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Filed 7/22/22 P. v. Broussard CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

CARLTON BROUSSARD,

Defendant and Appellant.

 A161139

 (Alameda County Super. Ct.

 No. 177907A)

A jury convicted defendant Carlton Broussard of two counts of first 

degree murder and other offenses. On appeal, defendant contends the jury 

was incorrectly instructed on self-defense because the instruction stated that 

defendant “must have acted only because of” his belief that he was in 

imminent danger of death or great bodily injury. (Italics added.) We reject 

this contention and find no prejudice in any event. Defendant also raises

claims of sentencing error. As to his challenge to the imposition of fines and 

fees based on inability to pay, we conclude this issue is forfeited. But 

defendant’s claims of unauthorized sentences have merit, as the Attorney 

General concedes. Accordingly, we vacate the sentence because the 25-yearto-life terms for counts 1 and 2 are unauthorized and we remand for 

resentencing. On remand, the trial court is instructed to recalculate 

defendant’s presentence custody credit. In all other respects, the judgment is 

affirmed.
2

FACTUAL AND PROCEDURAL BACKGROUND

By amended information, the Alameda County District Attorney 

charged defendant with the murder of Marcus Sims (Pen. Code,1 § 187, subd. 

(a); count 1), the murder of Donald Ray Ward, Jr., (ibid.; count 2), possession 

of a firearm by a felon (§ 29800, subd. (a)(1); count 3), and second degree 

robbery (§ 211; count 4). The murders were alleged to have occurred on 

January 20, 2015. The robbery was alleged to have occurred five days later, 

and codefendant Damontae Dupree Warfield was also charged with robbery. 

(There were no codefendants for the murder charges.) Various enhancements 

were alleged for counts 1 and 2, including that defendant personally 

discharged a firearm causing great bodily injury and death (§ 12022.53, subd. 

(d)), and the special circumstance of more than one murder was alleged 

(§ 190.2, subd. (a)(3)). 

A jury trial began in January 2020. The jury found defendant guilty of 

all charges, finding defendant guilty of first degree murder in counts 1 and 2,

and found all enhancement and special allegations true. 

Prosecution’s Case

January 20, 2015, murders

In January 2015, Dakila Grayson was in a dating relationship with 

defendant. She knew Donald Ward (one of the murder victims) because they 

had gone to high school together. Grayson heard that Ward and another man 

were committing robberies. Defendant told her that Ward had asked for 

1 Further undesignated statutory references are to the Penal Code. 
3

defendant’s permission to rob an “old man” and defendant had instructed

Ward not to do it.2 Grayson later heard that Ward robbed the man anyway. 

On January 20, Grayson was visiting her grandmother, who lived in

the Campbell Village housing complex in West Oakland.

3 Grayson met with 

defendant, who was outside on 10th Street. He had borrowed her phone and

returned it to her. Grayson was walking on 10th Street toward Willow Street 

to go back to her grandmother’s place with her phone when she saw a van 

coming toward her. The van stopped in the middle of the block because 

defendant was standing in the street. Defendant had a gun in his hand. 

Grayson was a reluctant trial witness and testified that she “d[idn]’t 

really remember” what happened next but “within seconds [she] heard 

gunshots and [she] turned and ran into [her] grandmother’s house.” Grayson

acknowledged, however, that she previously told the police that defendant 

made the men in the van get out and told them to lie on the ground and then

shots were fired. She heard defendant say, “Get out of the car.” Grayson 

viewed the scene from the passenger side of the van. She thought defendant 

was standing on the driver’s side, and she could see the victims lying on the 

pavement from under the van. Grayson indicated that defendant’s gun was 

about two-and-a-half feet long. She did not see defendant shoot the gun. 

In cross-examination, Grayson testified that before the shooting, 

defendant told her that his cousin Tony was trying to have him killed. 

Michael Garcia was familiar with the Campbell Village neighborhood 

and lived there 13 years. He knew Marcus Sims (the other murder victim),

2 As will be seen, the “old man” was Tom, an older man in the 

neighborhood defendant had known all his life; defendant thought of Tom as 

like family. 

3 Dates discussed at trial occurred in 2015.
4

though not well; he knew Ward as “[j]ust a neighborhood kid”; and he knew 

defendant “[p]retty good” and they had hung out a few times. 

