1

Filed 4/15/21 P. v. Hernandez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

FERNANDO HERNANDEZ et al.,

Defendants and Appellants.

E072249

(Super.Ct.No. FSB17003026 & 

 FSB17003027)

OPINION

APPEAL from the Superior Court of San Bernardino County. Ronald M. 

Christianson, Judge. Affirmed.

Michael B. McPartland, under appointment by the Court of Appeal, for Defendant 

and Appellant, and Krista Hemming for Fernando Hernandez. 

William G. Holzer, under appointment by the Court of Appeal, for Defendant and 

Appellant, Adrian Rene Haro.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Michael P. Pulos, Seth Friedman 

and Joseph C. Anagnos, Deputy Attorneys General, for Plaintiff and Respondent.
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I. INTRODUCTION

On August 7, 2017, J.C. was shot following an altercation with several men. A 

jury convicted Fernando Hernandez (Hernandez) and Adrian Haro (Haro)1 of attempted 

murder arising out of this incident (Pen. Code,2 §§ 664, 187, subd. (a)). The jury also 

found true special allegations that defendants’ commission of the offense was willful, 

deliberate, and premeditated (§ 664, subd. (a)); a principal was armed with a firearm 

(§ 12022, subd. (a)(1)); and Hernandez personally used a firearm and personally and 

intentionally discharged a firearm in the commission of the offense (§ 12022.53, 

subds. (b), (c)).

Haro appeals, arguing (1) there was insufficient evidence to support his conviction 

for attempted murder, and (2) the trial court engaged in prejudicial error by failing to sua 

sponte instruct the jury on self-defense, defense of another, and imperfect self-defense. 

Hernandez also appeals, arguing only that he received ineffective assistance of counsel 

because his trial counsel failed to request a pinpoint instruction on provocation and failed 

to adequately argue provocation in his defense. We affirm the judgment.

1

 A third individual, Alexander Rivera (Rivera), was also charged and convicted 

of various offenses related to the incident, but he is not a party to this appeal.

2

 All future statutory references are to the Penal Code unless otherwise stated.
3

II. FACTS AND PROCEDURAL HISTORY

A. Facts and Charges

On August 7, 2017, law enforcement officers were called to respond to reports that 

a man had been shot. A responding police officer discovered J.C., who appeared to have 

sustained a leg wound, and who reported that he had been shot following an argument 

with two men. A witness to the shooting subsequently identified Hernandez and Haro as 

the men involved and further identified Hernandez as the shooter. 

In a first amended information, both Hernandez and Haro were charged with 

attempted murder (§§ 664, 187, subd. (a), count 1) and assault with a firearm (§ 245, 

subd. (a)(2), count 2). Additionally, the information alleged defendants’ actions were 

willful, deliberate, and premeditated (§ 664, subd. (a)), and that a principal was armed 

with a firearm in the commission of count 1 (§ 12022, subd. (a)(1)). The information 

further alleged Hernandez personally inflicted great bodily harm (§ 12022.7, subd. (a)),

as well as personally used, intentionally discharged, and caused great bodily harm 

through discharge of a firearm in the commission of the offenses (§ 12022.53, subds. (b)-

(d)).

B. Relevant Evidence at Trial

1. Testimony of J.C.

J.C. testified that in August 2017, he was homeless and living in an abandoned 

commercial building with three other people in the City of San Bernardino. In the 

afternoon of August 7, 2017, one of those individuals exited the abandoned building to 

urinate. Soon after, Haro, Hernandez, and Rivera approached the building; Hernandez 
4

kicked open the front door and yelled that someone needed to be disciplined for urinating 

outside. Hernandez was holding a “zip gun,” which J.C. described as a pipe with metal 

wires and a rubber band spring, assembled together in a way that resembled a ninemillimeter handgun.

3

 J.C. stated that the exchange was heated, and he attempted to speak 

to everyone to calm them down. During this encounter, Haro repeatedly stated: “Let’s 

do him.” According to J.C., Haro appeared to be attempting to incite Hernandez to shoot 

J.C. with the zip gun while making this statement. J.C. did not feel it was safe to attempt 

to exit the building because a third man had positioned himself near the back door, while 

Hernandez and Haro remained at the front door during this exchange. 

