Filed 1/15/15 P. v. Alvarado CA4/1 

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT 

DIVISION ONE 

STATE OF CALIFORNIA 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

MARCOS ALVARADO, 

 Defendant and Appellant. 

 D066501 

 (Super. Ct. No. FSB701206) 

 APPEAL from a judgment of the Superior Court of San Bernardino County, 

William Jefferson Powell, IV, Judge. Reversed. 

 David L. Kelly, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

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

General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and Sabrina 

Y. Lane-Erwin, Deputy Attorneys General, for Plaintiff and Respondent. 
2 

 A jury found Marcos Alvarado guilty of one count of first degree murder (Pen. 

Code, § 187, subd. (a));1 and one count of attempted murder, with the further finding that 

the attempted murder was committed willfully, deliberately and with premeditation 

(§§ 187, subd. (a), 664, subd. (a)). For both counts the jury also made true findings on 

firearm allegations. (§ 12022.53, subds. (b), (c), (d).) Alvarado admitted a prior strike, 

and the trial court sentenced Alvarado to prison for a term of 130 years to life. 

 Alvarado contends that the trial court prejudicially erred by refusing to instruct the 

jury on voluntary manslaughter under the theory of imperfect self-defense despite 

defense counsel's request for that instruction. We conclude that the trial court erred in 

refusing to give the instruction, and the error was prejudicial. We accordingly reverse the 

judgment. 

I 

FACTUAL AND PROCEDURAL BACKGROUND 

 On April 8, 2007, at approximately 1:30 a.m., Alvarado stood near a vehicle in the 

parking lot of the Zendejas restaurant and bar in Colton, California, and fired at least six 

shots into the vehicle. The vehicle's driver, Isabel Fernandez (Isabel),2 incurred a nonfatal bullet wound to her stomach. Isabel's husband, Jonathan Fernandez (Fernandez), 

was in the front passenger seat and incurred a fatal bullet wound to his chest, as well one 

 

1 Unless otherwise indicated, all further statutory references are to the Penal Code. 

2 At the time of the shooting, Isabel had the surname Fernandez, but at the time of 

trial she had the surname Flores. For the sake of clarity, we will refer to Isabel by her 

first name, and we intend no disrespect by doing so. 
3 

bullet wound to his head and one to his back. Fernandez's sister, Tina Fernandez (Tina),3

who was in the back seat of the vehicle, was not shot. 

 Alvarado fled to Mexico immediately after the shooting, and was eventually 

arrested there in 2010. Alvarado was charged with one count of first degree murder for 

Fernandez's death and two counts of attempted first degree murder based on his act of 

shooting at Isabel and Tina inside the vehicle. 

 At trial, the People presented several witnesses who described the shooting and the 

events leading up to it, and Alvarado testified in his own defense. As all of the witnesses 

testified, during the evening of the shooting Alvarado and his girlfriend, Lizette Rios, 

were sitting at one of the tables inside Zendejas. Fernandez, Isabel, Tina, and their friend 

Jesse Roque were sitting at a second table. Nearby was a third table of four or five men 

(the men from the third table). According to Tina, Isabel and Roque, no one from their 

group interacted with anyone at the other tables, as they did not know them. 

 Witnesses described some kind of conflict inside the restaurant between Alvarado 

and the men from the third table. A waitress saw Alvarado approach the men from the 

third table several times, looking slightly angry. Tina observed Alvarado arguing loudly 

with his girlfriend, Rios, and giving angry looks to the men from the third table because 

Alvarado thought that the men "kept checking his girlfriend out." Isabel saw Alvarado 

get up and go over to the men from the third table to argue with them. A security guard 

 

3 To avoid confusing her with her brother, we will respectfully refer to Tina 

Fernandez by her first name. 
4 

eventually asked Alvarado to leave the restaurant. According to one witness, Alvarado 

was aggressive toward the security guard. 

 Alvarado testified that his conflict with the men from the third table arose because 

the men made several gang-related comments to him. One of the men said, "This is 

Colton" to Alvarado, which he understood as the man "trying to bang on" him. 

According to Alvarado, although he had numerous visible gang-related tattoos, he had 

not been an active gang member for several years, and thus told one of the men, "I don't 

fuck around" and "I don't bang," but the man just smirked at him. Alvarado interacted 

with the men twice more during the evening. After seeing the men talking about him, 

Alvarado walked by them and said, "Hey, I already told you guys, I got no problem." 