Garcia testified that, on January 20 just before 5:00 p.m., he was in his 

apartment with his girlfriend when he heard a single shot. He opened his 

front door and saw two vehicles on the street, a brown van pointed one way 

and a small blue or gray car pointed the opposite way. Defendant was in the 

street with an assault rifle. Defendant was “discharging [the rifle] towards 

the driver’s side of the van.” Garcia testified that he saw another person 

standing on the sidewalk who was wearing a ski mask and holding a 

handgun. He did not see that person fire his weapon. 

Garcia observed defendant shooting at Ward, who was “[t]rying to 

scamper to the back of the van.” Garcia also saw Sims, who was “already 

down trying to scamper underneath the van.” Defendant walked toward the 

driver’s door and pointed the assault rifle down to the ground; he said, “You 

fucking little bitch,” and shot at Sims three or four times. Defendant then 

walked over to the small blue car, threw the rifle in the backseat, and got in 

the passenger’s seat, and the car drove away. 

In cross-examination, Garcia admitted that he was arrested about two 

months after the shooting for possession of methamphetamine, that he 

sometimes sold methamphetamine, and that he had been a drug user for over 

20 years. 

When police arrived at the crime scene, Sims was on the ground near 

the van. Ward was found lying on his back in the trunk area of the van. 

Autopsies showed the victims sustained multiple gunshot wounds. Ward had 

five entry wounds and five exit wounds, and Sims had four entry wounds and 

three exit wounds. They had both been shot in the back. One of Ward’s entry 
5

wounds was at the left lower back, and Sims had entry wounds at the right 

upper back, right lower back, and back of the left thigh. 

Investigation and Arrest

On January 20, Robert Rosin was a sergeant in the homicide section of 

the Oakland Police Department. Rosin testified that he went to the scene of 

the killings around 6:30 p.m. that evening. He observed a gold Dodge 

Caravan with the driver’s window shattered and saw multiple expended rifle 

casings, including two inside the van. Altogether, six expended rifle casings,

one .40 caliber pistol casing, and many bullet fragments were found at the 

scene. 

On March 18, Rosin spoke with Garcia, who was under arrest for 

narcotics charges and a charge related to possession of a firearm. Garcia was 

visibly upset during the interview. Garcia said he was upset because the 

victims and the suspects were his friends and because he feared retaliation 

for cooperating with the police. Garcia told Rosin he saw defendant holding 

an assault rifle and he saw a second person who was wearing a mask. Garcia 

said he saw defendant shoot Sims in the back. 

As part of his investigation, Rosin obtained authorization to wiretap 

certain phones, and recordings of defendant’s telephone conversations were 

played for the jury. In one recording, defendant said to an unknown man 

that he “call[ed] the shot” and he wanted a potential witness “gone.”

4 

4 According to the transcript of the recording played for the jury, 

defendant said to the unknown man, “N***a I ain’t tryin’ to hear none of 

that. I want her gone. I call the – call the shot. The shot supposed to be 

done the way I called it. Pure point blank. You feel me? I ain’t tryin’ to hear 

what nobody else said. N***a asked me what I wanted to be done, and I told 

them that’s supposed to be done. That’s why I’m trippin’. . . . Ain’t nobody 

doin’ it.” 
6

Rosin obtained a warrant for defendant’s arrest. From his 

investigation including analysis of cell phone information, Rosin knew 

defendant was in Florida. When defendant was taken into custody in 

Florida, he initially identified himself as “Tyrell Love.” 

Rosin interrogated defendant on March 21. Defendant said he played 

football with Sims and Ward and never mentioned that he was afraid of 

them. Defendant first denied being at the scene of the shooting, then he said 

he was a witness, and eventually he admitted he was a perpetrator. 

Defendant told Rosin he used a pistol and later admitted he had the assault 

rifle. Defendant also admitted he robbed the Brentwood Smoke Shop a few 

days after the killings. 

Gang Evidence

An Oakland police officer testified as an expert in the investigation of 

gang-related crimes involving criminal street gangs in the city of Oakland. 

He testified that Campbell Village Gang is a criminal street gang that claims 

the Campbell Village housing project and surrounding areas as its turf. In 

his opinion, Warfield (defendant’s codefendant in the robbery charge), Sims,

and Ward were members of Campbell Village Gang. Photographs of

defendant with Campbell Village Gang members showed defendant making 

gang hand signals. Defendant also had a tattoo on his forearm with the 

nickname of a Campbell Village Gang member who had been murdered by

Acorn, a rival gang. 

Asked in cross-examination about his statement, defendant testified

that he did not intend to have a witness killed, rather he wanted her to get 

out of California because the families of the victims had threatened her. 
7

Defense

Minger Dorsey testified he was driving in the Campbell Village area 

and noticed a girl standing at the intersection of 10th and Willow Streets. 

