Filed 11/20/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

GUSTAVO NUNEZ, JR., et al.,

 Defendants and Appellants.

 G061346

 (Super. Ct. No. 20CF0791)

 O P I N I O N

Appeal from judgments of the Superior Court of Orange County, Kimberly 

Menninger, Judge. Affirmed in part, reversed in part, and remanded.

Joanna Rehm, under appointment by the Court of Appeal, for Defendant 

and Appellant Gustavo Nunez, Jr.

Mark D. Johnson, under appointment by the Court of Appeal, for 

Defendant and Appellant Daniel Gallegos.
2

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal and Andrew 

Mestman, Deputy Attorneys General, for Plaintiff and Respondent.

* * *

After hearing a rumor that Cesar Gonzalez had raped a child, and after 

being encouraged by a close friend to exact revenge, appellants Daniel Gallegos and 

Gustavo Nunez, Jr., chased Gonzalez and beat him with metal pipes as he lay on the 

ground. Gallegos then stabbed Gonzalez six times in the back, killing him. A jury 

convicted Gallegos of first degree murder, and Nunez of assault with a deadly weapon.

Gallegos argues the trial court erred when, in response to a jury question 

during deliberations, it instructed the jury that in order for provocation to reduce first 

degree murder to second degree murder, the provocation must come from the victim, not 

a third party. We find no reversible error. As a matter of first impression, we conclude 

the court’s instruction was correct. In any event, any potential error was harmless in light 

of the overwhelming evidence that the murder was premeditated, deliberate, and willful. 

Gallegos and Nunez also both contend the trial court erred when it declined

to dismiss their prior strike convictions under People v. Superior Court (Romero) (1996) 

13 Cal.4th 497 (Romero), and then sentenced them under the Three Strikes law. We find

no abuse of discretion in the court’s ruling on Gallegos’s motion and therefore affirm the 

judgment as to him. As for Nunez, however, the record indicates the court was unaware 

of the scope of its sentencing discretion; we therefore remand the matter so the court may 

exercise its informed discretion as to whether to dismiss Nunez’s prior strikes. The 

judgment is otherwise affirmed.

FACTS

In March 2020, Gallegos and Nunez were living in a vacant office building 

in Santa Ana with several other homeless people, including Lisa Herrera (known as 
3

Pebbles) and Jose Loera. Gallegos and Pebbles were friends, and Nunez considered

Pebbles to be his “street mom.” 

A rumor began circulating among the people who lived in the office

building that another homeless individual, Cesar Gonzalez, had raped a child. For 

months, Pebbles told Gallegos that something had to be done about Gonzalez. 

Loera warned Gonzalez about the rumor. Loera also told Gallegos the 

rumor was untrue. Gallegos replied he did not believe the rumor, but still felt pressure 

from others to harm Gonzalez.

On March 21, 2020, Pebbles told Gallegos that Gonzalez had raped a girl

and that Gallegos should “beat his ass” and “fuck him up.” Loera pulled Gallegos aside, 

repeated his belief that the rumor was false, and urged Gallegos not to do anything 

foolish because he would lose his freedom. According to Loera, Gallegos appeared “sad” 

and replied that he didn’t have any other option.

About four hours later, after dark, Gallegos received a phone call and told 

the caller ‘“I’m on my way”’; Gallegos then left the office building with Nunez. Both 

men were carrying metal pipes. Loera ran after them. As Gallegos and Nunez searched 

the area for Gonzalez, Gallegos spoke on his cell phone with Pebbles, who told him to 

‘“go fuck him up.”’

When Gallegos and Nunez eventually found Gonzalez, they attacked him. 

After trying unsuccessfully to run away, Gonzalez curled up on the ground; Gallegos, 

Nunez, and several others beat and punched him repeatedly while Loera watched.

Pebbles was nearby, yelling things like, ‘“Fuck him up,”’ and ‘“Beat the crap out of 

him.”’

Gallegos left for a moment; he then returned with a large knife that he 

regularly carried and asked Loera for ‘“a sharper knife so I can finish the fucker.”’ Loera 

later saw Gallegos pass the knife to Pebbles. 
4

Police officers arrived at the scene, and Gonzalez was transported to a 

hospital where he died. He had suffered six stab wounds to his back, fractured ribs, a 

collapsed lung, a fracture to his left eye orbital, and incised wounds to his head, face, and 

hands. 