When the situation did not seem to de-escalate, J.C. pulled out a knife because he 

felt threatened. In response, Haro, Hernandez, and Rivera left. After about 10 to 15 

minutes, J.C. exited the building to retrieve clothes he had left drying on a fence outside. 

By this time, J.C. believed the argument with the three men was over. While retrieving 

his clothes, J.C. heard someone say, “ ‘I got you now,’ ” from behind him; he then turned 

around and saw Hernandez holding a shotgun. When J.C. attempted to run, Hernandez 

shot him. J.C. made his way back into the abandoned building, in pain and bleeding; but 

Hernandez followed him yelling, “Get out!” 

J.C. proceeded to exit the building and make his way to a nearby retail store where 

he knew there was a security guard with a gun. While attempting to get to the store, he 

3

 A police officer also explained to the jury that a “zip gun” is a term used to refer 

to a homemade gun that acts as an explosive device, which is usually some type of tube 

with a spring-loaded mechanism that fires a single bullet.
5

turned around several times and saw Haro and Rivera following him in a vehicle. J.C. 

stated that Haro and Rivera drove the vehicle close to him in the parking lot of the store, 

but he managed to get inside the store to ask for help.

J.C. admitted having prior convictions for giving false information to a police 

officer, willful discharge of a firearm, and false imprisonment. Additionally, on crossexamination, J.C. admitted he had no right to be living in the abandoned building at the 

time of the incident, and that he knew there were children living nearby.

2. Testimony of Witness R.N.

R.N. testified that on August 7, 2017, he was stopped at an intersection while 

driving his vehicle. He heard yelling on the street and observed Hernandez run toward a 

vacant commercial building and fire a short-barreled shotgun. He also observed Haro 

running about 10 feet behind Hernandez. After Hernandez fired his shotgun, R.N. 

observed both men return together to a residence located on the same street. R.N. called 

911 and reported he had witnessed two men shoot an African-American man in the leg 

outside an abandoned building before returning to a nearby residence; he also observed a 

vehicle leave the residence but could not identify who was inside the vehicle.

3. Testimony of Police Officer

An officer with the San Bernardino Police Department testified that on 

August 7, 2017, he was dispatched to a commercial retail store in response to reports of a 

shooting. He met J.C. outside the store and observed J.C. was bleeding from wounds 

caused by buckshot or birdshot. He proceeded to speak with J.C. while he summoned 

medical aid.
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The officer’s interview with J.C. was recorded through the officer’s body camera 

and played for the jury. J.C. reported that he was inside a vacant building with two 

women and another man when the man went outside to urinate. J.C. stated that following 

this incident, a Mexican man about 50 to 60 years old with a long beard and baseball hat 

kicked down the door to the building and pointed a zip gun at J.C. He recalled a second 

man accompanied the man holding the zip gun. In response, J.C. grabbed a knife and the 

men left. However, J.C. heard the man holding the zip gun state, “ ‘Wait here, 

motherfucker,’ ” as he was leaving. When the men left, J.C. exited the building to 

retrieve clothes he had left hanging outside. J.C. reported that while outside, he 

encountered the man who had been holding the zip gun; heard the man say, “ ‘You 

wanna play, motherfucker?’ ”; and was shot as he attempted to turn around and go back 

into the building.

The officer testified that he had an opportunity to view the video surveillance 

footage of the retail store where he first encountered J.C. The surveillance video depicted 

Haro and Rivera arriving at the retail store in a gray vehicle following J.C.’s arrival; Haro 

slipping an item under the back of his pants and under his tank top while exiting the 

vehicle; and both Haro and Rivera walking toward the entrance of the retail store before 

turning around and walking back toward the vehicle in which they had arrived.

The officer also had an opportunity to examine the area where the shooting 

occurred. He observed birdshot damage to the front door and surrounding wall of an 

abandoned commercial building, as well as to a pair of jeans hanging on a fence outside 

the building. No shotgun shells were recovered in the immediate area and, as a result, the 
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officer estimated any shotgun must have been discharged from approximately 20 to 30 

yards away from J.C.