She was looking down the street with “a weird look on her face,” and then 

gunshots started going off. In a statement to the police taken on the day of 

the shooting, Dorsey described seeing a Black man, five foot, seven inches 

tall, about 140 pounds with an assault rifle, but at trial he could not give a 

description of the man with the rifle.

5 Dorsey saw a van. The man with the 

assault rifle shot a man who was on the ground. Dorsey saw another man

approach the van; this man “shot the guy on the ground again with a 

handgun.” Dorsey testified the man with the assault rifle stood over the 

victim and appeared to shoot “[i]nto the body.” It looked like the man with 

the handgun also shot the victim on the ground. Then the two men jumped 

in a car that was parked off to the side, and they left. 

Defendant testified on his own behalf. He was 34 years old at the time 

of trial. In 2015, he lived part time in Campbell Village between 10th and 

Eighth Streets. He has a tattoo that says, “Campbell Village,” and another 

that says, “Long Live Wild Boodie.”

6 

Defendant had known Sims for about 12 years, they hung out a lot, and 

he would see Sims every day. Defendant also knew Ward, who was much 

younger. Ward lived in the neighborhood and was in the “same crowd, but he 

was just a younger generation.” Sims often had a handgun with him, and 

Ward also had a gun. 

5 In closing argument, defense counsel noted that Dorsey described a 

shooter who was “shorter and lighter than” defendant. 

6 Defendant testified that Boodie was the nickname of a friend who had 

been like a brother to him and that Boodie had been shot by an Acorn gang 

member. 
8

Defendant had problems with his cousin, “Little Tony.” Defendant 

knew that Sims and Ward were committing robberies. Asked how they 

started committing so many robberies, defendant testified, “[W]hen my

cousin [Little Tony] came home, I guess he took them under his wing and 

gave them the go ahead to do whatever they wanted to do.” Little Tony “told 

them that they ain’t got to listen to anybody but him and got to answer to 

nobody but him.” 

Defendant testified that he had a close relationship with Tom, an 

elderly man from the neighborhood whom defendant had known his entire 

life. Tom “was like a good parent” and “like a grandpa.” Defendant was 

aware that Sims and Ward robbed Tom more than once. Defendant saw Tom 

in the hospital in January after he had been robbed. Defendant talked to 

Little Tony about his displeasure that Tom had been robbed. 

Defendant testified that he heard Little Tony “had [$]20,000 on my 

head.” He understood that Sims, Ward, and others had been “hired to do 

something to” defendant. He was “scared” and “upset,” because, he testified, 

“I knew if they had an opportunity they was going to kill me.” A friend gave 

defendant a handgun about a week-and-a-half before the shooting. 

Defendant was scared and “had to stay away from the situation,” so he did 

not go outside for a few days and stayed with his girlfriend Grayson in East 

Oakland. Defendant testified he was still scared when he “came out in the 

community” again. 

On the day of the shooting, defendant went to Campbell Village around 

2:00 p.m. and hung out on 10th Street between Willow and Campbell. He got 

a ride there from Dominique, who had a blue four-door car. Defendant was 

outside for a few hours with about 20 people, a mix of men and women. 

Defendant was smoking weed and had Codeine syrup and powder cocaine. 
9

Michael Garcia was there for a while; they “were all there smoking and 

drinking, you know, having another day kickin’ it.” (According to defendant, 

Garcia went home about an hour before the shooting.) 

Defendant had his nine-millimeter handgun with him. He saw other

people with guns, including “big guns.” Defendant testified that a friend 

known as “Saucey Willow” had an assault rifle. 

A little after 5:00 p.m., Sims and Ward pulled up in a Dodge Caravan. 

At first defendant was not concerned. He testified, “I really wasn’t trippin’ off 

of them because I was outside with my family and friends.” Then one of the 

men in the van said, “Motherfucker n***a mind their own business.” 

Defendant understood they were referring to the robbery of Tom. Defendant 

started “exchanging words” with Sims and Ward. One of them said, “If 

Motherfucker ain’t mind their own business, they gonna end up on a T-shirt.” 

Defendant explained that “end up on a T-shirt” meant killed because family 

and friends of a murder victim would commemorate the victim with a 

memorial t-shirt. 

