhancement;
“[t]here is nothing in either statute that conveys the power to change, modify, or
substitute a charge or enhancement.” (Tirado, at p. 643.) The Tirado court’s comparison
of the language in section 1385 with language in other statutes permitting a court to
modify a charge or enhancement (e.g., §§ 1260 & 1181, case (6)) aptly demonstrates this
point. (Tirado, at p. 643.)
In the absence of an admission or true finding under section 12022.53,
subdivisions (b) and (c), if the trial court were to strike the enhancement found true under
subdivision (d), there would be no other section 12022.53 enhancement to impose and
execute or to strike. (See People v. Gonzalez (2008) 43 Cal.4th 1118 [enhancements
found true under § 12022.53 subds. (b) & (c) must be imposed and stayed, not stricken,
when the sentence under subd. (d) is imposed in accordance with subd. (f) (Gonzalez, at
pp. 1123, 1127) to “mak[e] the prohibited enhancements readily available should the
section 12022.53 enhancement with the longest term be found invalid on appeal”
(Gonzalez, at p. 1129); if the prohibited enhancements under § 12022.53, subds. (b) & (c)
were stricken, it would “mak[e] it more difficult, if not impossible, to impose and execute
2 Neither of those circumstances is present here. The section 12022.53, subdivision
(d), finding was supported by sufficient evidence and defendant does not contend
otherwise.

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the term of imprisonment for an initially prohibited firearm enhancement in the event the
section 12022.53 enhancement with the longest term of imprisonment is invalidated on
appeal” (Gonzalez, at p. 1128)].)
The case law upon which Morrison relied — i.e., that a “court may impose a
‘lesser included’ enhancement that was not charged in the information when a greater
enhancement found true by the trier of fact is either legally inapplicable or unsupported
by sufficient evidence” (Morrison, supra, 34 Cal.App.5th at p. 222) — did not arise in
the context of power statutorily conferred upon the court under section 1385. In other
words, the authority discussed in those cases is independent of section 1385’s authority
and not circumscribed by section 1385’s language.
We also do not see how Marsh supports the position espoused in Morrison. In
Marsh, our Supreme Court merely explained that the trial court has “a broad range of
sentencing options” in exercising its discretion to strike allegations under section 1385.
(People v. Marsh, supra, 36 Cal.3d at pp. 143-144.) We find nothing in the opinion
indicating that the trial court’s section 1385 powers include the imposition of an
allegation, action, or enhancement different from that presented to the jury.
For these reasons, we conclude the trial court properly understood the scope of its
discretion when it considered whether to strike defendant’s enhancement under section
12022.53, subdivision (d).

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DISPOSITION
The judgment is affirmed.
/s/
HOCH, J.
We concur:
/s/
HULL, Acting P. J.
/s/
BUTZ, J.*
* Retired Associate Justice of the Court of Appeal, Third Appellate District, assigned by
the Chief Justice pursuant to article VI, section 6 of the California Constitution.

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