The officer participated in a search of the nearby residence where Hernandez was 

arrested. Shotgun shells were discovered in a bedroom of the residence, and two 

handguns were found in a garage that had been converted into a living area. However, 

investigators did not find a shotgun or zip gun during this search.

4. Testimony of Sheriff’s Deputy

A deputy with the San Bernardino County Sheriff’s Department testified that on 

August 7, 2017, he was driving in his patrol car when he saw J.C. walking down a street 

with his hands pressed over a bleeding wound on his leg. The deputy also saw 

Hernandez, Haro, and a third man walking in the opposite direction toward a residence. 

Hernandez appeared to be carrying a firearm wrapped in white material, and Haro was 

walking next to him. The deputy attempted to turn his vehicle around to stop the men on 

the street, but he could not do so in time to prevent them from entering the residence. As 

a result, the deputy parked his vehicle next to the abandoned building to surveil the 

residence. During this time, he observed Haro and the third man leave the residence in a 

silver vehicle. The vehicle returned in approximately five minutes, and the deputy saw 

the two men return inside the residence. The deputy did not see Hernandez leave the 

residence.

5. Testimony of Police Detective

A detective with the San Bernardino Police Department testified that on the 

afternoon of August 7, 2017, he was called to a residence and arrived to find a police 
8

perimeter set up. He used a public address system to order the individuals within to exit 

the residence. In response, Hernandez exited the residence, followed by Haro and then 

several other individuals. He assisted with the collection of gunshot residue samples 

from Hernandez and Haro following their exit from the residence. He also assisted with 

an in-field identification with R.N., who identified Hernandez and Haro as the individuals 

referred to in R.N.’s 911 call, and who specifically identified Hernandez as the shooter.

6. Gunshot Residue Evidence

A criminalist who processed the gunshot residue samples collected from 

Hernandez and Haro found no gunshot residue from the samples taken from Haro’s 

hands, but he discovered gunshot residue from a sample taken from one of Hernandez’s 

hands. He explained that this suggested Hernandez was within 12 feet of a discharging 

firearm, but he also admitted that it was possible for someone to be near a discharging 

firearm and to have no residue on his person. He also stated that it was possible for 

gunshot residue to transfer from an individual to a surface by handling the object. 

7. Testimony of Defendant Haro

Haro testified in his own defense. He explained that he lived in a house with his 

wife, his five children, Hernandez, and Hernandez’s wife. Another man lived in a

converted garage on the property, and Mr. Hernandez’s brother lived in a recreational 

vehicle parked on the same property. On August 7, 2017, Haro, his wife, and his children

witnessed a man urinating outside a nearby abandoned, commercial building. Haro knew 

that people had been living in the abandoned building for the past month. In response, 
9

Haro, Rivera, and Hernandez’s brother4 walked over to the abandoned building. Haro 

saw that Hernandez’s brother was carrying a pipe with a cloth over it, but he believed the 

item under the cloth was only a pipe. 

When he entered the abandoned building, Haro recalled seeing J.C. and three other 

people who appeared to be smoking methamphetamine. He told the people inside the 

abandoned building that they needed to leave. However, when he noticed that J.C. was 

holding a machete and another man was holding a hammer, Haro began to back up. 

Hernandez’s brother stated, “ ‘I got something for you, motherfucker,’ ” and left, while 

Haro returned to his residence to retrieve a bat. 

As Haro made his way back to the abandoned building, Haro saw Hernandez’s 

brother run ahead; heard Hernandez’s brother cursing and shouting; saw Hernandez’s 

brother aim a pillow case at J.C.; and heard a loud bang. Haro claimed he did not know 

Hernandez’s brother had a gun until after it was discharged because it was hidden under a 

pillow case. He did not see what happened to J.C. and only saw Hernandez’s brother 

running around the abandoned building, cursing. A short time later, Haro saw J.C. make

his way toward a nearby retail store, and Haro and Rivera decided to follow him. Upon 

arriving at the retail store, Haro noticed J.C. had been shot in the leg, so they immediately 

returned home. When they returned home, Hernandez’s brother, as well as a car 

belonging to Hernandez’s brother, was gone. Haro never saw Hernandez’s brother again.