Defendant walked toward the van. Defense counsel asked if he was 

scared at that point. He responded, “I was, but it was one of them situations 

where, you know, I was tired of running and stuff like that. So, you know, it’s 

here or there or now. It’s like, you know, I’ve been trying to dodge this 

situation for so long it’s like, you know.” 

Defendant testified, “I approached the vehicle, and by the time I got to 

the driver’s side, the door came open and from my knowledge I seen a little 

flash, like silver, off the thing and as” Sims “got out [of] the car, I pulled out 

and I shot him.” Defense counsel asked whether he saw a gun on Sims. 

Defendant answered, “I don’t think so. I got the flashing, light. I thought it 

was the hammer because . . . when you got a little hammer like the chrome 
10

off the reflection, so I’m knowing he used to carry one. So my instincts 

already kicked in that he had a hammer on him, and I just shot him.”7 It 

happened fast. Defendant denied shooting Ward. 

Defendant testified he had seen people get shot and killed four or five 

times in the Campbell Village area and this contributed to his fear. He 

testified that he thought Sims was going to kill him, and he shot Sims 

because he feared for his life. Defendant denied shooting Sims while Sims 

was on the ground; he said he shot him while he was standing up. 

After shooting Sims, defendant started to walk away, and he heard 

more gunshots. Defendant testified he turned around and saw his friend

Saucey. He heard one shot. 

Defendant and Saucey got into Dominique’s blue car, and she drove 

them away from the scene. In the car, Saucey told defendant that he had 

shot Sims and Ward. Defendant testified it “wasn’t my motive to even kill 

anybody even though I heard the threat.” He gave Saucey his gun to get rid 

of. 

Defendant admitted that he and his cousin committed the charged 

robbery a few days later. At the end of January, he left California by train

and ended up in Florida. Defendant testified he left because of “a bunch of

rumors going on and my baby mama got shot at, so I wasn’t trying to get any 

more people involved . . . .” 

In cross-examination, defendant acknowledged that the Campbell 

Village area was violent and that Campbell Village (the gang) was “beefing” 

with rival gang Acorn when his friend Boodie was killed by Acorn. Defendant 

7 In cross-examination, defendant testified that when Sims “came out 

[of] the van and his shirt pulled, I thought that was a gun because it glanced 

off the light, and I pulled up and shot.” 
11

denied that he and Little Tony were fighting over control of the Campbell 

Village gang. Defendant testified that his disagreement with Tony was not 

about who should be the leader of the gang, “It was over people that didn’t 

take care of [Tony] while he was in jail.” Defendant testified that Ward and 

Sims let him know they were planning to rob Tom, and he told them, “no, 

that’s family.” When they robbed him anyway, defendant was angry, but he 

testified, “I didn’t take no actions on it.” 

Closing Arguments and Jury Verdict

The prosecutor argued defendant was “in a beef over territory” and 

killed the victims because they defied him. He told the jury there were nine 

shots and two shooters, defendant was one of the perpetrators, and he aided 

and abetted the second person in committing the murders. The prosecutor

argued the mode of attack, the multiple shots in the back, and the positions 

of the victims showed what defendant was thinking, and he was guilty of two 

first degree murders. 

The defense theory was that defendant fired only one shot at Sims with 

a handgun, and someone else with an assault rifle later fired a volley of shots 

killing Ward (and hitting Sims, too). Defense counsel urged that what 

defendant did was “not a crime, because he thought his life was threatened

and he described . . . the behavior of Mr. Sims when he opened the door and 

he saw there was a gun and he then fired. ” He argued, “shooting once in a 

situation like this where [defendant] found he was going to be killed . . . is no 

more force than was reasonably necessary.” 
12

DISCUSSION

A. Jury Instruction on Self-Defense

1. Instruction Given

The trial court instructed the jury with CALCRIM No. 505 on 

justifiable homicide—self-defense as follows: “The defendant is not guilty of 

murder if he was justified in killing someone in self-defense. The defendant 

acted in lawful self-defense if:

“1. The defendant reasonably believed that he was in imminent danger 

of being killed or suffering great bodily injury.

“2. The defendant reasonably believed that the immediate use of deadly 

force was necessary to defend against that danger. [¶] AND

“3. The defendant used no more force than was reasonably necessary to 

defend against that danger.

“Belief in future harm is not sufficient, no matter how great or how 

likely the harm is believed to be. The defendant must have believed there 

was imminent danger of death or great bodily injury to himself. Defendant’s 

belief must have been reasonable and he must have acted only because of that 

belief. The defendant is only entitled to use that amount of force that a 

reasonable person would believe is necessary in the same situation. If the 

defendant used more force than was reasonable, the killing was not 

justified.”

