Filed 4/17/23 P. v. Banuelos CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

MARIO MONTES BANUELOS,

Defendant and Appellant.

 D080919

 (Super. Ct. No. FMB00647-2)

APPEAL from a judgment of the Superior Court of San Bernardino 

County, Rodney A. Cortez, Judge. Affirmed.

James M. Crawford, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Charles C. Ragland, Assistant Attorney General, Melissa 

A. Mandel, Seth M. Friedman and Joseph C. Anagnos, Deputy Attorneys 

General, for Plaintiff and Respondent.
2

A jury found Mario Montes Banuelos guilty of two counts of first degree 

murder (Pen. Code, § 187, subd. (a))1 and one count of premeditated 

attempted murder (§§ 187, subd. (a), 664, subd. (a)). For the murder counts, 

the jury made true findings on special circumstances, including lying in wait 

(§ 190.2, subd. (a)(15)), and commission of murder during the course of a 

kidnapping (§ 190.2, subd. (a)(17)(B)). For all of the counts, it made true 

findings that Banuelos personally used a firearm in the commission of the 

offenses (§ 12022.5, subd. (a)). The trial court sentenced Banuelos to two 

terms of life without the possibility of parole, an indeterminate term of seven 

years to life, and a determinate term of 30 years. 

Banuelos contends: (1) the trial court erred in rejecting his objection 

that the prosecutor exercised peremptory challenges against prospective 

jurors in a discriminatory manner; (2) the jury instruction on conspiracy was 

erroneous; (3) the trial court was required to instruct, sua sponte, on (a) selfdefense and defense of another, (b) voluntary manslaughter under a theory of 

imperfect self-defense, and (c) involuntary manslaughter; (4) defense counsel 

was ineffective for not requesting the jury to be instructed with CALCRIM 

No. 522, that provocation can reduce first degree murder to second degree 

murder; and (5) insufficient evidence supports the verdict. We conclude that 

Banuelos’s arguments lack merit, and we accordingly affirm the judgment. 

I.

FACTUAL AND PROCEDURAL BACKGROUND

The murders and attempted murder at issue in this case were 

committed in April 1994, when three men were kidnapped, driven into the 

desert, shot multiple times, and then left for dead inside a vehicle. One of the 

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

Penal Code. 
3

victims survived despite multiple gunshot wounds to his back and his neck. 

His testimony provided the central evidence against Banuelos at trial. 

The surviving victim, T. Munoz, testified that in 1994 he was working 

as a driver for a man who sold methamphetamine, P. Cardenas. According to 

Munoz, Cardenas supplied methamphetamine to Banuelos’s brother, Noe. 

Munoz was personally acquainted with Noe and Banuelos because both of 

them were present at certain drug-sale transactions. In April 1994, Noe 

owed Cardenas between $60,000 and $90,000. 

On April 14, 1994, Noe contacted Munoz and Cardenas to tell them 

that he had the money to pay his debt. Munoz, Cardenas, and Munoz’s 

brother, J., drove a van to the house in Coachella where Banuelos and Noe 

lived. When Munoz and Cardenas knocked on the door, Noe opened it and 

told them to wait outside because he was going to change his clothes. While 

they waited in the van, Munoz saw two men drive up to the house and go 

inside. Noe then invited Munoz and Cardenas to come inside and have a seat

in the living room. J. waited in the van. Shortly thereafter, Noe pulled out a 

gun, pointed it at Munoz and Cardenas and told them not to move. As Munoz 

attempted to draw his own gun, Banuelos ran into the living room and hit 

Munoz in the face with the butt of a rifle. Munoz testified that he is certain 

the person who hit him with the rifle was Banuelos. 