Later, Alvarado went over to the men and said, "It's cool" and tried to shake hands with 

one of the men, but his hand was slapped away. A security guard then came up and 

asked Alvarado to leave. Alvarado also testified that Fernandez's group appeared to 

know the men from the third table because Alvarado saw one of the men from 

Fernandez's group go over and shake hands with the men from the third table. 

 According to the evidence at trial, the Fernandez party left the restaurant around 

the same time that Alvarado and Rios left. As Alvarado was leaving the restaurant, he 

went into the restroom while Rios went to Alvarado's truck. Rios backed the truck out of 

its parking space and hit a parked car. A security guard told Rios to give him the keys to 

the truck and to wait until she was able to exchange insurance information with the owner 

of the other car. When Alvarado came out into the parking lot, he saw what had 

happened and became upset and angry that the security guard would not let them leave, 
5 

calling the security guard a "fucking rent a cop." The security guard went inside the 

restaurant to call the police. Alvarado walked over by his truck. 

 Meanwhile, Fernandez's group had exited the restaurant and was trying to leave 

the parking lot. Roque had driven on his own to the restaurant, and he could not pull his 

car out of its parking space because Alvarado's truck was left in a position that blocked 

Roque's car. Roque sat on the trunk of his car while he waited for Alvarado's truck to be 

moved. 

 Fernandez, Isabel and Tina walked to their Chevy Tahoe and Isabel pulled out into 

the parking lot. A friend, who managed the restaurant, stopped to speak with Fernandez, 

Isabel and Tina after they backed out. The Tahoe then pulled up near Alvarado's truck 

and Roque, and the shooting occurred a short time later. Alvarado and the other 

witnesses gave different accounts of the shooting. 

 Based on the testimony of Isabel, Tina, Roque, the restaurant manager and a 

security guard, when the Tahoe drove up near Roque, Fernandez shouted out to Roque to 

ask him what was going on and why he wasn't leaving.4 Alvarado reacted as if he 

thought Fernandez was shouting at him, and said something such as "[A]re you talking to 

me?" or "What did you say?" According to witnesses, Fernandez said, "I wasn't talking 

to you" or "It's cool." 

 

4 Roque described the latter part of his conversation with Fernandez, after he 

already told him that he was blocked by Alvarado's truck and Fernandez had waited for a 

while, as follows: "[Fernandez] rolls down the window. I said what's up? Let's go fool. 

I was like, man, it's cool." On cross-examination, however, Roque denied testifying that 

anyone used the term "fool." 
6 

 Alvarado reached into his truck and took out a .32 caliber gun.5 Alvarado loaded 

the gun, stepped toward the Tahoe and started shooting. Fernandez turned to Isabel and 

Tina to push their heads down. Alvarado fired at least six shots at the Tahoe and then ran 

away while the security guard shot at him. Isabel, who was shot in the stomach, drove 

the Tahoe to the hospital, where Fernandez later died from one of the three gunshot 

wounds he incurred. 

 According to Alvarado's testimony, when he entered the parking lot after using the 

restroom, he noticed some of the men from the third table in the parking lot. Specifically, 

Alvarado observed a total of five men in the parking lot, including Roque who was by the 

trunk of his car. As the security guard went inside the restaurant to call the police and 

Alvarado walked toward his truck, Alvarado heard Roque say "What's up now, fool?" 

Alvarado then saw the men in the parking lot gesture toward each other and make eye 

contact. The men in the parking lot stood up like they were going to start walking as the 

Tahoe drove up toward Alvarado's truck. 

 Alvarado became concerned about being attacked by the men in the parking lot, so 

he reached into his truck and pulled out a gun while the Tahoe drove up. According to 

Alvarado, he kept a gun in his car because during the years of his active gang 

involvement he had been the victim of two shootings, including a drive-by shooting in 

which he was seriously injured, and he was afraid of being shot again. 

 

5 One witness, Isabel, testified she saw Alvarado take the gun out of his pants. 
7 

 As the Tahoe drove up, Alvarado saw Fernandez in the passenger seat. According 

to Alvarado, Fernandez had the window down and was raising his hand while holding a 

revolver. Alvarado was scared and thought he was going to be shot. After seeing 

Fernandez's gun, Alvarado pulled out his gun and shot at the Tahoe several times. 