8 (Italics added.) 

8 The instruction continued: “When deciding whether the defendant’s 

beliefs were reasonable, consider all the circumstances as they were known to 

and appeared to the defendant and consider what a reasonable person in a 

similar situation with similar knowledge would have believed. If the 

defendant[’]s beliefs were reasonable, the danger does not need to have 

actually existed.
13

2. Preservation of Claim

Defendant contends the language of the instruction that “he must have 

acted only because of that belief” was erroneous. (Italics added.) He argues 

the law of self-defense requires a defendant not act in a spirit of revenge, but 

there is no requirement that the defendant act only because of fear. Defense 

counsel did not raise this claim at trial, and defendant argues that if his 

appellate claim is forfeited, then he received ineffective assistance of counsel. 

“[A] trial court in a criminal case is required—with or without a 

request—to give correct jury instructions on the general principles of law 

relevant to issues raised by the evidence.” (People v. Mutuma (2006) 144 

Cal.App.4th 635, 640.) We will consider defendant’s claim of instructional 

“The defendant[’]s belief that he was threatened may be reasonable 

even if he relied on information that was not true. However, the defendant 

must actually and reasonably have believed that the information was true.

“If you find that Marcus Sims and Donald Ward threatened or harmed 

the defendant or others in the past, you may consider that information in 

deciding whether the defendant[’]s conduct and beliefs were reasonable.

“If you find that the defendant knew that Marcus Sims and Donald 

Ward had threatened or harmed others in the past, you may consider that 

information in deciding whether the defendant[’]s conduct and beliefs were 

reasonable.

“Someone who has been threatened or harmed by a person in the past 

is justified in acting more quickly or taking greater self-defense measures 

against that person.

“If you find that the defendant received a threat from someone else that 

he reasonably associated with Marcus Sims and Donald Ward, you may 

consider that threat in deciding whether the defendant was justified in acting 

in self-defense.

“The People have the burden of proving beyond a reasonable doubt that 

the killing was not justified. If the People have not met this burden, you 

must find the defendant not guilty of murder.” 
14

error despite his failure to raise the issue at trial. (See People v. Palmer

(2005) 133 Cal.App.4th 1141, 1156 [“a defendant need not object to preserve a 

challenge to an instruction that incorrectly states the law and affects his or 

her substantial rights].) 

3. Analysis

The instruction given in this case, a version of CALCRIM No. 505, is 

based on section 198, which provides, “A bare fear of the commission of any of 

the offenses mentioned in subdivisions 2 and 3 of Section 197, to prevent 

which homicide may be lawfully committed, is not sufficient to justify it. But 

the circumstances must be sufficient to excite the fears of a reasonable 

person, and the party killing must have acted under the influence of such 

fears alone.” (Italics added.)9

As defendant acknowledges, challenges like his to self-defense 

instructions are regularly made and rejected. In People v. Shade (1986) 185 

Cal.App.3d 711 (Shade), for example, the jury was instructed with CALJIC 

No. 5.12 that “a killing is justified (1) if the circumstances are sufficient to 

excite the fears of a reasonable person that there is imminent danger of death 

9 Section 197, subdivisions (2) and (3), in turn, provide that homicide is 

justifiable “(2) When committed in defense of habitation, property, or person, 

against one who manifestly intends or endeavors, by violence or surprise, to 

commit a felony, or against one who manifestly intends and endeavors, in a 

violent, riotous, or tumultuous manner, to enter the habitation of another for 

the purpose of offering violence to any person therein” and “(3) When 

committed in the lawful defense of such person, or of a spouse, parent, child, 

master, mistress, or servant of such person, when there is reasonable ground 

to apprehend a design to commit a felony or to do some great bodily injury, 

and imminent danger of such design being accomplished; but such person, or 

the person in whose behalf the defense was made, if he or she was the 

assailant or engaged in mutual combat, must really and in good faith have 

endeavored to decline any further struggle before the homicide was 

committed.” 
15

or great bodily injury, and (2) the party killing acted under the influence of 

such fears alone.” (Id. at p. 716, italics added.) The defendant argued the 

instruction was incorrect “because it tells the jury self-defense is not 

available when a person does not act out of fear alone, but out of fear and a 

desire to harm the attacker.” The Court of Appeal rejected the defendant’s 

argument as meritless because “Penal Code section 198 specifically states 

‘the circumstances must be sufficient to excite the fears of a reasonable 

person, and the party killing must have acted under the influence of such 

fears alone.’ ” (Ibid.)