4

 Throughout his testimony, Haro maintained that it was Hernandez’s brother, and 

not Hernandez, who was involved in the incident, testifying that the two looked similar. 
10

8. Testimony of Hernandez and Family

Hernandez’s wife testified that on August 7, 2017, she was at home watching 

television with Hernandez when they heard an argument outside the home. They went 

outside, encountered Hernandez’s brother, and heard him say he had shot someone. She 

admitted that she did not initially inform police about Hernandez’s brother and contacted 

law enforcement only after Hernandez had been charged with a crime. 

One of Hernandez’s sons testified that Hernandez was disabled and could barely 

walk following a work-related injury and two automobile accidents. Hernandez testified 

on his own behalf and corroborated the testimony of his wife and son.

9. Testimony of Defendant Rivera

Rivera testified that on August 7, 2017, he was sleeping on the couch in the living 

room of his brother’s (Haro) home. Haro woke him up and asked him to tell the people 

in the abandoned building nearby that they needed to leave. They made their way 

together toward the abandoned building with Hernandez’s brother5 ahead of them. Haro 

told Rivera to stand outside the building in case a fight ensued, and Rivera remained 

outside about 10 to 15 feet away from the building, as Haro followed Hernandez’s 

brother inside. He heard arguing inside the building, which ended when he heard 

5

 Like Haro, Rivera maintained that it was Hernandez’s brother, and not 

Hernandez, who accompanied them during this incident.
11

Hernandez’s brother say, “ ‘Let’s go.’ ” As Hernandez’s brother exited the building, he 

handed Rivera a pipe,

6 which Rivera tossed to the side on their way back to Haro’s home. 

After they arrived back at the residence, Rivera observed Haro go into a bedroom. 

He also observed Hernandez’s brother leave the residence, return with a gun inside a 

pillow case, leave the residence again, and walk back toward the abandoned building. He 

then observed Haro follow Hernandez’s brother out the front door of the residence while

holding a baseball bat. He thought Hernandez’s brother intended simply to scare the 

people inside the abandoned building, not to shoot anyone. 

Rivera did not accompany Haro and Hernandez’s brother out of the house. From 

the window of the residence, Rivera observed Hernandez’s brother run toward the 

abandoned building and fire his gun. Eventually, Haro came back into the house 

followed by Hernandez’s brother. Rivera heard Hernandez’s brother state: “ ‘I shot him. 

I shot that motherfucker,’ ” before Hernandez’s brother stepped into a green car and 

drove away. Rivera and Haro then drove in a gray car toward the direction they believed 

J.C. had fled. They followed J.C. to a nearby retail store, parked their car, and followed 

J.C. inside the store. However, they left after confirming that J.C. had been shot in the 

leg.

C. Verdict and Sentencing

The jury returned a verdict finding Hernandez and Haro guilty on the attempted 

murder charge (§§ 664, 187, subd. (a), count 1) but not guilty on the charge of assault 

6

 Rivera also referred to the object as a “little pole” in other portions of his 

testimony.
12

with a firearm (§ 245, subd. (a)(2)). The jury also found true the allegations that 

defendants’ commission of the offense was willful, deliberate, and premeditated (§ 664, 

subd. (a)); and a principal was armed with a firearm in the commission of count 1 (§

12022, subd. (a)(1)). Finally, the jury returned a true finding that Hernandez personally 

used a firearm and personally and intentionally discharged a firearm in the commission of 

count 1 (§ 12022.53, subds. (b), (c)); but the jury found not true the allegations that 

Hernandez inflicted great bodily injury or inflicted great bodily injury through discharge 

of a firearm (§§ 12022.7, subd. (a), 12022.53, subd. (d)).

Hernandez was sentenced to 17 years in state prison, representing the midterm of 

seven years for the attempted murder conviction on count 1 and a consecutive term of 

10 years based on the true finding that defendant personally used a firearm in the 

commission of count 1 (§ 12022.53, subd. (b)).

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Haro was sentenced to eight years in state prison, representing the midterm of 

seven years for the attempted murder conviction on count 1 and a consecutive term of 

one year for the jury’s true finding that a principal was armed with a firearm in the 

commission of count 1.

