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Filed 7/27/22 P. v. Villalpando CA3

Opinion following transfer from Supreme Court

NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

MACARIO VILLALPANDO,

Defendant and Appellant.

C087324

(Super. Ct. No. 16FE002927)

OPINION ON TRANSFER

This case returns on transfer from the California Supreme Court.

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 
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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. 

Finally, defendant contends the trial court abused its discretion in refusing to reduce the 

sentence imposed on the firearm enhancement.

In an unpublished opinion, we affirmed the judgment. (People v. Villalpando

(July 14, 2020, C087324) [nonpub. opn.].) The Supreme Court granted review and 

transferred the matter back to us with directions to vacate our decision and reconsider the 

cause in light of People v. Tirado (2022) 12 Cal.5th 688 (Tirado). On transfer, defendant 

contends the matter must be remanded for resentencing because the trial court did not 

understand its discretion to impose a lesser enhancement. The People contend remand is 

not warranted because defendant forfeited that claim by failing to raise it at sentencing. 

Defendant has the better argument.

The parties do agree, if we remand the matter for resentencing, the trial court 

should consider the recent amendments to Penal Code section 1385,1 made by Senate Bill 

No. 81 (2021-2022 Reg. Sess.). We will remand the matter for resentencing.

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. 

1 Undesignated statutory references are to the Penal Code.
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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 

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 
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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 (§ 187) 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.

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 
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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).

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.
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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 

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.)
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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 

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, 
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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 

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 
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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 

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.”
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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.) 

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 defendant has forfeited these arguments. 

III

Firearm Enhancement

On transfer from the Supreme Court, defendant maintains the trial court did not 

believe it had the ability to reduce his firearm enhancement to an uncharged lesser 
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enhancement in lieu of striking it, and thus did not understand the scope of its sentencing 

discretion. 

Section 12022.53 provides for a 10-year enhancement for the personal use of a 

firearm under subdivision (b); a 20-year enhancement for the personal and intentional 

discharge of a firearm under subdivision (c); and a 25-year-to-life enhancement for the 

personal and intentional discharge of a firearm causing great bodily injury or death under 

subdivision (d).

Effective January 1, 2018, the Legislature enacted Senate Bill No. 620 (2017-2018 

Reg. Sess.), which amended section 12022.53, subdivision (h) to provide: “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.” A 

trial court’s refusal to dismiss a section 12022.53 enhancement is reviewed under the 

deferential abuse of discretion standard. (People v. Pearson (2019) 38 Cal.App.5th 112, 

116.) “When being sentenced, a defendant is entitled to decisions made by a court 

exercising informed discretion. [Citation.] A court acting while unaware of the scope of 

its discretion is understood to have abused it.” (Tirado, supra, 12 Cal.5th at p. 694.)

In Tirado, our Supreme Court recently held trial courts are not categorically 

prohibited from imposing a lesser enhancement, either charged or uncharged, if the 

prosecution has charged the greater enhancement and the facts supporting the lesser 

enhancement have been alleged and found true. (Tirado, supra, 12 Cal.5th at p. 697.) 

Thus, under the section 12022.53 statutory framework, it is now clear that trial courts are 

permitted to strike a subdivision (d) enhancement found true by the jury and to impose a 

lesser statutory enhancement instead. (Tirado, at p. 700.) 

The People now agree the trial court acted without knowing it had discretion to 

impose a lesser enhancement, but nevertheless contend defendant forfeited the issue by 

failing to raise it at sentencing. We disagree.
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Defendant was sentenced on June 8, 2018. At the time of his sentencing, Senate 

Bill No. 620 had been in effect for a few months, but the contours of a trial court’s 

authority under amended section 12022.53, subdivision (h) were unsettled. People v.

Morrison (2019) 34 Cal.App.5th 217, the first appellate case to address the possibility of 

imposing a lesser enhancement that was not separately found true, was decided in April 

2019, nearly a year after defendant was sentenced. And it is hardly obvious from 

subdivision (h)’s text that the authority to “strike or dismiss an enhancement otherwise 

required to be imposed” might include the ability to strike a greater enhancement and 

impose a lesser one that was not presented to the jury. Defendant could not have 

anticipated that change in the law. (See People v. Perez (2020) 9 Cal.5th 1, 8.) As a 

result, he could not have forfeited his claim.

DISPOSITION

Defendant’s sentence, imposed on June 18, 2018, is vacated and the matter is 

remanded for resentencing so the trial court may exercise its discretion to strike the 

section 12022.53, subdivision (d) enhancement and impose a lesser included 

enhancement. At resentencing, the trial court should also consider the impact of Senate 

Bill No. 81 on section 1385, and any other new sentencing laws that apply to defendant.

 /s/

HOCH, J.

We concur:

 /s/

HULL, Acting P. J.

 /s/

DUARTE, J.