In People v. Trevino (1988) 200 Cal.App.3d 874, 877 (Trevino) the 

defendant similarly challenged CALJIC No. 5.12. He argued there was 

evidence in his case “from which the jury could have concluded that he acted 

both out of a reasonable fear, and also out of ill will toward [the victim]. He 

argue[d] that where the danger is real, not imagined, and imminent, not 

inchoate, his actions need not be motivated by fear alone. . . . He contend[ed]

that there was evidence from which the jury could have found that the 

danger was real and not merely apparent or inchoate and that his fear was 

reasonable, yet could have determined that [he] did not act under the 

influence of fear alone.” (Id. at p. 877.) 

The Court of Appeal rejected the argument. “We find the law to be 

settled that ‘[t]o be exculpated on a theory of self-defense one must have an 

honest and reasonable belief in the need to defend. [Citations.] A bare fear 

is not enough; “the circumstances must be sufficient to excite the fears of a 

reasonable person, and the party killing must have acted under the influence 

of such fears alone.” (Pen. Code, § 198.)’ [Citations.] Hence, an instruction 

which states that the party killing must act under the influence of such fears 
16

alone, is a correct statement of the law.” (Trevino, supra, 200 Cal.App.3d at 

pp. 878–879.)

The Trevino court went on to explain: “[W]e do not mean to imply that 

a person who feels anger or even hatred toward the person killed, may never 

justifiably use deadly force in self-defense. . . . [¶] . . . [I]t would be 

unreasonable to require an absence of any feeling other than fear, before the 

homicide could be considered justifiable. Such a requirement is not a part of 

the law, nor is it a part of CALJIC No. 5.12. Instead, the law requires that 

the party killing act out of fear alone. . . . The party killing is not precluded 

from feeling anger or other emotions save and except fear; however, those 

other emotions cannot be causal factors in his decision to use deadly force. If 

they are, the homicide cannot be justified on a theory of self-defense. But if 

the only causation of the killing was the reasonable fear that there was 

imminent danger of death or great bodily injury, then the use of deadly force 

in self-defense is proper, regardless of what other emotions the party who 

kills may have been feeling, but not acting upon.” (Trevino, supra, 200 

Cal.App.3d at p. 879.)

Our Supreme Court quoted Trevino with approval in People v. Nguyen

(2015) 61 Cal.4th 1015 (Nguyen). There, the defendant shot and killed a rival 

gang member who, carrying a gun, approached the car the defendant was 

driving. (Id. at p. 1043.) The defendant contended that the evidence 

established self-defense as a matter of law. (Id. at p. 1042.) In rejecting the 

defendant’s claim, the court observed: “Trevino clarified that this rule

[referring to section 198’s requirement that a defendant act on ‘such fears 

alone’] does not ‘imply that a person who feels anger or even hatred toward 

the person killed, may never justifiably use deadly force in self-defense.’ . . . 

‘The party killing is not precluded from feeling anger or other emotions save 
17

and except fear; however, those other emotions cannot be causal factors in his 

decision to use deadly force. If they are, the homicide cannot be justified on a 

theory of self-defense. . . .’ ” (Id. at p. 1045.) 

Defendant argues we should not rely on cases such as Nguyen, Trevino, 

and Shade because they do not address his specific claim, which is that 

section 198 does not mean what it says. His position is that, when section 

198 was enacted in 1872, the Legislature did not intend the language “the 

party killing must have acted under the influence of such fears alone” to 

mean that justifiable homicide requires the killer to have acted under the 

influence of fear alone. Rather, defendant posits, the Legislature intended 

the language to mean that a killing is justified so long as the killer “really

acted under the influence of those fears, and not in a spirit of revenge”

(quoting Stats. 1850, ch. 99, § 30, p. 232). He further argues, “aside from the 

pursuit-for-revenge scenario, the law require[s] no purity of motive.” 

We are not persuaded by defendant’s argument based on legislative 

intent. “When interpreting a statute our primary task is to determine the 

Legislature’s intent. [Citation.] In doing so we turn first to the statutory 

language, since the words the Legislature chose are the best indicators of its 

intent.” (Freedom Newspapers, Inc. v. Orange County Employees Retirement 

System (1993) 6 Cal.4th 821, 826.) “ ‘If the language is clear and 

unambiguous there is no need for construction, nor is it necessary to resort to 

indicia of the intent of the Legislature (in the case of a statute) . . . .’ ” 

(Delaney v. Superior Court (1990) 50 Cal.3d 785, 798.) 

