Filed 7/24/13 P. v. Guzman CA2/6 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 SIX 

THE PEOPLE, 

 Plaintiff and Respondent, 

v. 

ALEXIS GUZMAN et al., 

 Defendants and Appellants. 

2d Crim. No. B232497 

(Super. Ct. No. 1312678) 

(Santa Barbara County) 

 Alexis Guzman (Alexis) and Dennis Garcia Guzman (Dennis)1 appeal 

their convictions for first-degree murder (Penal Code, §§ 189/187).2 They argue 

that the trial court committed several instructional errors, and Alexis contends that 

his trial counsel was constitutionally ineffective. We reject these challenges, and 

affirm the prison sentences of 50 years to life for each defendant. 

FACTS AND PROCEDURAL HISTORY 

I. The Crime

 Hector Perez (Perez) was fatally shot in an alleyway in Santa Maria, 

California. 

 1 For the sake of clarity, we use their first names. 

2

 All statutory references are to the Penal Code unless otherwise 

specified.
2 

 Minutes before the shooting, Alexis saw Perez in the alleyway. The 

two got into a verbal argument over the volume of Perez's car stereo. Alexis was a 

member of the West Park street gang, and the alley was claimed as West Park gang 

territory. 

 When the argument was not resolved to Alexis's satisfaction, he sent 

off a flurry of text messages. He told one gang member, Javier Mendez, to bring 

him a knife. When Mendez could not, Alexis sent him a message stating: "Come 

by fool we going to do something right now." At the same time, Alexis told 

Dennis—his brother and also a West Park gang member—that a member of a rival 

gang was in the alley, even though Perez was not a gang member. Alexis also 

informed his girlfriend that he was "about to beat some fool right now." Dennis did 

not rush to Alexis's aid; instead, he took the time to borrow a gun from another gang 

member before coming to the alley. Within minutes, the alley was full of West 

Park gang members and friends Perez had summoned. 

 A fist fight ensued. Eyewitness accounts of the fight differed, but a 

few facts were undisputed: Perez was unarmed. Perez did not throw the first 

punch. And the fight ended when Perez was shot twice at point black range. 

Eyewitness accounts of the shooter's identity also varied; the gunman was identified 

as Dennis, as Alexis, or as an unknown third person. However, Dennis had the gun 

immediately after the shooting, and bragged to others that he had shot Perez. 

II. Prosecution

 The People charged both Dennis and Alexis with first-degree murder 

(§§ 189/187). The People further alleged that the murder was "for the benefit of, at 

the direction of, or in association with [a] criminal street gang" (§ 186.22, subd. 

(b)), and that a principal "personally and intentionally discharge[ed] a firearm . . . 

proximately caus[ing] great bodily injury . . . or death" (§ 12022.53, subd. (d), 

(e)(1)). The People further alleged that Dennis personally used a firearm (§ 

12022.5, subd. (a)). 
3 

 The jury found both defendants guilty of first-degree murder, and 

found true the gang enhancement and the enhancement for a principal's discharge of 

a firearm causing great bodily injury. The jury did not reach a verdict regarding 

Dennis's personal use of a firearm. The court sentenced each defendant to 50 years 

to life in state prision—25 years to life on the murder charge, plus a consecutive 25 

year-to-life sentence on the discharged firearm enhancement. 

DISCUSSION 

I. Instructional Errors

 The court instructed the jury that Dennis or Alexis could be guilty 

of first-degree murder if either defendant (1) personally perpetrated the crime of 

first-degree murder; (2) aided and abetted the other in perpetrating first-degree 

murder; (3) aided and abetted the other in committing the predicate offenses of 

assault, battery, assault with force likely to cause great bodily injury, or assault with 

a deadly weapon if "murder" was a "natural and probable consequence" of one of 

those predicate offenses ("natural and probable consequences theory"); or 

(4) conspired with others to commit any of the four predicate offenses if murder 

furthered the conspiracy and was a natural and probable consequence of the 

conspiracy's common design ("conspiracy theory"). Dennis and Alexis argue that 

one or more of these theories is legally defective, and that this defect requires their 

murder convictions to be vacated. 

A. Defenses

 Dennis and Alexis first contend that the trial court erred (1) in 

denying Dennis's request to instruct the jury on the defenses of perfect and 

imperfect self-defense to the murder charge; and (2) in not instructing the jury sua 

sponte on the defenses of self-defense and defense of others as to the four predicate 

offenses underlying the natural and probable consequences and conspiracy theories. 