Alvarado testified that he heard a loud gunshot "almost simultaneous" with his own 

gunshot, although he was not sure where the gunshot was coming from. He testified, 

"my mind thinks it is this guy in front of me, but that sound is kind of coming from the 

back." Alvarado was not sure how many times he was shot at. Alvarado ran a few 

blocks to his brother's house where he discarded his gun in the trash and then fled to 

Mexico where he was arrested more than three years later. 

 No witness other than Alvarado reported seeing Fernandez with a gun or seeing 

the men from the third table in the parking lot. 

 The jury found Alvarado guilty of one count of first degree murder for Fernandez's 

death (§ 187, subd. (a)), and one count of attempted murder with Isabel as the victim 

(§ 187, subd. (a), 664, subd. (a)), with the further finding that the attempted murder was 

committed willfully with premeditation and deliberation, and a true finding on firearm 

allegations for both counts (§ 12022.53, subds. (b), (c), (d)). The jury found Alvarado 

not guilty of attempted murder with Tina as the victim. After Alvarado admitted a prior 

strike, the trial court imposed a prison term of 130 years to life. 
8 

II 

DISCUSSION 

 During discussion of jury instructions, Alvarado requested that the trial court 

instruct the jury with CALCRIM No. 571, which states that a defendant who commits a 

killing based on imperfect self-defense is guilty of voluntary manslaughter, not murder. 

The trial court refused to give the instruction, deciding to instruct the jury only on the 

theory of perfect self-defense. The sole issue on appeal is whether the trial court 

prejudicially erred by refusing to instruct the jury with CALCRIM No. 571 that Alvarado 

would be guilty of voluntary manslaughter if he acted in imperfect self-defense.6

A. Applicable Legal Standards

 "Self-defense is perfect or imperfect. For perfect self-defense, one must 

actually and reasonably believe in the necessity of defending oneself from imminent 

 

6 With the inapplicable optional and parenthetical language removed, CALCRIM 

No. 571 provides in relevant part: "A killing that would otherwise be murder is reduced 

to voluntary manslaughter if the defendant killed a person because (he/she) acted in 

imperfect self-defense. [¶] If you conclude the defendant acted in complete self-defense, 

(his/her) action was lawful and you must find (him/her) not guilty of any crime. The 

difference between complete self-defense and imperfect self-defense depends on whether 

the defendant's belief in the need to use deadly force was reasonable. [¶] The defendant 

acted in imperfect self-defense if: 1. The defendant actually believed that (he/she) was in 

imminent danger of being killed or suffering great bodily injury; [¶] AND [¶] 2. The 

defendant actually believed that the immediate use of deadly force was necessary to 

defend against the danger; [¶] BUT [¶] 3. At least one of those beliefs was 

unreasonable. [¶] Belief in future harm is not sufficient, no matter how great or how 

likely the harm is believed to be. [¶] In evaluating the defendant's beliefs, consider all 

the circumstances as they were known and appeared to the defendant. [¶] . . . [¶] The 

People have the burden of proving beyond a reasonable doubt that the defendant was not 

acting in imperfect self-defense. If the People have not met this burden, you must find 

the defendant not guilty of murder." (CALCRIM No. 571.) 
9 

danger of death or great bodily injury. [Citation.] A killing committed in perfect selfdefense is neither murder nor manslaughter; it is justifiable homicide. [Citation.] [¶] 

One acting in imperfect self-defense also actually believes he must defend himself from 

imminent danger of death or great bodily injury; however, his belief is unreasonable." 

(People v. Randle (2005) 35 Cal.4th 987, 994 (Randle).) Specifically, " ' "[u]nder the 

doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed 

another person because the defendant actually, but unreasonably, believed he was in 

imminent danger of death or great bodily injury, the defendant is deemed to have acted 

without malice and thus can be convicted of no crime greater than voluntary 

manslaughter." ' " (People v. Manriquez (2005) 37 Cal.4th 547, 581.)7 "The sole 

difference between true self-defense and 'unreasonable self-defense' is that the former 

applies only when the defendant acts in response to circumstances that cause the 

defendant to fear, and would lead a reasonable person to fear, the imminent infliction of 

death or great bodily injury [citation]; unreasonable self-defense, on the other hand, does 

not require the defendant's fear to be reasonable." (People v. Barton (1995) 12 Cal.4th 

186, 199-200 (Barton).) 