7

 As to count 1, the trial court struck the enhancement for personal discharge of a 

firearm under section 12022.53, subdivision (c), and stayed the enhancement that a 

principal was armed with a firearm under section 12022, subdivision (a)(1).
13

III. DISCUSSION

A. Substantial Evidence Supports Haro’s Conviction for Attempted Murder

Haro was convicted of attempted murder under an aiding and abetting theory. On 

appeal, he contends there was insufficient evidence to support this conviction, arguing: 

(1) there was insufficient evidence to establish he had the requisite mental state necessary 

to be convicted as an aider and abettor, and (2) there was insufficient evidence to show he 

committed any acts that actually assisted in Hernandez’s shooting. We disagree.

1. General Legal Principles and Standard of Review

“ ‘Attempted murder requires the specific intent to kill and the commission of a 

direct but ineffectual act toward accomplishing the intended killing.’ . . . ‘Thus, to be 

guilty of attempted murder as an aider and abettor, a person must give aid 

or encouragement with knowledge of the direct perpetrator’s intent to kill and with 

the purpose of facilitating the direct perpetrator’s accomplishment of the intended 

killing—which means that the person guilty of attempted murder as an aider and abettor 

must intend to kill.’ ” (People v. Pettie (2017) 16 Cal.App.5th 23, 52.)

“ ‘On appeal[,] we review the whole record in the light most favorable to the 

judgment to determine whether it discloses substantial evidence—that is, evidence that is 

reasonable, credible, and of solid value—from which a reasonable trier of fact could find 

the defendant guilty beyond a reasonable doubt. [Citations.] The standard of review is 

the same in cases in which the People rely mainly on circumstantial evidence. [Citation.] 

“Although it is the duty of the jury to acquit a defendant if it finds that circumstantial 

evidence is susceptible of two interpretations, one of which suggests guilt and the other 
14

innocence [citations], it is the jury, not the appellate court which must be convinced of 

the defendant’s guilt beyond a reasonable doubt. ‘ “If the circumstances reasonably 

justify the trier of fact’s findings, the opinion of the reviewing court that the 

circumstances might also reasonably be reconciled with a contrary finding does not 

warrant a reversal of the judgment.” ’ ” ’ ” (People v. Cravens (2012) 53 Cal.4th 500, 

507-508.) “The conviction shall stand ‘unless it appears “that upon no hypothesis 

whatever is there sufficient substantial evidence to support [the conviction].” ’ ” (Id. at 

p. 508.)

2. Substantial Evidence Supports a Finding that Haro Had the Requisite Shared 

Intent To Be Convicted as an Aider and Abettor

“To be guilty of a crime as an aider and abettor . . . the person must give such aid 

or encouragement ‘with knowledge of the criminal purpose of the [direct] perpetrator and 

with an intent or purpose either of committing, or of encouraging or facilitating 

commission of,’ the crime in question. [Citations.] . . . Thus, to be guilty of attempted 

murder as an aider and abettor, a person . . . must intend to kill.” (People v. Lee (2003) 

31 Cal.4th 613, 623-624; see People v. Gonzalez (2012) 54 Cal.4th 643, 654, fn. 8.)

“ ‘[I]t is well settled that intent to kill or express malice, the mental state required 

to convict a defendant of attempted murder, may . . . be inferred from the defendant’s acts 

and the circumstances of the crime.’ ” (People v. Avila (2009) 46 Cal.4th 680, 701.) 

“ ‘Among the factors which may be considered in making the determination of aiding and 

abetting are: presence at the scene of the crime, companionship, and conduct before and 

after the offense.’ [Citation.] . . . ‘Evidence of a defendant’s state of mind is almost 
15

inevitably circumstantial, but circumstantial evidence is as sufficient as direct evidence to 

support a conviction.’ ” (People v. Nguyen (2015) 61 Cal.4th 1015, 1054-1055.)

Here, J.C. testified that during his initial encounter with Hernandez and Haro, 

Hernandez threatened the occupants of the abandoned building while holding a “zip 

gun”; that during this time Haro repeatedly told Hernandez, “Let’s just do him”; and that 

Haro appeared to be attempting to incite Hernandez into shooting J.C. with the zip gun. 