A jury found Gallegos guilty of the first degree murder (Pen. Code,1 § 187, 

subd. (a)), and Nunez guilty of assault with a deadly weapon (§ 245, subd. (a)(1)). The 

jury also found Gallegos had personally used a knife in the commission of the murder 

(§ 12022, subd. (b)(1)). 

In a bifurcated proceeding, the trial court found Gallegos and Nunez had 

suffered prior “strike” convictions under the Three Strikes law, and it denied their 

Romero motions to dismiss the prior strikes. The court then sentenced Gallegos to 

50 years to life and Nunez to 25 years to life. Both men filed notices of appeal.

DISCUSSION

1. The Jury Question on Provocation

Gallegos’s first argument concerns the trial court’s response to a jury 

question regarding the concept of provocation. Before addressing Gallegos’s arguments, 

we provide a bit of background on the legal concept of provocation.

“First degree murder is an unlawful killing with malice aforethought, 

premeditation, and deliberation”; “[s]econd degree murder is an unlawful killing with 

malice, but without . . . premeditation or deliberation”; and voluntary manslaughter is an 

unlawful intentional killing without malice, premeditation, or deliberation. (People v. 

Hernandez (2010) 183 Cal.App.4th 1327, 1332 (Hernandez).)

Provocation may preclude a defendant from subjectively premeditating and 

deliberating and, as a result, may reduce a murder from first degree to second degree. 

1 All further statutory references are to this code.
5

(Hernandez, supra, 183 Cal.App.4th at p. 1332.) Likewise, if provocation would cause a 

reasonable person to react with deadly passion so as to negate the existence of malice, the 

crime may be reduced from murder to voluntary manslaughter. (Ibid.) It is well settled 

in the latter instance that the provocation must come from the victim, not a third party, 

but no court has determined whether the same is true in the former instance.

In this case, Gallegos was charged with first degree murder, and the trial 

court instructed the jury that the People must prove he acted willfully, deliberately, and 

with premeditation for him to be guilty of first degree murder (CALCRIM No. 521). The 

jury was also given CALCRIM No. 522 regarding provocation: “Provocation may 

reduce a murder from first degree to second degree. The weight and significance of the 

provocation, if any, are for you to decide. [¶] If you conclude that the defendant 

committed murder but was provoked, consider the provocation in deciding whether the 

crime was first or second degree murder.” This instruction does not indicate who must do 

the provoking.

During deliberations, the jury submitted a question regarding CALCRIM 

No. 522: “Does the provocation need to come from [the] victim or can a third party 

provoke this crime?” After researching the issue, the trial court instructed the jury that 

provocation “cannot be from a third party. It must be from the victim.” The jury 

thereafter convicted Gallegos of first degree murder. 

Gallegos argues the trial court’s response to the jury question was 

erroneous. According to Gallegos, unlike objective provocation by a victim, which 

negates malice, subjective provocation that negates premeditation and deliberation can 

originate from anywhere or anyone, not just from the victim. Gallegos argues the 

incorrect instruction was prejudicial because, if the jury had been properly instructed, 

Pebbles’s provocation could have reduced his crime from first degree murder to second 

degree murder. 
6

The trial court has a duty to provide the jury with accurate information in 

response to a jury request on a question of law. (People v. Smithey (1999) 20 Cal.4th 

936, 985; § 1138.) If the court gives a supplemental instruction, we review the 

instruction’s legal accuracy de novo. (People v. Franklin (2018) 21 Cal.App.5th 881, 

887 & fn. 4.) An incorrect supplemental instruction does not warrant reversal unless 

prejudice is shown. (See id. at pp. 890-891 [noting conflict among courts about what 

standard of prejudice applies].)

After considering the issue de novo, we find no error in the trial court’s 

response to the jury question. It is well settled (and Gallegos rightly concedes) that to 

reduce second degree murder to manslaughter, provocation must be caused by the victim, 

not a third party. (People v. Moye (2009) 47 Cal.4th 537, 549-550 [“The provocation 

which incites the defendant to homicidal conduct in the heat of passion must be caused 

by the victim [citation], or be conduct reasonably believed by the defendant to have been 

engaged in by the victim”]; People v. Avila (2009) 46 Cal.4th 680, 705 [to reduce murder 

to manslaughter, the victim must taunt the defendant or otherwise initiate the 

provocation]; see People v. Verdugo (2010) 50 Cal.4th 263, 294 [refusing to revisit the

“settled principle” that provocation must be caused by the victim].)