The trial court's duty to give these instructions turns on whether the evidence 

presented was "substantial enough to merit consideration by the jury . . . ." (People 
4 

v. Manriquez (2005) 37 Cal.4th 547, 581 (Manriquez).)3

 "Substantial evidence" 

means what it says; "'any evidence, no matter how weak,'" will not suffice. (People 

v. Whalen (2013) 56 Cal.4th 1, 68, quoting People v. DePriest (2007) 42 Cal.4th 1, 

50.) We independently review the trial court's evaluation of the evidence, and in so 

doing, may not evaluate the credibility of witnesses and must recognize that a single 

witness's testimony can constitute "substantial evidence." (Manriquez, supra, at p. 

581; People v. Breverman (1998) 19 Cal.4th 142, 162; People v. Wyatt (2012) 55 

Cal.4th 694, 698.) 

 1. Defenses to murder charge 

 There are two species of self-defense under California law—namely, 

"perfect" self-defense and "imperfect" self-defense. (People v. Randle (2005) 35 

Cal.4th 987, 994 (Randle), overruled on other grounds in People v. Chun (2009) 45 

Cal.4th 1172, 1198-1199).) Both defenses require that the defendant actually

believe that he or she was in "imminent danger of death or great bodily injury . . . ." 

(Randle, supra, at p. 994; In re Christian S. (1994) 7 Cal.4th 768, 783 (Christian S.) 

["Fear of future harm—no matter how great the fear and no matter how great the 

likelihood of the harm—will not suffice"].) If that belief is reasonable "'from the 

point of view of a reasonable person in the [defendant's] position,'" the defendant 

has acted in perfect self-defense and the homicide is justified and not a crime at all. 

(People v. Humphrey (1996) 13 Cal.4th 1073, 1083, quoting People v. McGee

(1947) 31 Cal.2d 229, 238; § 197, subd. (1); People v. Flannel (1979) 25 Cal.3d 

668, 674-675, superseded on other grounds by § 25, subd. (a); People v. Villanueva

(2008) 169 Cal.App.4th 41, 49-50.) If that belief is not objectively reasonable, it 

still negates the "malice" element of murder, and the defendant is accordingly guilty 

at most of the lesser-included offense of voluntary manslaughter. (Christian S., 

 3 For true defenses (such as a perfect self-defense and defense of 

others), the trial court's duty also turns on the extent to which the defense is 

consistent or inconsistent with the defendant's theory of the case. (People v. Booker

(2011) 51 Cal.4th 141, 179.)
5 

supra, at p. 773.) This "imperfect" self-defense is accordingly not a true defense, 

but rather an instruction on a lesser-included offense. (Manriquez, supra, 37 

Cal.4th at p. 581.) 

 However, a defendant may not assert either type of self-defense if he 

was wholly or partly responsible for creating the circumstances that precipitated his 

use of deadly force. Thus, a defendant who "'seeks or induces the quarrel which 

leads to the necessity for killing his adversary"' may not claim self-defense unless 

he "'honestly endeavor[s] to escape'" from the fight he started (People v. Hill (2005) 

131 Cal.App.4th 1089, 1102-1103 (Hill), overruled on other grounds in People v. 

French (2008) 43 Cal.4th 36, 48, fn. 5; People v. Holt (1944) 25 Cal.2d 59, 66 

(Holt); Christian S., supra, 7 Cal.4th at p. 773, fn. 1), or unless such escape is 

impossible because his adversary launches a "sudden and deadly counter assault." 

(People v. Sawyer (1967) 256 Cal.App.2d 66, 75; People v. Quach (2004) 116 

Cal.App.4th 294, 302; accord, Holt, supra, at p. 66 ["'A man has not . . . the right to 

provoke a quarrel and take advantage of it, then justify the homicide' . . ."].) A 

defendant is also precluded from asserting self-defense if he and the victim 

mutually agreed to engage in combat "before the claimed occasion for self-defense 

arose." (People v. Ross (2007) 155 Cal.App.4th 1033, 1047.) 

 The trial court did not err in declining to give either self-defense 

instruction to the murder charge for two reasons. First, the undisputed evidence 

foreclosed both types of self-defense as a matter of law. (E.g., People v. Watie

(2002) 100 Cal.App.4th 866, 877-879 [no instruction required if evidence precludes 

self-defense instruction as a matter of law].) The defendants each sought and 

induced the quarrel that led to Perez's shooting: Alexis told Dennis to come to the 

alley and "sweetened" the incentive by falsely reporting that a rival gang member 

was there, and Dennis borrowed a gun and went to the alley. Dennis, Alexis, or 

another gang member threw the first punch. Moreover, Dennis or Alexis never 

attempted to withdraw from the fight they prompted, and the unarmed Perez never 
6 

launched a "sudden and deadly counter assault." At a minimum, Dennis, Alexis and 

Perez agreed to engage in mutual combat because Perez and Alexis summoned 

back-up and Dennis showed up ready to fight. 