Clearly, if believed, this testimony serves as substantial evidence that Haro had the

specific intent to kill J.C. 

The fact that Hernandez did not immediately shoot J.C. upon Haro’s urging does 

not render Haro’s verbal statements irrelevant. Haro himself testified they left the 

abandoned building upon seeing J.C. brandish a machete and another man brandish a 

hammer; he and Hernandez returned home to retrieve additional weapons; and the two 

began to make their way back to the abandoned building with those weapons. This 

evidence gives rise to a reasonable inference that Haro maintained his previously 

expressed intent; but he was temporarily deterred by the fact that a zip gun was capable 

of firing only one shot, and there were at least two men inside the abandoned building 

with weapons. The fact that both Hernandez and Haro left, only to immediately return 

with additional weapons more lethal than the one weapon they had during the initial 

encounter, is also evidence from which the jury could reasonably infer that Haro’s 

previously expressed intent remained unchanged. Thus, the record here contains 

evidence of a credible and solid value from which the jury could conclude that Haro 

shared in any intent Hernandez may have had to kill J.C.
16

Haro argues that there was no direct testimony he knew Hernandez was carrying a 

shotgun during their return to the abandoned building and, as such, the evidence at best 

suggests he intended merely to confront J.C. or possibly assault J.C. However, “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 

instigates the perpetrator with the intent of encouraging or facilitating the commission of 

the crime.” (People v. Houston (2012) 54 Cal.4th 1186, 1224, italics added.) Thus, the 

necessary mental state requires that an aider and abettor has knowledge of and shares in 

the criminal purpose of the direct perpetrator. It does not require the aider and abettor to 

have precise knowledge of the exact means or methods, which the direct perpetrator may 

ultimately use to commit the crime. 

On this point, Haro testified that during the initial encounter, he was not holding 

any objects but returned home to retrieve a bat. Haro testified he did so specifically 

because J.C. had brandished a machete and another man held a hammer during the initial 

encounter. He acknowledged that, at the same time, the man with him was initially 

carrying something that looked like a pipe covered by cloth8 but had returned home to 

retrieve an item covered by a pillowcase. Given Haro’s own testimony that he retrieved a 

weapon in direct response to the fact that the men inside the abandoned building had 

weapons, it would have been reasonable for the jury to infer that Haro knew whatever 

item the man with him returned to retrieve was also in response to that fact. Further, the 

8

 Again, Haro testified it was Hernandez’s brother and not Hernandez.
17

jury could reasonably infer that since the man with Haro already held a zip gun during the 

initial encounter, whatever item he retrieved to continue the confrontation would be some 

kind of weapon more lethal than the zip gun or pipe he had previously held.

9

 The fact 

that Haro may not have known the specific weapon Hernandez held does not preclude the 

jury from reasonably concluding that Haro knew of the criminal purpose for which the 

weapon was intended to be used.

3. Substantial Evidence Supports a Finding that Haro Actively Encouraged and 

Assisted in the Shooting

Haro also argues there was no evidence that he engaged in words or deeds that 

actually assisted Hernandez in accomplishing the shooting. However, the record shows 

both Haro and Hernandez initially left the abandoned building to retrieve additional 

weapons after seeing J.C. brandish a machete and another man brandish a hammer. 

Based upon this testimony, it would have been reasonable for the jury to infer Hernandez 

and Haro were initially deterred for fear of being outnumbered or inadequately armed. 

Thus, Haro’s act of retrieving a bat and following Hernandez back to the abandoned 

building can be reasonably seen as encouraging and assisting Hernandez in the shooting 

because that act assured Hernandez he would not be outnumbered during a second 

encounter. Additionally, Haro’s prior statements exhorting Hernandez to “do him” 

9

 Indeed it would seem unlikely for jurors to believe that Haro assumed 

Hernandez returned home just to retrieve a pillow case or nonlethal item hidden under a 

pillow case in light of the fact that Haro admitted he returned home with the specific 

intent to arm himself with a weapon to further confront the men in the abandoned 

building.
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(referring to J.C.) remain relevant evidence in this analysis. The evidence demonstrates 

exactly what Haro encouraged Hernandez to do. Haro and Hernandez were not able to 

accomplish this during their initial encounter and, thus, they retrieved additional weapons 

and returned to the building. Accordingly, substantial evidence in the record supports a 

reasonable inference by the jury that Haro engaged in specific actions to encourage or 

assist Hernandez in the shooting. We, therefore, decline to reverse Haro’s conviction for 

attempted murder on this ground.