These cases and their progeny deal with negating the element of malice so 

as to reduce murder to manslaughter. As best we can tell, no published opinion has 

resolved whether the rule is the same—i.e., whether the provocation must be caused by 

the victim—to negate the elements of deliberation and premeditation so as to reduce first 

degree murder to second degree murder.2

 

2 Gallegos asserts the issue was addressed in People v. Steele (2002) 

27 Cal.4th 1230, 1253, where the Supreme Court found that “Defendant’s evidence that 

he was intoxicated, that he suffered various mental deficiencies, that he had a 

psychological dysfunction due to traumatic experiences in the Vietnam War, and that he 

just ‘snapped’ when he heard the helicopter, may have satisfied the subjective element of 

heat of passion.” Gallegos extrapolates the issue before us: that subjective provocation 
7

We see no reason a different rule should apply in this situation. The 

concepts of deliberation and premeditation focus on the victim. The perpetrator must

premeditate the killing of a particular victim in a deliberate manner, as established 

through evidence of planning, motive, or the manner of killing. (See People v. Anderson

(1968) 70 Cal.2d 15, 26-27.) To mitigate those elements, it must be the victim, not a third 

party, who instigates the provocation. Accordingly, the trial court correctly instructed the 

jury on this issue. 

In any event, even if the instruction was erroneous, it was harmless here in 

light of the overwhelming evidence presented at trial that the murder was willful,

premeditated, and deliberate. Gallegos expressed an intent to harm Gonzalez four hours 

before the killing. Several hours later, after receiving a phone call, he said ‘“I’m on my 

way.”’ He then armed himself, actively searched for the victim while armed with a metal 

pipe, chased him down, and brutally attacked him as he lay in a fetal position. On this 

record, the conclusion is inescapable that Gallegos acted with premeditation and 

deliberation. 

2. The Romero Motions

Gallegos and Nunez next contend the trial court abused its discretion in 

denying their Romero motions to dismiss the prior strike allegations and in sentencing 

them both under the Three Strikes law. We agree as to Nunez; as to Gallegos, we are not 

persuaded.

The Three Strikes law is designed to increase the prison terms for repeat 

felons. (See §§ 667, subds. (b)-(i), 1170.12.) When a defendant is convicted of a felony, 

and it is pleaded and proved he had committed prior “violent” or “serious” felonies, the 

may be caused by people or events other than the victim. We disagree because the court

in Steele was discussing instructions on the heat of passion requirement for manslaughter. 

(Id. at p. 1252.) It did not address whether provocation to reduce first degree murder to 

second degree murder must come from the victim. 
8

Three Strikes law provides for the imposition of increased sentences. (See § 667, 

subd. (e); § 1170.12.) A trial court is presumed to have acted properly whenever it 

sentences a defendant in accordance with the Three Strikes law. (People v. Carmony

(2004) 33 Cal.4th 367, 376 (Carmony).) A sentencing court nonetheless has the power to 

dismiss one or more prior strike convictions in the interests of justice. (Romero, supra, 

13 Cal.4th at pp. 529–532.) 

In deciding whether to exercise its discretion to dismiss a prior strike 

conviction in the interests of justice, a trial court “must consider whether, in light of the 

nature and circumstances of his present felonies and prior serious and/or violent felony 

convictions, and the particulars of his background, character, and prospects, the 

defendant may be deemed outside the [sentencing] scheme’s spirit, in whole or in part, 

and hence should be treated as though he had not previously been convicted of one or 

more serious and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161 

(Williams).) The court may not consider factors extrinsic to the sentencing scheme, such 

as “the mere desire to ease court congestion or . . . bare antipathy to the consequences for 

any given defendant.” (Ibid.) 

We review a trial court’s decision whether to strike a prior felony 

conviction for abuse of discretion. (Romero, supra, 13 Cal.4th at p. 532.) ‘““[T]he 

burden is on the party attacking the sentence to clearly show that the sentencing decision 

was irrational or arbitrary.”’” (Carmony, supra, 33 Cal.4th at p. 376.) There is a 

presumption that any sentence conforming to the Three Strike law’s sentencing norm is 

both rational and proper. (Id. at p. 378.) “In light of this presumption, a trial court will 

only abuse its discretion in failing to strike a prior felony conviction allegation in limited 

circumstances,” such as “where the trial court was not ‘aware of its discretion’ to dismiss 

[a prior strike] (citation), or where the court considered impermissible factors in declining 

to dismiss [a prior strike],” or “where no reasonable [person] could disagree [the 

defendant] falls outside the spirit of the three strikes [law] scheme . . . .” (Ibid.)
9

a. Gallegos

Gallegos contends the trial court abused its discretion in failing to strike his 

prior strike conviction pursuant to Romero. Gallegos’s criminal history began in 1990 

when he was 18 years old and included a 1991 conviction for robbery, 2008 and 2015 

convictions for burglary, a 2012 conviction for resisting arrest, and numerous drug 

related offenses. He has been under community supervision and served five prior prison 

terms. 