 

7 Recently, in People v. Elmore (2014) 59 Cal.4th 121, 146 (Elmore), our Supreme 

Court further refined the concept of imperfect self-defense by explaining that "defendants 

who mistakenly believed that actual circumstances required their defensive act may argue 

they are guilty only of voluntary manslaughter, even if their reaction was distorted by 

mental illness. But defendants who contend they killed in self-defense because of a 

purely delusional perception of threat must make that claim at a sanity trial." Here, there 

is no suggestion that Alvarado was acting under a purely delusional perception when 

committing the shooting. Instead, he based his acts on his perception of the actual 

circumstances. 
10 

 Voluntary manslaughter arising from imperfect self-defense is "a lesser offense 

included in the crime of murder." (Barton, supra, 12 Cal.4th at pp. 193, 200-201.) "A 

trial court must instruct on all lesser included offenses supported by substantial 

evidence." (People v. Duff (2014) 58 Cal.4th 527, 561 (Duff).) Thus, as with any lesser 

included offense, "[w]henever there is substantial evidence that the defendant killed in 

unreasonable self-defense, the trial court must instruct on this theory of manslaughter." 

(Elmore, supra, 59 Cal.4th at p. 134.) The need to instruct "arises only when there is 

substantial evidence that the defendant killed in unreasonable self-defense, not when the 

evidence is 'minimal and insubstantial.' " (Barton, supra, 12 Cal.4th at p. 201.) "[T]he 

existence of 'any evidence, no matter how weak' will not justify instructions on a lesser 

included offense, but such instructions are required whenever evidence that the defendant 

is guilty only of the lesser offense is 'substantial enough to merit consideration' by the 

jury." (People v. Breverman (1998) 19 Cal.4th 142, 162-163.) "Substantial evidence is 

evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a 

reasonable jury could find persuasive.' " (Barton, at p. 201, fn. 8.) "In deciding whether 

there is substantial evidence of a lesser offense, courts should not evaluate the credibility 

of witnesses, a task for the jury." (Breverman, at p. 162.) 

 Contrary to a suggestion in Alvarado's briefing, the same legal standard applies to 

the trial court's obligation to instruct on imperfect self-defense whether or not the 

defendant makes a request for the instruction. In all instances, the instruction must be 

given if there is substantial evidence to support it. (See People v. Cole (2004) 33 Cal.4th 

1158, 1215 [" ' "a trial court must instruct on lesser included offenses, even in the absence 
11 

of a request, whenever there is substantial evidence raising a question as to whether all of 

the elements of the charged offense are present" ' " and "[c]onversely, even on request, 

the court 'has no duty to instruct on any lesser offense unless there is substantial evidence 

to support such instruction' "].) Accordingly case law considering whether a trial court 

erred in not sua sponte instructing on imperfect self-defense is just as applicable as case 

law considering whether the trial court erred in denying a defendant's request for such an 

instruction. 

 " 'On appeal, we review independently the question whether the trial court 

improperly failed to instruct on a lesser included offense.' " (People v. Banks (2014) 59 

Cal.4th 1113, 1160.) 

B. Substantial Evidence Supported the Giving of an Instruction on Imperfect SelfDefense 

 According to the applicable legal standards, we examine whether there was 

substantial evidence presented at trial that could have supported a jury finding that 

Alvarado shot at the Tahoe and killed Fernandez "in the actual but unreasonable belief 

that he [was] in imminent danger of death or great bodily injury." (Duff, supra, 58 

Cal.4th at p. 559.) As we will explain, Alvarado's testimony described a scenario under 

which the jury could have found that Alvarado acted in imperfect self-defense. 

 As CALCRIM No. 571 instructs, a "defendant acted in imperfect self-defense if: 

1. The defendant actually believed that (he/she) was in imminent danger of being killed 

or suffering great bodily injury; [¶] AND [¶] 2. The defendant actually believed that 
12 

the immediate use of deadly force was necessary to defend against the danger; [¶] BUT 

[¶] 3. At least one of those beliefs was unreasonable." 

