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Filed 1/22/15 P. v. Basquez 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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. 

IRVIN ALLAN BASQUEZ, 

 Defendant and Appellant. 

2d Crim. No. B254537 

(Super. Ct. No. 1432885) 

(Santa Barbara County) 

 Irvin Allan Basquez appeals from the judgment entered after a jury convicted 

him of willful, deliberate, and premeditated attempted murder (Pen. Code, §§ 664, 187, 

subd. (a))1

 and burglary of the first degree. (§§ 459, 460.) The jury found true 

allegations that appellant had personally inflicted great bodily injury (§ 12022.7, subd. 

(a)) and had personally used a deadly weapon (a knife). (§ 12022, subd. (b)(1).) The 

jury also found true one prior conviction of a serious or violent felony within the 

meaning of California's "Three Strikes" law (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-

(d)); one prior prison term (§ 667.5, subd. (b)); and one prior conviction of a serious 

felony within the meaning of section 667, subdivision (a)(1). Appellant was sentenced 

 

1 All statutory references are to the Penal Code unless otherwise stated.
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to prison for a determinate term of 10 years followed by an indeterminate term of 14 

years to life. 

 In his opening brief appellant states: "[I]t was undisputed that someone stabbed 

the victim [Dustin Randolph] . . . . The issue at trial was whether appellant [or another 

unidentified person] committed this offense." Appellant contends that the trial court 

erroneously failed to sua sponte instruct the jury that the testimony of an accomplice 

must be viewed with caution and corroborated by other evidence. In addition, appellant 

contends that the court erroneously admitted evidence of a BB gun that was found in his 

possession two days after the stabbing. We affirm. 

Facts 

 In January 2013 Christopher Thomas, Jarred Syslo, and Steven Sorheim were 

passengers in a Ford Escort that was being driven by Cameron Taylor. Taylor picked 

up appellant, who said that he wanted to go to Dustin Randolph's house. At trial 

Thomas testified that, on the way there, appellant "seemed really disturbed, like 

something was wrong." Thomas and Sorheim "kept saying what's going on dude, 

what's going on?" Appellant replied, " '[J]ust take me over there, just take me over 

there.' " Taylor did so and parked the Escort at the entrance to a cul-de-sac. It was 

about 7:00 p.m. Appellant got out of the vehicle and walked alone to Randolph's house, 

which was at the end of the cul-de-sac. Appellant was greeted by Randolph and then 

stabbed Randolph 9 times. 

Two days after the stabbing, Thomas told Detective Matt Fenske a different 

version of what had happened inside the Escort. Thomas said that, when appellant 

entered the car, he was " 'fucking livid.' " Appellant "was telling everyone in the car 

that he was going to take out everyone at [Randolph's] house." Appellant said, " 'I don't 

give a fuck. I'm going to hurt some motherfuckers over here. That's it.' " Appellant 

"had a semi-automatic weapon between his legs" and was "racking" the slide of the 

firearm back and forth. Appellant said that "he was going to shoot them up." Thomas 

"was trying to talk sense into [appellant] during this whole time." Upon arriving at the 
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cul-de-sac where Randolph lived, appellant said: " 'I don't give a fuck. I'm going to hurt 

everybody in this fucking house.' " Appellant then "pulled out a semi-automatic 

handgun, racked it and stated, . . . 'I'm going to hurt all you motherfuckers.' " Thomas 

"wanted to leave," but an "occupant of the car that [Thomas] could not name got out of 

the car and stood in the middle of the street and said nobody was going to go 

anywhere." After appellant walked to Randolph's house, Thomas heard appellant yell, " 

'[W]here is my gun?' " A voice replied, " 'Barbara has it, bitch.' "2

 

Steve Sorheim, one of the passengers in the Escort, told a deputy sheriff that he 

knew Randolph was a heroin dealer. "When he heard that they were going to 

[Randolph's] house, he thought it was for the purpose of buying narcotics." 

 Bobby Dean Loftin and Shawna Bagnall were living with Randolph at the house. 

Randolph was Bagnall's boyfriend, and Loftin was the owner of the house. Loftin 

testified that he was asleep when he heard a male voice outside call, " '[H]ey, Dustin,' " 

Randolph's first name. Loftin yelled to let Randolph know that someone at the front 

door wanted to see him. 