The jury in this case found Gallegos guilty of first degree murder and also 

found true the allegation that he personally used a knife in the commission of the murder. 

Additionally, the trial court found Gallegos had a prior strike—the 1991 robbery 

conviction. 

Gallegos moved to dismiss the prior strike, noting it occurred 31 years 

earlier on his 18th birthday, and asserting that sentencing him under the Three Strikes law 

would be the functional equivalent of a “death in prison” sentence given his age (49). In 

opposition, the People argued that although the strike conviction was remote in time, 

Gallegos’s conduct in the instant matter demonstrated he was violent and dangerous and 

a poor candidate for release back into society. 

At the sentencing hearing, the trial court recognized Gallegos’s strike 

conviction was “old,” but reasoned that “even a 1991 strike is relevant when it comes to 

someone who has committed murder.” The court also emphasized Gallegos did not 

“own” his behavior or demonstrate any remorse for his crimes. Gallegos asked the court 

how he could have remorse for something he did not do, to which the court responded 

that the jury had concluded otherwise, and the court had considered the evidence in 

support of that verdict. The court then denied Gallegos’s Romero motion and sentenced 

him to a Three Strike term of 50 years to life. 

We discern no abuse of discretion in the trial court’s decision. Gallegos 

targeted, searched for, beat, and stabbed his victim to death, all based on a rumor. The 
10

fact that Gallegos’s strike conviction occurred in 1990 when he was only 18 years old 

does not compel a different result. In determining whether a prior conviction is remote, 

the trial court must evaluate whether the defendant has had a “crime-free cleansing period 

of rehabilitation after a defendant has had the opportunity to reflect upon the error of his 

or her ways.” (People v. Humphrey (1997) 58 Cal.App.4th 809, 813.) If the “defendant 

has led a continuous life of crime after the prior, there has been no ‘washing out’ and 

there is simply nothing mitigating about a [decades]-old prior.” (Ibid.) 

Such was the case with Gallegos. He suffered 30 convictions since the 

1990 strike.3

 While most of these convictions were for drug related crimes, “Williams

and its progeny do not hold that a defendant’s criminal career must consist entirely or 

principally of violent or serious felonies to bring a defendant within the spirit of the 

Three Strikes law.” (People v. Strong (2001) 87 Cal.App.4th 328, 340.) In this case, 

though not necessarily increasing in severity, the convictions were certainly numerous. 

(See Cal. Rules of Court, rule 4.421(b)(2) [circumstances in aggravation include that “the 

defendant’s prior convictions . . . are numerous or of increasing seriousness”].) The 

record reflects Gallegos has been committing crimes for over three decades, and his 

criminality has not been deterred by prior periods of incarceration or release on 

community supervision. 

Gallegos alternatively contends the trial court abused its discretion by 

erroneously considering his lack of remorse as dispositive to its ruling. We disagree. In 

deciding whether to strike a prior felony conviction, a court must consider factors that are 

intrinsic to the Three Strikes law’s sentencing scheme, including the defendant’s 

“background, character, and prospects,” but it may not consider factors extrinsic to the 

3 Gallegos suggests the trial court did not consider his criminal history 

because it did not discuss it at the hearing. But the court indicated it had reviewed the 

parties’ briefing, the probation report, and the sentencing report, which detailed his 

criminal history. 
11

scheme, like “the mere desire to ease court congestion or . . . bare antipathy to the 

consequences for any given defendant.” (Williams, supra, 17 Cal.4th at p. 161.) In this 

case, it appears the court considered Gallegos’s lack of remorse as relevant to his 

character, future prospects, and improbability of rehabilitation, not as a result of any sort 

of antipathy toward Gallegos. The court also considered the severity of the crime (“yes 

[the strike] is old[,] . . . [b]ut the problem is this is murder”) and Gallegos’s criminal 

history (as confirmed by the court’s comments that it read the parties’ briefing, probation 

report, and sentencing report). Accordingly, we cannot say the court’s decision was 

based on any impermissible factor.