 Based on Alvarado's testimony, which the jury was entitled to credit, there is no 

dispute that the evidence supported two of the predicate factual findings for imperfect 

self-defense as set forth in CALCRIM No. 571, namely that Alvarado (1) "actually 

believed that [he] was in imminent danger of being killed or suffering great bodily 

injury"; and (2) "actually believed that the immediate use of deadly force was necessary 

to defend against the danger." (CALCRIM No. 571.) As Alvarado testified, he thought 

that he was being attacked by a group of gang members and that Fernandez was part of 

the group of gang members because he had seen someone from Fernandez's group shake 

hands with the men from the third table. Alvarado was afraid of being shot, especially 

because he was the victim of a previous drive-by shooting. Therefore, when Alvarado 

saw Fernandez raise a revolver, he thought that Fernandez was preparing to shoot, and he 

opened fire and shot at the Tahoe. Indeed, by agreeing to instruct on perfect self-defense 

the trial court tacitly recognized that the evidence would support a finding that Alvarado 

actually believed that he was in imminent danger of being killed or suffering great bodily 

injury and that the situation required the immediate use of deadly force.8 

 

8 Just like the theory of imperfect self-defense, the theory of perfect self-defense 

requires a jury to find that the defendant "believed that [he] was in imminent danger of 

being killed or suffering great bodily injury," and that "the immediate use of deadly force 

was necessary to defend against that danger." (CALCRIM No. 505.) 
13 

 The main difference between imperfect self-defense and perfect self-defense is 

that perfect self-defense requires a defendant's reasonable belief in the need for deadly 

force, but imperfect defense applies when the defendant's belief was unreasonable. 

(Barton, supra, 12 Cal.4th at pp. 199-200; compare CALCRIM No. 571 with CALCRIM 

No. 505.) Although it found the requirements for perfect self-defense to be present, the 

trial court declined to instruct on imperfect self-defense, reasoning that if the jury 

credited Alvarado's testimony that Fernandez was pointing a gun at him, it only could 

have found perfect self-defense, not imperfect self-defense. According to the trial court's 

reasoning, if Fernandez was pointing a gun at Alvarado, a jury would necessarily find 

that it was reasonable for Alvarado to believe he was in imminent danger of great bodily 

injury and that it was reasonable for Alvarado to believe that the immediate use of deadly 

force was necessary to defend against that danger. As we will explain, we disagree with 

the trial court's evaluation of the evidence. 

 The trial court's view of the evidence was flawed because, based on the record, a 

jury could find that Alvarado actually believed that Fernandez was going to shoot him if 

he did not shoot first, but that belief was not reasonable. The jury could have determined 

that even if, as Alvarado testified, he saw Fernandez with a revolver in his hand, it was 

not reasonable to conclude that Fernandez was about to shoot the revolver. Alvarado was 

in an angry and agitated emotional state in the parking lot and felt trapped because the 

security guard had the keys to his truck. Alvarado had a conflict with the men from the 

third table and was ejected from the restaurant. Alvarado thought the men from the third 

table had followed him into the parking lot, and he incorrectly believed that Fernandez 
14 

and Roque, who were also in the parking lot, were associated with those men because he 

witnessed a hand shake between the two groups inside the restaurant. Based on those 

facts, the jury could have determined that when Alvarado saw the men gesturing to each 

other in the parking lot while Fernandez drove up holding a revolver, Alvarado 

unreasonably overreacted and concluded he was going to be shot in a coordinated gangmotivated attack. Accordingly, substantial evidence supported giving an instruction on 

imperfect self-defense. 

 Our Supreme Court recently recognized that it is proper for a trial court to refuse 

to instruct on imperfect self-defense when the defendant's own version of events, if 

credited, would, as a matter of law, amount to perfect self-defense because the victim 

shot first. (Duff, supra, 58 Cal.4th at p. 562.) However, this is not such a case because 

there is no evidence, even under Alvarado's testimony, that Fernandez shot first. In Duff, 

the defendant claimed that he shot at the victims in their vehicle only after the victims 

pointed multiple guns at him and opened fire. (Id. at pp. 534-535.) Our Supreme Court 

explained that an instruction on imperfect self-defense was not required because the 

victims shot first. "The problem . . . is that if believed, [the defendant's] version could 

lead only to a finding of justifiable homicide and a total acquittal on the homicide 

charges. The use of lethal force in response to being shot at repeatedly is perfect selfdefense and no crime. [Citations.] While [the defendant] argues the jury could have 

concluded he unreasonably misperceived the situation, the circumstances described by 

[the defendant] leave no room for such shades of gray. Either, he was attacked, in which 
15 

case he committed no crime, or he was not, in which case he committed murder." (Id. at 

p. 562.) 