Randolph went to the front door and started to open it. "Somebody pushed the 

door open and it hit" Randolph, knocking him to the ground. The intruder stabbed 

Randolph nine times. 

Bagnall testified: She heard a scuffle and saw "a figure hanging over" Randolph. 

The figure was "dark," and she did not see his face. Bagnall ran to the kitchen to grab 

the kitchen knives. When she returned to the front door, the intruder was gone. 

Randolph said appellant's name, but "he was asking [Bagnall] to call for [appellant]." 

Contrary to her trial testimony, on the night of the stabbing Bagnall told sheriff's 

deputies that appellant had stabbed Randolph. Bagnall testified that she had identified 

appellant as the stabber because "I thought that's what Dustin had said and I was 

wrong." Bagnall knew appellant and had met him several times. When the police asked 

 

2 The question regarding the gun may have been the motivating factor for the attack. (See, 

infra, p. 7.) 
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Bagnall if she would be willing to testify at trial, "she indicated she had to check with 

Dustin." 

Randolph testified: He has known appellant all of his life. Appellant is like a 

father to him. Prior to the stabbing, he had no problems with appellant. Randolph does 

not know the identity of the person who stabbed him, but he is "[a]bsolutely" certain 

that appellant was not the stabber. 

 Approximately two months after the stabbing, Randolph told Deputy Sheriff 

Jeffrey McDonald, " 'I'm going to put him [appellant] away for the rest of his life.' " 

Randolph referred to appellant by his first name, "Irv." Randolph "volunteered that 

everyone was telling him it was over drugs but it was just some mistake in Irv's head." 

Randolph "complained to [McDonald] that he didn't want [appellant] over at his house 

around the time of the stabbing because he had just gotten out of prison and was staying 

clean . . . ." Randolph described how the stabbing had occurred: " 'Irv tried to get me in 

the neck and femoral.' " Randolph also said that that "Irv tried to stab Shawna 

[Bagnall]." Randolph "then said . . . he thought Irv was going to kill him and he was 

only able to stop the attack when he . . . 'smashed him in the nose and blood started 

pouring out.' " Deputy McDonald wrote in his report: " 'Randolph believed that 

[appellant] fled his residence because of the DNA that would be left behind from his 

bloody nose.' " 

Toward the end of the interview with McDonald, Randolph "start[ed] backing 

away" from his previous statements. "[H]e made a statement that he couldn't confirm it 

was [appellant], that that's just what he was told." Randolph said, " 'I was in a blackout 

at the time the stabbing occurred.' " Randolph also said that, "when they arrested 

[appellant], he assumed it must have been him because they must have found his DNA 

all over the house." 

After the stabbing, appellant ran to the Escort that was parked at the entrance to 

the cul-de-sac. Thomas, who was inside the car, told Detective Fenske that he had seen 

appellant wipe a knife on his leg. The knife was bloody. Appellant entered the car and 
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said that he had " 'booked Dustin six or seven times.' " Thomas explained that "booked" 

was slang for "stabbed." 

Syslo told a deputy sheriff that, "[w]hen [appellant] got in the car, he said, 'go, 

go, go." They all drove to Nick Myer's house. Sorheim told Detective Morris that 

Thomas said he had "washed blood off a knife" and that "he was going to help get rid of 

a knife." 

Instruction on Accomplice Testimony 

 Appellant asserts, "The critical factual question in this case was whether it was 

appellant who stabbed Randolph . . . ." Appellant notes that, although the four 

witnesses in the Escort did not see the stabbing, "they all [testified and] placed appellant 

at or near Randolph's house that night." Appellant argues that there is substantial 

evidence that the four witnesses - Thomas, Sorheim, Syslo, and Taylor - were 

accomplices. Therefore, "the trial court had a sua sponte duty to instruct the jury 

regarding accomplice testimony." 

 "When a jury receives substantial evidence that a witness who has implicated the 

defendant was an accomplice, a trial court on its own motion must instruct it on the 

principles regarding accomplice testimony. [Citation.] This includes instructing the 

jury that an accomplice's testimony implicating the defendant must be viewed with 

caution and corroborated by other evidence. [Citations.]" (People v. Houston (2012) 54 

Cal.4th 1186, 1223.) 