Finally, Gallegos contends the trial court’s ruling violated his federal and 

state rights to due process. That contention also fails, as he has not shown the court 

violated state law in denying his Romero motion. (See People v. Prince (2007) 

40 Cal.4th 1179, 1272, fn. 20.)

b. Nunez

We next consider the denial of Nunez’s Romero motion. Nunez’s criminal 

history began in 2007 when he was 19 years old and included a 2010 robbery, a 2015 

robbery and assault, numerous drug related offenses, and a 2018 assault with a deadly 

weapon, during which he resisted officers and fractured one of their hands. Nunez had 

served four prior prison terms and was on parole at the time of Gonzalez’s murder. 

The trial court found Nunez had suffered two prior strikes: the 2010 

conviction for robbery, and the 2019 conviction for assault with a deadly weapon. Nunez 

moved to strike “at least one” of those prior convictions under Romero, asserting most of 

his arrests were due to drug addiction and homelessness, and at least one of the strike 

priors was over 10 years old. The People opposed his motion, arguing Nunez’s criminal 

history demonstrated a “pattern of criminal behavior and a continued escalation in 

violence.”
12

In considering Nunez’s Romero motion, the trial court commented that a 

sentence “close to 20 [years] would have been perfect.” The court lamented, however,

that it could not “get there anymore because of the new sentencing laws,” and noted it 

could either sentence Nunez to 25 years to life under the Three Strikes law, or a 

maximum determinate term of 14 years if a strike were stricken. Finding that 14 years 

was “not appropriate” given the severity of what occurred, the court decided to sentence 

Nunez to a Three Strikes term of 25 years to life. It also reasoned that Nunez’s crimes 

“have been ratcheting up in severity from the time he was young until now,” he was on 

parole at the time of the instant crime, and although Nunez was not the murderer, “the 

murder was facilitated through his activity” because Nunez incapacitated the victim.4

Nunez contends the trial court misunderstood the scope of its discretion at 

sentencing, as reflected by the court’s comments that it could sentence Nunez to at most

14 years (i.e., the low term of two years doubled, plus 10 years for two prior serious 

felony enhancements) if it did not impose the strikes. We agree. 

As the People concede, the trial court was incorrect when it stated it was 

required to impose the low term if Nunez was given a determinate term. Effective

January 2022, former section 1170, subdivision (b), was amended to establish a 

presumption that, absent certain circumstances, the middle term is appropriate. Thus, the 

court was not required to impose a low term if Nunez was given a determinate term; it 

could have instead imposed either a middle or upper term determinate sentence for a term 

of either 16 or 18 years. It is not clear how the court would have ruled on Nunez’s 

4 Nunez contends substantial evidence does not support the trial court’s 

finding that he “incapacitat[ed]” the victim. We disagree. Loera testified that Nunez and 

Gallegos both repeatedly beat Gonzalez with metal pipes as he tried to run away, and 

they continued to hit him as he lay on the ground. This supports the court’s finding that 

Nunez’s actions incapacitated Gonzalez and enabled Gallegos to stab him.
13

Romero motion had it been aware of the scope of its discretion. This is particularly true 

given its comments that a sentence of “close to 20 [years] would have been perfect.”

“‘Defendants are entitled to sentencing decisions made in the exercise of 

the “informed discretion” of the sentencing court. [Citations.] A court which is unaware 

of the scope of its discretionary powers can no more exercise that “informed discretion”

than one whose sentence is or may have been based on misinformation regarding a 

material aspect of a defendant's record.’” (People v. Gutierrez (2014) 58 Cal.4th 1354, 

1391 [remand appropriate because the record did not clearly indicate the court would 

have imposed the same sentence had it been aware of the full scope of its discretion after 

a change in the law].) 

Because the trial court might have granted Nunez’s Romero motion had it 

been aware of the actual scope of its discretion, we must vacate Nunez’s sentence and 

remand this matter so the court may conduct a new Romero hearing. We express no view 

on how the court should exercise its discretion on remand.

DISPOSITION

The convictions are affirmed. The matter is remanded to the trial court for 

a new Romero hearing as to Nunez so that the court may exercise its informed discretion 

as to whether to dismiss one or both of Nunez’s prior strikes. On remand, the court may

also, in its sound discretion, modify any aspect of Nunez’s sentence in order to achieve 

its sentencing objectives. The judgment as to Nunez is otherwise affirmed. After

Nunez’s resentencing, the court shall prepare an amended abstract of judgment and 

forward a certified copy to the Department of Corrections and Rehabilitation.

The judgment as to Gallegos is affirmed.
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GOETHALS, ACTING P. J.

WE CONCUR:

MOTOIKE, J.

DELANEY, J.