 Other case law employs similar reasoning to Duff in concluding that an instruction 

on imperfect self-defense is not warranted when the defendant's version of events, if 

credited, would necessarily lead to a finding of perfect self-defense. (People v. 

Valenzuela (2011) 199 Cal.App.4th 1214, 1232 [it was not error to refuse an instruction 

on imperfect self-defense because the defendant's testimony that he heard the victims 

shooting at him before he shot at them "if the jury believed him, could only lead to a 

conclusion that he acted in justifiable self-defense . . . , not to a conclusion that he acted 

in imperfect self-defense"]; People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1275 

[instruction on imperfect self-defense not required because "[d]efendant's statements, if 

believed by the jury, could only lead to an acquittal based on justifiable homicide. It is 

inconceivable a jury could find defendant (who had earlier been attacked by [the victim] 

with a knife, and whose life was spared only because others intervened) acted 

unreasonably in killing [the victim] after [the victim] once again attacked him with a 

knife"]; People v. Szadziewicz (2008) 161 Cal.App.4th 823, 834 ["[w]here, as here, the 

defendant's version of events, if believed, establish[es] actual self-defense, while the 

prosecution's version, if believed, negates both actual and imperfect self-defense, the 

court is not required to give the instruction"].) 

 Alvarado's version of events, unlike the defendant's statement in Duff, "leave[s] 

room for . . . shades of gray" on the question of whether it was reasonable for Alvarado to 

believe that the immediate use of deadly force was necessary in the situation. (Duff,
16 

supra, 58 Cal.4th at p. 562.) Although, as Duff explains, a person being shot at may use 

lethal force in response (ibid.), Alvarado did not testify that he was being shot at before 

he opened fire on the Tahoe, and he did not describe any other act taken by Fernandez 

that justified the use of deadly force as a matter of law. Therefore, the jury could have 

found that Alvarado overreacted to the situation based on his emotional state and 

unreasonably perceived that Fernandez was about to shoot him if he did not shoot first. 

 Because Alvarado's testimony, if credited by the jury, left room for a finding that 

Fernandez was not about to shoot and that Alvarado therefore acted unreasonably, this 

case falls into the category of other cases where an imperfect self-defense instruction was 

required because defendant's version of the facts could support a finding that the 

defendant unreasonably concluded that the situation made it necessary to use deadly 

force. (Barton, supra, 12 Cal.4th at pp. 202-203 [when the defendant testified that he 

fired his gun at the victim because he thought he saw the victim coming at him with a 

knife, an instruction on imperfect self-defense was required because "[b]ased on all the 

evidence, the jury could reasonably conclude that [the victim] was unarmed, but that 

defendant, his judgment clouded by his anger, unreasonably believed that [the victim] 

was armed and trying to attack him, and that defendant deliberately fired his gun in 

response to this perceived threat"]; People v. Ceja (1994) 26 Cal.App.4th 78, 86 ["While 

defendant testified that the victim pulled a gun from his waistband and that defendant saw 

the barrel of the victim's gun before defendant shot the victim, no gun was found at the 

scene and prosecution witnesses testified that the victim did not have a gun. . . . The jury 

was entitled to accept portions of a witness's testimony and to disbelieve other portions 
17 

[citation] and might well have concluded that defendant was mistaken about the victim 

being armed but also have concluded that defendant honestly but unreasonably believed 

his life was in danger"]; People v. Viramontes (2001) 93 Cal.App.4th 1256, 1263 [when 

the evidence showed that someone shot at defendant first, but the defendant could have 

been mistaken about the shot coming from the direction of the victim, the evidence 

supported an instruction on imperfect self-defense]; People v. Campbell (2014) 227 

Cal.App.4th 746, 763 [imperfect self-defense instruction should have been given based 

on defendant's testimony that he reacted by shooting when he heard someone shout "gun, 

gun" and believed that "people from the opposing group of people were 'coming out with 

guns' "].)9

 We therefore conclude that the trial court erred in refusing to instruct on voluntary 

manslaughter under the theory of imperfect self-defense as set forth in CALCRIM No. 