 Second, substantial evidence does not support a finding that either 

defendant actually feared imminent great bodily injury or death. Alexis did not 

walk away from his verbal quarrel with Perez; instead, he spent several minutes 

sending text messages in order to summon Mendez, Dennis and others; trying to 

acquire a knife; and bragging to his girlfriend that he was about to "beat some fool." 

This evidence precludes any argument that Alexis was actually in imminent fear. 

 The same can be said of Dennis. Upon learning that a rival gang 

member was in the alley, Dennis did not immediately come to his brother's aid; 

instead, he took the time to get a gun. This does not reflect imminent fear. Dennis 

contends that he borrowed the gun only for defensive use because gang members 

need to protect one another and because he might have heard that Perez had 

previously assaulted someone else with a knife. We are not persuaded. A similar 

argument was rejected in Hill, which affirmed the denial of a self-defense 

instruction when the defendant took the time to get a weapon before confronting the 

victim. (Hill, supra, 131 Cal.App.4th at pp. 1102-1103.) Moreover, if protecting 

one's fellow gang members was enough by itself to place a defendant in imminent 

fear, self-defense instructions would be categorically required in every gang 

violence case, but that is not the law. Dennis's further argument that he obtained a 

gun because of Perez's prior knife fight with someone else is also without merit: 

Dennis did not know Perez was in the alley until after he borrowed the gun, and 

Perez was weaponless when he and Dennis started their fist fight. Although Dennis 

was not required to testify to his own fear (People v. Viramontes (2001) 93 

Cal.App.4th 1256, 1262), "'there must be evidence from which a jury could find'" 

that he labored under an actual fear that deadly force was immediately necessary for 

protection (People v. Oropeza (2007) 151 Cal.App.4th 73, 82). Here there was 

none. 
7 

 2. Defenses to predicate offenses 

 Self-defense and defense of others can also be defenses to the crimes 

of assault (whether simple assault, assault with a deadly weapon, or assault with 

force likely to cause great bodily injury) and battery. (§§ 692, 694.) Alexis 

contends that the trial court erred in not instructing the jury sua sponte on these 

defenses as to the four uncharged predicate offenses underlying the natural and 

probable consequences and conspiracy theories. More specifically, Alexis argues 

that he jumped into the fight against Perez in defense of Dennis and that the absence 

of self-defense and defense-of-others instructions precluded the jury from finding 

him not liable under two of the four theories underlying the murder charge. 

 We need not decide whether substantial evidence supports the 

giving of these instructions because Alexis was not prejudiced by their absence. 

At trial, the prosecutor argued that Alexis was liable under the natural and probable 

consequences and conspiracy theories for sending text messages summoning 

other West Park gang members. Alexis's attorney argued that the text messages 

never mentioned a fight, and that once the fight broke out, Alexis was an innocent 

bystander who "simply stood there." No one argued that Alexis had jumped into 

the fight. (E.g., People v. Prettyman (1996) 14 Cal.4th 248, 273 [effect of 

instructional error gauged in part by reference to counsel's arguments].) On this 

record, self-defense and defense-of-others instructions are irrelevant because 

Alexis's liability for the murder under the natural and probable consequences and 

conspiracy theories for sending inflammatory text messages would have already 

attached by the time he jumped into the fight and consequently would not have been 

negated by instructions relevant solely to his involvement in the fight. 

B. Object of natural and probable consequences

 Dennis and Alexis also argue that the trial court erred when it 

instructed the jury that each could be liable for first-degree murder under the natural 

and probable consequences theory if, among other things, "the commission of 

murder was a natural probable consequence" of any of the four predicate offenses. 
8 

Relying on People v. Woods (1992) 8 Cal.App.4th 1570 (Woods), the defendants 

contend that the jury should have been required to find that the natural and probable 

consequence of the predicate offenses was first-degree murder rather than merely 

"murder." The People respond that Woods was wrongly decided. Woods's

continuing validity is currently before our Supreme Court. (See People v. Chiu, 

reviewed granted Aug. 2012, S202724, [C063913; nonpublished opinion; 

Sacramento County Superior Court; 03F08566].) However, we need not take up the 

issue of Woods's validity because the trial court committed no error even if Woods

remains good law. 