"An accomplice is someone subject to prosecution for the charged crimes by 

reason of aiding and abetting or being a member of a conspiracy to commit the charged 

crimes. [Citations.] . . . [A]n aider and abettor must act 'with knowledge of the criminal 

purpose of the perpetrator and with an intent or purpose either of committing, or of 

encouraging or facilitating commission of, the offense.' [Citation.] In other words, an 

aider and abettor of a specific intent crime shares the perpetrator's specific intent when 

he or she knows of the perpetrator's criminal purpose and aids, promotes, encourages, or 
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instigates the perpetrator with the intent of encouraging or facilitating the commission 

of the crime. [Citation.]" (People v. Houston, supra, 54 Cal.4th at p. 1224.) 

Based on Thomas's statements to Detective Fenske there was some evidence that 

the four witnesses knew of appellant's criminal purpose. Thomas said that appellant 

"was telling everyone in the car that he was going to take out everyone at [Randolph's] 

house." We need not decide whether there is substantial evidence that any of the four 

witnesses intended to facilitate the commission of the crimes. Even if there is 

substantial evidence, not giving a sua sponte instruction on accomplice testimony was 

harmless error. 

" 'A trial court's failure to instruct on accomplice [testimony] . . . is harmless if 

there is sufficient corroborating evidence in the record.' [Citation.] 'Corroborating 

evidence may be slight, may be entirely circumstantial, and need not be sufficient to 

establish every element of the charged offense.' [Citation.] The evidence is 'sufficient 

if it tends to connect the defendant with the crime in such a way as to satisfy the jury 

that the accomplice is telling the truth.' [Citation.]" (People v. Gonzales (2011) 52 

Cal.4th 254, 303.) "[I]n the absence of sufficient corroboration we will submit the 

omission of accomplice instructions to the harmless error analysis for state law error 

under People v. Watson [(1956) 46 Cal.2d 818, 836]." (Id., at p. 304.) Watson

"requires reversal if, after an examination of the entire case, 'it is reasonably probable 

that a result more favorable to the appealing party would have been reached in the 

absence of the error.' " (Id., at p. 303.) "[T]he corroboration requirement itself is a 

matter of state law, not due process. [Citations.] A fortiori, when there is 

sufficient corroboration, the failure to give accomplice instructions does not violate due 

process. [Citations.]" (People v. Felton (2004) 122 Cal.App.4th 260, 273-274.) 

Here, the corroborating evidence consists of statements by Randolph and Bagnall 

and their housemate, Loftin. Approximately two months after the incident, Randolph 

told Deputy McDonald that appellant had stabbed him. We recognize that, toward the 

end of the interview with McDonald, Randolph reversed course and "made a statement 
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that he couldn't confirm it was [appellant], that that's just what he was told." Randolph 

said, " 'I was in a blackout at the time the stabbing occurred.' " But the jury could have 

reasonably concluded that Randolph was lying. If he had been "in a blackout," he could 

not have remembered that "Irv tried to get [him] in the neck and femoral." Nor could he 

have remembered other details of the incident, such as that "he was only able to stop the 

attack when he . . . 'smashed [appellant] in the nose and blood started pouring out.' " In 

view of Randolph's close relationship with appellant, he surely would have known 

whether appellant was his assailant. Bagnall testified that after the stabbing Randolph 

had said appellant's name but "he was asking [her] to call for [appellant]." It is 

reasonable to infer that Randolph said appellant's name because he recognized appellant 

as his assailant. Randolph needed to call for paramedics, not for appellant. 

 Randolph's identification of appellant is supported by Loftin's statements. The 

night of the stabbing, Loftin told a deputy sheriff that he had heard Randolph say "it [the 

stabber] was either Herb or Irv." Later that same night at the sheriff's station, Loftin 

told a detective that appellant "had stabbed Dustin because Dustin gave back a derringer 

gun that [appellant] had stolen from his girlfriend's landlord." This explains why 

Thomas heard appellant yell outside Randolph's house, " '[W]here is my gun?' " At trial 

Loftin testified that, when he heard someone outside call, "Hey, Dustin," he "thought it 

[the person calling] could have been [appellant]," although "[i]t could have been a few 

different people." 