B. The Trial Court Did Not Err in Instructing the Jury

Haro also argues that the trial court erred in failing to instruct on self-defense and 

imperfect self-defense, or defense of another. We conclude the record does not contain 

substantial evidence to support giving such instructions and therefore find no error.

1. General Legal Principles and Standard of Review

“ ‘ “It is settled that in criminal cases, even in the absence of a request, the trial 

court must instruct on the general principles of law relevant to the issues raised by the 

evidence.”. . . That obligation has been held to include giving instructions on lesser 

included offenses when the evidence raises a question as to whether all of the elements of 

the charged offense were present [citation], but not when there is no evidence that the 

offense was less than that charged.’ ” (People v. Breverman (1998) 19 Cal.4th 142, 154.) 

“[A] trial court errs if it fails to instruct, sua sponte, on all theories of a lesser included 

offense which find substantial support in the evidence.” (Id. at p. 162.)

“[B]oth self-defense and defense of others, whether perfect or imperfect, require 

an actual fear of imminent harm.” (People v. Butler (2009) 46 Cal.4th 847, 868.) The 
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subjective element of each of these defenses is identical: the defendant must actually 

believe in the need to defend against imminent peril. (People v. Oropeza (2007) 

151 Cal.App.4th 73, 82 [“The subjective elements of self-defense and imperfect selfdefense are identical. Under each theory, the appellant must actually believe in the need 

to defend himself against imminent peril to life or great bodily injury.”]; People v. 

Trujeque (2015) 61 Cal.4th 227, 270-271 [Defense of others requires the trier of fact to 

“find an actual fear of an imminent harm.”].) We review de novo a trial court’s decision 

not to give such instructions. (People v. Simon (2016) 1 Cal.5th 98, 133.)

2. Application

Here, Haro has not identified any substantial evidence in the record suggesting 

that he subjectively believed he needed to defend himself or another from imminent peril,

which would support the giving of an instruction on either self-defense or defense of 

another, whether perfect or imperfect. Haro relies on the fact that J.C. was unlawfully 

occupying an abandoned building; one of J.C.’s associates allegedly urinated in public 

outside the building; and, during an initial encounter, J.C. brandished a machete as 

evidence that would support giving self-defense instructions. However, none of these 

arguments are persuasive.

The fact that J.C. was unlawfully occupying the abandoned building is not 

relevant. There was no evidence to suggest the abandoned building belonged to Haro, 

Hernandez, or any other person associated with Haro. Presumably, Haro equally had no 

right to be present on the property and, as such, there is no inference of any imminent 
20

threat posed to Haro or any person associated with him arising out of J.C.’s presence in 

the abandoned building. 

The fact that another person associated with J.C. may have urinated in public in 

view of Haro, Hernandez, their family members, or their children is equally irrelevant to 

a self-defense instruction. While Haro may have found such an act unseemly, urinating 

in public without more does not give rise to an inference that the individual poses a threat 

of imminent harm to anyone. Moreover, it was undisputed that J.C. was not the 

individual whom Haro witnessed urinating in public. Thus, this fact does not support any 

inference that J.C. posed any threat of harm to Haro or any other person.