571. 

 

9 Further, even if the jury concluded that Alvarado reasonably believed that 

Fernandez was about to shoot, the jury still could have concluded Alvarado acted 

unreasonably by deciding to continue to shoot, for a total of at least six shots, when the 

perceived threat from Fernandez had been neutralized by one of the earlier shots. 

Focusing on witness testimony that the occupants of the Tahoe ducked down in response 

to Alvarado's shots, and on Alvarado's own testimony that after he started shooting at the 

Tahoe, he heard gunshots that sounded like they were coming from somewhere behind 

him, not from the Tahoe, the jury could have concluded that although it may have been 

reasonable for Alvarado to fire an initial shot at the Tahoe to defend against a perceived 

threat from Fernandez's gun, under the circumstances it was not reasonable to continue to 

fire a total of six shots. (See People v. Shade (1986) 185 Cal.App.3d 711, 716 [belief in 

need for self-defense no longer reasonable after victim, who threatened defendant with a 

gun, had already been beaten unconscious].) 
18 

C. The Error Was Prejudicial 

 Having concluded that the trial court erred in refusing to instruct on imperfect selfdefense, we next examine whether the error was prejudicial. 

 An error in failing to instruct on imperfect defense "is state law error alone, and 

thus subject, under article VI, section 13 of the California Constitution, to the harmless 

error test articulated in People v. Watson (1956) 46 Cal.2d 818, 836. . . . ' "A conviction 

of the charged offense may be reversed in consequence of this form of error only if, 'after 

an examination of the entire cause, including the evidence' (Cal. Const., art. VI, § 13), it 

appears 'reasonably probable' the defendant would have obtained a more favorable 

outcome had the error not occurred." ' " (People v. Randle (2005) 35 Cal.4th 987, 1003 

(Randle).) " ' " '[A] "probability" in this context does not mean more likely than not, but 

merely a reasonable chance, more than an abstract possibility.' " ' " (People v. Wilkins

(2013) 56 Cal.4th 333, 351 (Wilkins) [discussing instructional error].) Here, as we will 

explain, there is a reasonable probability that, had the jury been instructed on imperfect 

self-defense, it would have found the requirements of imperfect self-defense to be 

present, leading to a verdict of voluntary manslaughter and attempted voluntary 

manslaughter rather than murder and attempted murder. 

 In determining whether an error in failing to instruct on imperfect self-defense was 

prejudicial, we may look to the strength of the evidence supporting the applicability of 

the omitted instruction. (People v. Moye (2009) 47 Cal.4th 537, 556 [in evaluating 

prejudice, " 'an appellate court may consider, among other things, whether the evidence 

supporting the existing judgment is so relatively strong, and the evidence supporting a 
19 

different outcome is so comparatively weak, that there is no reasonable probability the 

error of which the defendant complains affected the result' "].) At trial two main 

competing theories were offered as to why Alvarado opened fire on the Tahoe. Defense 

counsel argued that Alvarado opened fire because he saw Fernandez with a gun and 

believed that Fernandez was about to attack him in coordination with other gang 

members who had been bothering him inside the restaurant. That theory was supported 

by the substantial evidence of Alvarado's own testimony about what occurred in the 

parking lot. The prosecutor, in contrast, relying on other witnesses' testimony about what 

they saw in the parking lot, argued that Alvarado could not have seen Fernandez with a 

gun, and that, instead, Alvarado opened fire on the Tahoe because he felt that Fernandez 

had disrespected him by "brush[ing] him off" when Alvarado asked "What did you say" 

or "Are you talking to me?" 