Woods held that a trial court erred when it informed the jury that a 

defendant who aids and abets a predicate offense for which murder is a foreseeable 

consequence must be liable for the same degree of murder as the perpetrator of the 

murder. (Woods, supra, 8 Cal.App.4th at pp. 1580-1592.) The Woods court 

reasoned that a jury must be instructed to find that a particular degree of murder 

was a natural and probable consequence of one or more predicate offenses "where 

the facts would support a determination that the greater crime [first-degree murder] 

was not a reasonably foreseeable consequence but the lesser offense [second-degree 

murder] was such a consequence." (Id. at p. 1588.) 

 However, the evidence in this case does not support a finding that 

first-degree murder was not a reasonably foreseeable consequence of the four 

predicate offenses, but that second-degree murder was such a consequence. The 

sole theory for first-degree murder in this case was that the shooter acted "willfully, 

deliberately, and with premeditation." Accordingly, the question presented is 

whether the evidence would support a finding that it was reasonably foreseeable 

from the gang-related assaults or battery against Perez that he would be 

intentionally shot, but not reasonably foreseeable that he would be shot willfully, 

deliberately and with premeditation. The answer is, "No." Alexis summoned 

fellow gang members, tried to obtain a weapon, and did so as part of his plan to 

"beat some fool." Dennis responded to Alexis's summons by obtaining a gun and 
9 

starting a fist fight with Perez. Dennis argues that the jury did not unanimously 

agree that he was the shooter and asserts that he acted in self-defense. Regardless 

whether Dennis, Alexis or another West Park member pulled the trigger, the 

evidence indicated that the shooter waited until the fist fight was well under way 

before firing the gun not once, but two or three times. No evidence suggested that 

the shooting was anything other than the anticipated culmination of the escalating 

confrontation engineered by West Park gang members, and hence willful, deliberate 

and premeditated. Further, self-defense was inapplicable for the reasons discussed 

above. There was no error under Woods.

C. Second-degree murder "cap" on natural and probable consequences liability

 Alexis argues that an aider and abettor can be liable, at most, for 

second-degree murder as the natural and probable consequence of any predicate 

offense. In particular, he contends that (1) section 189 enumerates the permissible 

types of first-degree murder and does not list murders that are the natural and 

probable consequence of other offenses a person aids and abets; and (2) it is unfair, 

as a policy matter, to hold a person who merely aided and abetted a predicate 

offense liable for a first-degree murder that he did not subjectively intend or 

contemplate. 

 We reject both arguments. Alexis's first argument confuses the types

of first-degree murder with the theory of liability by which they may be committed. 

Courts may not add to the statutorily enumerated list of conduct qualifying as firstdegree murder. (See Adoption of Kelsey S. (1992) 1 Cal.4th 815, 827 ["courts may 

not add provisions to a statute"].) But California law elsewhere provides that aiders 

and abettors are liable as principals (§ 31; see also § 971), and "stand[] on equal 

footing" with the perpetrators (People v. McPherson (2001) 86 Cal.App.4th 527, 

532). Thus, holding aiders and abettors liable for first-degree murder does not 

amend section 189. The propriety of this conclusion is confirmed by the plethora of 

decisions affirming first-degree murder convictions resting on a natural and 

probable consequences theory. (E.g., People v. Williams (1997) 16 Cal.4th 635, 
10 

676, fn. 14; People v. Sandoval (2007) 41 Cal.4th 825, 841; People v. Garcia

(2008) 168 Cal.App.4th 261, 272-274.) 

 Alexis's second argument fares no better. A person who aids and 

abets a predicate offense that foreseeably results in further crimes need not have 

intended to encourage or facilitate the particular crimes later committed by the 

perpetrator. (People v. Croy (1985) 41 Cal.3d 1, 12, fn. 5.) And this result is not an 

outlier. A co-participant in a joint criminal endeavor—whether he is coconspirator, 

an aider and abettor, or a joint felon—has long been held vicariously liable for his 

co-participants' foreseeable crimes even though he has a different (and ostensibly 

lesser) degree of moral culpability. (In re Hardy (2007) 41 Cal.4th 977, 1025-1026 

[coconspirator liability]; People v. Gonzales & Soliz (2011) 52 Cal.4th 254, 296 

[aider and abettor liability]; People v. Cavitt (2004) 33 Cal.4th 187, 196 [felony 

murder liability]; see generally People v. Luparello (1986) 187 Cal.App.3d 410, 

437 ["The law . . . implicitly recognizes the greater threat of criminal agency and 

explicitly seeks to deter criminal combination by recognizing the act of one as the 

act of all"].) The courts are, in any event, without authority to rewrite the law of 

homicide for policy reasons. 