Finally, the fact that J.C. brandished a machete is evidence that might support a 

finding that Haro held a subjective fear of imminent harm at the time of Haro’s initial 

encounter with J.C. However, it was undisputed that both Haro and Hernandez made 

their way back to their residence after this initial encounter, and there is no evidence that 

J.C. was holding any weapon when Hernandez and Haro returned to the abandoned 

building a second time. The fear necessary to support a self-defense or defense of 

another instruction must be of imminent harm and cannot be based upon past threats or 

past assaults. (People v. Battle (2011) 198 Cal.App.4th 50, 73.) Thus, such evidence 

would not support the giving of a self-defense or defense of another instruction in this 

case, since the subjective fear of imminent harm cannot be based purely upon a past 

threat. Absent substantial evidence in the record to support a finding that Haro acted out 

of fear of imminent harm to himself or another at the time of the shooting, there was no 
21

basis for the trial court to give an instruction on self-defense or defense of another, 

whether perfect or imperfect, and we find no error in this regard.

C. The Record Does Not Support Hernandez’s Claim of Ineffective Assistance 

On appeal, Hernandez contends that his conviction must be reversed because he 

received ineffective assistance of counsel. We disagree.

“ ‘ “In order to demonstrate ineffective assistance of counsel, a defendant must 

first show counsel’s performance was ‘deficient’ because his ‘representation fell below 

an objective standard of reasonableness . . . under prevailing professional norms.’ 

[Citations.] Second, he must also show prejudice flowing from counsel’s performance or 

lack thereof.” ’ ” (People v. Lucas (1995) 12 Cal.4th 415, 436.) Hernandez’s sole 

argument on appeal is that his trial counsel’s performance fell below an objective 

standard of reasonableness for failure to request a pinpoint instruction regarding

provocation10 and failure to sufficiently argue provocation as a potential defense. 

However, in evaluating whether trial counsel’s actions fell below an objective 

standard of reasonableness, we cannot ignore the context in which the alleged failure to 

act occurred. Here, it was abundantly clear that Hernandez’s trial counsel pursued a 

strategy of arguing mistaken identity as his primary defense. Indeed, multiple defense 

witnesses testified that it was Hernandez’s brother and not Hernandez who shot J.C. 

10

 “[A]n instruction on provocation for second degree murder is a pinpoint 

instruction that need not be given sua sponte by the trial court.” (People v. Hernandez

(2010) 183 Cal.App.4th 1327, 1333.) It is undisputed that Hernandez’s trial counsel did 

not object to the instructions as given regarding provocation and did not request any 

additional pinpoint instructions on this issue.
22

Having chosen to pursue a defense of mistaken identity, forcefully arguing other defenses 

such as provocation or self-defense—which require a defendant to harbor a subjective 

state of mind related to the circumstances of the crime—might have caused Hernandez’s 

counsel to lose credibility with the jury. We do not believe such a strategic decision to 

pursue one defense over another falls below an objective standard of reasonableness. 

We note that our colleagues in the Second District Court of Appeal addressed this 

very issue under almost identical circumstances in People v. Jones (2014) 

223 Cal.App.4th 995. There, the defendant argued he received ineffective assistance of 

counsel due to trial counsel’s failure to request a pinpoint jury instruction on provocation. 

(Id. at pp. 1001-1002.) Upon review of the record, the appellate court in that case noted: 

“[D]efense counsel had two possible theories to present: provocation and mistaken 

identity. It would have been difficult to present both while retaining credibility with the 

jury. [Defense counsel] chose the second, and presented evidence to support it as best he 

could. Given the evidence in the case, counsel cannot be faulted for not succeeding with 

what he had to work with, concentrating on the weaknesses and inconsistencies in the 

identification evidence.” (Id. at p. 1002) Accordingly, it concluded there was no error 

because defense counsel’s tactical choice to pursue the defense of mistaken identity over 

the defense of provocation did not fall below accepted standards of reasonableness under 

prevailing professional norms. (Id. at pp. 1002-1003.) 

The record in this case compels the same conclusion. The fact that Hernandez’s 

counsel chose to pursue a defense of mistaken identity at the time of trial over a 

seemingly inconsistent defense of provocation does not amount to representation falling 
23

below an objective standard of reasonableness. This is particularly true given the number 

of defense witnesses apparently willing to testify that Hernandez’s brother was the true 

perpetrator of the crime. The choice to pursue one defense instead of the other is not 

unreasonable, and we conclude Hernandez has failed to establish ineffective assistance 

warranting reversal.

IV. DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

FIELDS

J.

We concur:

MILLER

Acting P. J.

MENETREZ

J.