 Based on the evidence presented at trial, Alvarado's version of events is no less 

plausible than the version presented by the prosecutor. Indeed, a reasonable juror might 

have determined it was more likely, under the circumstances, that Alvarado opened fire 

because he feared an imminent attack rather than that he opened fire on someone with 

whom his only interaction was a brief exchange of words in the parking lot. We 

therefore, conclude that there is a reasonable probability, not just an " 'abstract 

possibility' " (Wilkins, supra, 56 Cal.4th at p. 351), that the jury could have believed that 

Alvarado shot at the Tahoe because he believed he needed to defend himself, but that 

Alvarado's belief was unreasonable. Where, as here, the evidence is sufficiently strong 

that there is a reasonable probability that a jury could have found the doctrine of 
20 

imperfect self-defense to apply, it is prejudicial error for the trial court to have failed to 

give the instruction. (See Randle, supra, 35 Cal.4th at p. 1004 [failure to instruct on 

imperfect self-defense of another was prejudicial when the evidence was susceptible of 

the interpretation that the defendant held an unreasonable belief in that a third party was 

in imminent danger of death or great bodily injury]; Viramontes, supra, 93 Cal.App.4th 

1256, 1263-1264 [the trial court's failure to instruct on imperfect self-defense could not 

be deemed harmless given the evidence at trial making the instruction applicable and 

giving rise to a reasonable probability that a properly instructed jury would have found 

appellant guilty of manslaughter on an imperfect self-defense theory].) 

 In determining that the error was prejudicial, we acknowledge that a trial court's 

failure to instruct on imperfect self-defense may be harmless if other aspects of the jury's 

verdict establish that the jury rejected the factual basis necessary for a finding of 

imperfect self-defense. (See People v. Lewis (2001) 25 Cal.4th 610, 646 ["Error in 

failing to instruct the jury on a lesser included offense is harmless when the jury 

necessarily decides the factual questions posed by the omitted instructions adversely to 

defendant under other properly given instructions."].) However, this is not such a case. 

No other aspect of the jury's verdict indicates that, if given the opportunity, the jury 

would have rejected the necessary factual predicates of imperfect self-defense, namely 

that (1) Alvarado believed he was in danger of being seriously injured or killed; and 

(2) Alvarado believed it was immediately necessary for him to use deadly force; but 

(3) one of those beliefs was unreasonable. The jury's verdict of first degree murder 

reflects a finding that Alvarado acted willfully, with premeditation and deliberation, in 
21 

shooting at the Tahoe, but that finding is not incompatible with any of the necessary 

elements of imperfect self-defense. The jury could have concluded that Alvarado 

unreasonably believed he was going to be attacked in the parking lot, requiring deadly 

force, and that he premeditated and deliberated while deciding what he was going to do in 

reaction to the anticipated attack while getting his gun and loading it.10 

 Significantly too, the record shows that the jury had difficulty with this case, 

taking multiple days to reach a verdict and informing the trial court that it was "hung" 

before ultimately reaching a decision. We may take into account the jury's difficulty in 

reaching a verdict in determining whether the trial court's failure to instruct on an 

applicable lesser included offense was prejudicial, as it shows that the prosecution's case 

for the eventual verdict on the greater offense was not overwhelmingly strong. (Randle, 

supra, 35 Cal.4th at p. 1004 ["In concluding the failure to give the instruction was 

prejudicial, we note the jury, even without having been instructed on this theory, took 

five days to reach its decision."]; People v. Vasquez (2006) 136 Cal.App.4th 1176, 1180 

["The court's erroneous refusal to instruct on imperfect self-defense was not harmless[,]" 

in part because "[t]he murder charge against appellant was not airtight[,]" as "[j]ury 

deliberations spanned three days for an uncomplicated one-count case turning on 

appellant's state of mind when he fired his gun."].) 

 

10 Further, because Alvarado shot at least six times into the Tahoe, a reasonable jury 

could decide that Alvarado had sufficient time to premeditate and deliberate between 

those shots, even though motivated to start shooting by the unreasonable belief that he 

was under attack. 
22 

 We conclude that the trial court prejudicially erred, as it is reasonably probable 

that, had the jury been instructed with CALCRIM No. 571 on the theory of imperfect 

self-defense, Alvarado would have obtained the more favorable outcome of a verdict of 

voluntary manslaughter and attempted voluntary manslaughter. 

DISPOSITION 

 The judgment is reversed and this action is remanded for further proceedings. 

IRION, J. 

WE CONCUR: 

HUFFMAN, Acting P. J. 

O'ROURKE, J.