Here, the language of section 198 that “the party killing must have 

acted under the influence of such fears alone” is sufficiently clear that we 

need not resort to indicia of the Legislature’s intent in 1872. We agree with 

Trevino’s interpretation of the law of self-defense. A person who kills may 
18

feel anger, hatred, jealousy, or other emotion toward the victim, but “those 

other emotions cannot be causal factors in [the] decision to use deadly force. 

If they are, the homicide cannot be justified on a theory of self-defense.” 

(Trevino, supra, 200 Cal.App.3d at p. 879, italics added.) We therefore find 

no error in the instruction on self-defense given in this case. 

4. Prejudice

Even assuming error in the instruction, we find the error harmless 

beyond a reasonable doubt. (See People v. Brooks (2017) 3 Cal.5th 1, 69–70 

[reviewing error in misdescription of an element of an offense under 

Chapman v. California (1967) 386 U.S. 18, 24].) 

We agree with the Attorney General that if, instead of being told,

“Defendant’s belief must have been reasonable and he must have acted only 

because of that belief,” the jury had been instructed, “Defendant’s belief must 

have been reasonable and he must have really acted under the influence of 

those fears, and not in a spirit of revenge,” the result would have been the 

same. The only evidence of motive other than fear presented in this case was 

revenge—revenge against Sims and Ward for robbing Tom and disobeying

defendant, or revenge against Little Tony for trying to have defendant killed. 

Defendant argues he was prejudiced because a juror who believed 

defendant and Dorsey may have believed defendant shot Sims in self-defense 

and convicted him of Ward’s murder as an accomplice, and “[t]hus, the double 

murder finding does not demonstrate the jury certainly would have convicted 

[defendant] of Sims’s murder regardless of the self defense instruction’s 

language regarding motive.” But the jury found true the enhancement 

allegation that he personally discharged a firearm causing great bodily injury 

or death to both victims. This means the jury found defendant shot more 

than once and shot both victims, and it did not believe defendant’s testimony 
19

that he shot only once and did not shoot at Ward. We “must ultimately look 

to the evidence considered by [the] defendant’s jury under the instructions 

given in assessing the prejudicial impact or harmless nature of the error.” 

(People v. Harris (1994) 9 Cal.4th 407, 428.) Here, given the witness 

testimony (that defendant had an assault rifle, that he ordered the victims 

out of the van and had them lie on the ground, that he called Sims a “fucking 

little bitch” before shooting him) and the physical evidence (the number of 

rifle casings, the nine gunshot wounds on the two victims, including many 

entrance wounds on the back), and the jury’s findings that defendant 

personally shot both victims, we conclude beyond a reasonable doubt that the 

result would not have been different had the jury been instructed self-defense 

required defendant to have “acted under the influence of those fears, and not 

in a spirit of revenge.” 

B. Fines and Fees Imposed Without a Finding of Ability to Pay

At sentencing in August 2020, the trial court ordered defendant to pay 

a restitution fine of $10,000, a theft fine of $10, a court operations fee of $160, 

and a criminal conviction fee of $120. Defendant did not object or request a 

determination of ability to pay. 

On appeal, defendant argues these fines and fees were erroneously 

imposed absent evidence he had the ability to pay them. He relies on People 

v. Dueñas (2019) 30 Cal.App.5th 1157, 1164 (Dueñas), which held, under the 

circumstances of the case, that due process required a hearing on the 

defendant’s ability to pay before the trial court could impose certain fees,

and/or People v. Aviles (2019) 39 Cal.App.5th 1055, 1060 (Aviles), which held 

“a constitutional challenge to the imposition of fines, fees, and assessments 

should be based on the excessive fines clause of the Eighth Amendment 

instead of the due process rationale utilized in Dueñas.”
20

Defendant was sentenced well after Dueñas and Aviles came out, but 

he did not argue to the trial court that he had no ability to pay the fines and 

fees imposed. Under these circumstances, his appellate claim is forfeited. 

(See People v. Trujillo (2015) 60 Cal.4th 850, 856, 859 [constitutional claim 

regarding ability to pay fees is subject to the forfeiture rule].)

Anticipating that his claim may have been forfeited, defendant next 

argues defense counsel’s failure to raise the issue of ability to pay at the 

sentencing hearing deprived him of effective assistance of counsel. 