II. Ineffective Assistance of Counsel

 Alexis argues that he is entitled to a new trial because his trial counsel 

was constitutionally ineffective. He contends that his counsel did not object to 

Dennis's attorney's questions on cross-examination that elicited (1) testimony from 

two different witnesses regarding a rumor that Alexis was the shooter; and 

(2) testimony from another witness who mentioned a newspaper article naming 

Alexis as the shooter. Alexis asserts that his counsel could have had no strategic 

reason not to object to this testimony on hearsay grounds, and that its admission 

prejudiced by him by allowing the jury to hear additional evidence that he was the 

shooter. 

 To prevail on his claims of ineffective assistance of counsel, Alexis 

must establish that (1) his counsel's performance was "deficient"; and (2) there is a 
11 

"reasonable probability" that, but for that deficient performance, "the result of the 

proceeding would have been different." (Strickland v. Washington (1984) 466 U.S. 

668, 687, 694 (Strickland).) Counsel is "strongly presumed to have rendered 

adequate assistance." (Id. at p. 690.) For these reasons, "[a] mere failure to object 

to evidence or argument seldom establishes counsel's incompetence. [Citations.]" 

(People v. Frierson (1991) 53 Cal.3d 736, 747.) 

 Counsel's decision not to object on hearsay grounds to the witness's 

reference to a newspaper article mentioning Alexis as the shooter did not constitute 

deficient performance because that evidence was not hearsay. (People v. Jones

(1998) 17 Cal.4th 279, 309 [failure to make meritless objection does not amount to 

ineffectiveness].) Out-of-court statements are hearsay only if "offered to prove the 

truth of the matter stated." (Evid. Code, § 1200, subd. (a).) The witness who 

mentioned the article testified that he came forward to identify Dennis as the 

shooter because the article's report to the contrary was incorrect. Because the article 

was mentioned for its falsity and not its truth, a hearsay objection would have been 

overruled. 

 We need not address whether the absence of any objection to the 

rumor that Alexis was the shooter constituted deficient performance because its 

admission did not create a "reasonable probability" that the jury would have 

reached a different result for two reasons. (Strickland, supra, 466 U.S. at p. 697 

[court may decide prejudice issue first].) First, the rumor was brought up during the 

cross-examination of the witness who affirmatively testified that he saw Alexis 

shoot Perez. The rumor was therefore cumulative of direct eyewitness testimony. 

The cumulative nature of this testimony distinguishes it from the cases Alexis cites. 

(See People v. Robertson (1982) 33 Cal.3d 21, 41-42 [no objection to inadmissible 

evidence that defendant committed other, uncharged murders; admission of 

evidence prejudicial]; People v. Guizar (1986) 180 Cal.App.3d 487, 491-492 

[same]; People v. Moreno (1987) 188 Cal.App.3d 1179, 1190-1191 [no objection to 

sole, inadmissible evidence of corpus delecti; admission of evidence prejudicial].) 
12 

 Second, this cumulative evidence did not likely affect the verdict 

because, as noted above, no one argued that Alexis should be found guilty for 

Perez's murder as the shooter. Instead, Alexis's liability to the murder was tethered 

exclusively to his role in summoning other gang members to the fight. 

DISPOSITION 

The judgments are affirmed.

 NOT TO BE PUBLISHED.

 HOFFSTADT, J.* 

We concur: 

 YEGAN, A. P. J. 

 PERREN, J. 

 

 * (Judge of the Superior Court of Los Angeles County, assigned by 

the Chief Justice pursuant to art. 6, § 6 of the Cal. Const.) 
Edward H. Bullard, Judge 

Superior Court County of Santa Barbara 

_____________________________ 

 Wayne C. Tobin, under appointment by the Court of Appeal, for 

Defendant and Appellant Alexis Guzman. 

 Leslie Conrad, under appointment by the Court of Appeal, for 

Defendant and Appellant Dennis Garcia Guzman. 

 Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Lance E. Winters, Senior Assistant Attorney General, James 

William Bilderback II, Linda C. Johnson, Supervising Deputy Attorneys General, J. 

Michael Lehmann, Deputy Attorney General, for Plaintiff and Respondent.