Bagnall saw the stabber. Randolph told Deputy McDonald that "Irv tried to stab 

[her]." Bagnall knew appellant well. Loftin testified that he "couldn't count all the 

times" that appellant had visited his house in the cul-de-sac. Appellant had "hung out 

with [Loftin] and Dustin and Shawna [Bagnall]." He had even "cooked dinner for 

everyone at the house." On several occasions, he had spent the night there. On the 

night of the stabbing, Bagnall told sheriff's deputies that appellant had stabbed 

Randolph. At trial Bagnall testified that that she was unable to see the stabber's face 
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and did not know who he was. But the jury could have reasonably concluded that she 

had told the truth on the night of the stabbing. 

" 'Corroborating evidence may be slight . . . .' " (People v. Gonzales, supra, 52 

Cal.4th at p. 303.) Randolph's, Bagnall's, and Loftin's statements constitute ample 

corroborating evidence. Thus, any error in the trial court's omission of the instruction 

on accomplice testimony was harmless. (Id., at pp. 303-304.) 

Admission of Evidence of a BB Gun 

 Appellant maintains that the trial court erroneously admitted evidence of a BB 

gun that was "recovered from the vehicle in which he was an occupant" at the time of 

his arrest two days after the stabbing. Appellant concedes that "[t]he BB gun was 

arguably in a location where appellant could have possessed it, and a subsequent 

forensic analysis determined that it contained appellant's DNA." Appellant argues that 

evidence of the BB gun should have been excluded because it lacked relevance and its 

"prejudicial effect outweighed any probative value." "We review for an abuse 

of discretion the trial court's rulings on the admissibility of evidence. [Citation.]" 

(People v. McCurdy (2014) 59 Cal.4th 1063, 1095.) 

 The trial court did not abuse its discretion. Evidence of the BB gun was relevant 

to corroborate Thomas's and Taylor's statements that they had seen appellant in 

possession of a firearm on the night of the stabbing. The BB gun was a replica of a 

Walther semi-automatic firearm. It had a slide that "will go back and make [a] racking 

sound, metal on metal." The BB gun had the "full weight" of and was indistinguishable 

from a real handgun. Thomas said that, on the way to Randolph's house, appellant "had 

a semi-automatic weapon between his legs" and was "racking" the slide of the firearm 

"back and forth." Thomas also said that, upon arriving at the cul-de-sac where 

Randolph lived, appellant "pulled out a semi-automatic handgun, racked it and stated, . . 

. 'I'm going to hurt all you motherfuckers.' " Taylor testified that, when he dropped 

appellant off at Nick Myer's house after the stabbing, appellant pulled a pistol out of his 

back pocket, "put the slider back and a bullet popped out of it." 
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The trial court reasonably concluded that the probative value of the evidence of 

the BB gun was not substantially outweighed by its prejudicial impact. (Evid. Code, 

§ 352.) Appellant's possession of a BB gun had little, if any, prejudicial impact because 

evidence was before the jury that appellant had displayed a real handgun on the night of 

the stabbing. The BB gun mitigated the prejudicial impact of this evidence by tending 

to show that the handgun displayed by appellant was not a lethal firearm but was merely 

a BB gun. 

 If the trial court had erred in admitting evidence of the BB gun, the error would 

have been harmless. The evidence against appellant was overwhelming. It is not 

reasonably probable that a result more favorable to appellant would have been reached 

if evidence of the BB gun had been excluded. (People v. Watson, supra, 46 Cal.2d at p. 

836.) 

Disposition 

 The judgment is affirmed. 

NOT TO BE PUBLISHED. 

 YEGAN, J. 

We concur: 

 GILBERT, P.J. 

 PERREN, J. 
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Rogelio Flores, Judge 

Superior Court County of Santa Barbara 

______________________________ 

 Mark R. Feeser, under appointment by the Court of Appeal for Appellant. 

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

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Steven D. 

Matthews, Supervising Deputy Attorney General, Rma R. Maline, Deputy Attorney 

General, for Plaintiff and Respondent.