“On direct appeal, a conviction will be reversed for ineffective 

assistance only if (1) the record affirmatively discloses counsel had no 

rational tactical purpose for the challenged act or omission, (2) counsel was 

asked for a reason and failed to provide one, or (3) there simply could be no 

satisfactory explanation. All other claims of ineffective assistance are more 

appropriately resolved in a habeas corpus proceeding.” (People v. Mai (2013) 

57 Cal.4th 986, 1009.) 

Here, the record is silent as to why defense counsel did not object to the 

imposition of fines and fees. Although defendant asserts the “chance [he] will 

be able to pay the imposed fines during his life term in prison is negligible,” 

the record does not foreclose the possibility that defense counsel had a sound 

reason for not raising the issue of ability to pay. Consequently, we cannot 

say defendant received ineffective assistance of counsel on direct appeal.

In sum, defendant forfeited his challenge to the trial court’s imposition 

of fines and fees based on inability to pay, and defendant has not established 

on direct appeal that defense counsel’s failure to raise the issue with the trial 

court was ineffective assistance of counsel. 
21

C. Additional Sentencing Issues

1. Unauthorized Sentence

The trial court sentenced defendant to 25 years to life for count 1 

(murder of Sims) plus a consecutive term of 25 years to life for the firearm 

enhancement (§ 12022.53, subd. (d)); a consecutive term of 25 years to life for 

count 2 (murder of Ward) plus a consecutive term of 25 years to life for the 

firearm enhancement; two years for count 3 (possession of firearm by felon) to 

run concurrent with counts 1 and 2; and two years for count 4 (second degree 

robbery) also to run concurrent with counts 1 and 2, for an aggregate 

indeterminate term of 100 years to life in prison. The court then sentenced 

defendant to life without the possibility of parole for the special circumstance 

of multiple murders (§ 190.2, subd. (a)(3)). 

As we have described, the jury found defendant guilty of two counts of 

first degree murder and found true the special circumstance that he was 

convicted of more than one murder within the meaning of section 190.2, 

subdivision (a)(3). 

Section 190.2, subdivision (a), provides in relevant part, “The penalty 

for a defendant who is found guilty of murder in the first degree is death or 

imprisonment in the state prison for life without the possibility of parole if 

one or more of the following special circumstances has been found . . . to be 

true:” “(3) The defendant, in this proceeding, has been convicted of more than 

one offense of murder in the first or second degree.”

Defendant argues—and the Attorney General concedes—that, because 

the prosecutor in this case did not seek the death penalty in this case, the 

only authorized punishment for defendant’s first degree murder convictions

under section 190.2’s multiple-offense special circumstance is a single term of

life without the possibility of parole. The parties agree that the imposition of 
22

additional terms of 25 years to life for counts 1 and 2 was unauthorized. We 

accept the Attorney General’s concession. Section 190, subdivision (a), 

specifies that first degree murder is to be punished by one of three options:

“[1] death, [2] imprisonment in the state prison for life without the possibility 

of parole, or [3] imprisonment in the state prison for a term of 25 years to 

life,” and “[t]he penalty to be applied shall be determined as provided in 

Sections 190.1, 190.2, 190.3, 190.4, and 190.5.” (Italics added.) In this case, 

section 190.2 applied and therefore life without the possibility of parole is the 

penalty; no additional penalty is authorized.

Accordingly, we vacate the sentence and remand for resentencing, 

where the trial court may reconsider the entire sentence. (See People v. 

Buycks (2018) 5 Cal.5th 857, 893 [“when part of a sentence is stricken on 

review, on remand for resentencing ‘a full resentencing as to all counts is 

appropriate, so the trial court can exercise its sentencing discretion in light of 

the changed circumstances’ ”].) 

2. Miscalculation of Presentence Custody Credits

The parties also agree that the trial court miscalculated defendant’s 

presentence custody credit. Defendant was taken into custody on April 2, 

2015, and was sentenced on August 17, 2020. This amounts to 1,965 days in 

presentence custody, but the trial court credited defendant with only 1,956

days. On remand, the trial court is instructed to recalculate defendant’s 

custody credit. 

DISPOSITION

The sentence is vacated and the matter is remanded to the trial court 

for a full resentencing in accordance with this opinion. The trial court is 

instructed to recalculate defendant’s presentence custody credit. The 

judgment is otherwise affirmed. 
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_________________________

Miller, J.

WE CONCUR:

_________________________

Stewart, Acting P.J.

_________________________

Mayfield, J.*

A161139, People v. Broussard

* Judge of the Mendocino Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.