Next, Noe, Banuelos, and the two men who had earlier entered the 

house proceeded to deliver multiple kicks and blows to both Cardenas and 

Munoz. After the blows stopped, Munoz’s arms were bound behind his back, 

and his eyes and his mouth were covered with tape. Munoz heard Banuelos 

state that there was someone else outside in the van, and Munoz’s brother, J.,

was brought inside. Cardenas and J. were bound and restrained in a similar 

manner to Munoz.
4

Munoz, Cardenas, and J. were then taken outside and placed into the 

back of the van. Inside the van, Munoz heard the voices of Banuelos, Noe,

and a third person whose voice he did not recognize. The van started moving 

and was underway for a considerable amount of time. During the drive, 

Munoz heard Banuelos tell someone to shoot. Munoz then felt a bullet 

hitting his back. A few minutes later he felt a second bullet hit his back and 

two bullets hit his left foot. He also heard two other shots that did not hit 

him. Likely because of the blood from Munoz’s wounds, the tape binding his 

hands became loose, and he was able to free his hands and then lower the 

tape covering his eyes. 

The van then entered a bumpy dirt road, and Munoz heard two more 

shots. Munoz also heard Banuelos saying that the bodies would be stinking 

when they were found, followed by laughter. From what he heard during the 

incident, Munoz believed that Banuelos was in charge because he was giving 

orders. 

After approximately 10 minutes on the dirt road, the van came to a 

stop, and Munoz heard another vehicle pull up behind the van. Munoz then 

felt a hand over his nose and mouth, attempting to suffocate him. A voice 

outside of the van said, “Let’s go.” Munoz then heard Noe question someone 

about why he hadn’t yet exited the van. Banuelos answered, “I’m suffocating 

him, but he won’t die.” Munoz was then shot two times in the back of his 

neck. He heard his assailants leave in the other vehicle, and he then lost 

consciousness. 

Munoz woke up some time later in the van and made his way to the 

driver’s seat, where he found the van’s keys in the ignition. Munoz was able 

to drive himself to a highway and was pulled over at approximately 2:00 a.m. 

on April 15, 1994, by a law enforcement officer. 
5

The officer who conducted the traffic stop found Munoz badly beaten 

and bloody. The dead bodies of Cardenas and J. were in the back of the van, 

with their hands still restrained and tape covering their eyes and mouths. 

They had both been shot once in the chest and once in the head.

At the scene, when the law enforcement officer asked Munoz who had 

hurt him, Munoz said and wrote down “Noe” and the name of the street in 

Coachella where Noe and Banuelos lived. 

While speaking with a detective in the hospital three days later, Munoz 

identified Banuelos’s first name, “Mario,” as one of the perpetrators. Munoz 

subsequently identified Banuelos in a photographic lineup. 

Warrants were issued for the arrest of both Banuelos and Noe, but they 

fled to Mexico immediately after the shootings. Noe was violently killed in 

Mexico in 2018. Banuelos was apprehended in 2019 at a border checkpoint 

between Mexico and Arizona. 

An information charged Banuelos with the murders of Cardenas and J.

(§ 187, subd. (a)), and the attempted murder of Munoz (§§ 187, subd. (a), 664, 

subd. (a)). The information also alleged special circumstances for the murder 

counts (§ 190.2, subds. (a)(3), (a)(15), (a)(17)(B)), alleged that the attempted 

murder was willful, deliberate and premeditated (§ 664, subd. (a)), and 

alleged that for each of the offenses, Banuelos personally used a firearm

(§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)). 

At trial, Munoz testified to the facts we have set forth above, 

specifically identifying Banuelos as one of the people who kidnapped and shot 

him, J., and Cardenas. Banuelos’s defense was based primarily on his own 

testimony and that of one of his sisters. Banuelos testified that he was not 

involved with drugs, but he suspected that Noe was. Banuelos explained that 

he was kidnapped by Munoz and two other men approximately two weeks 
6

prior to April 14, 1994, but was able to escape. According to Banuelos, the 

kidnappers asked him who he was and what his relation was to Noe. After 

the kidnapping, Noe told Banuelos he owed money to some people. 

According to Banuelos, on April 14, 1994, he and Noe were in their

living room when they heard a knock on the door. They looked outside and 

believed that the kidnappers had returned. Banuelos gathered up the women 

and children who lived in the house and told them to get into the bathroom. 

According to the testimony of both Banuelos and his sister, Banuelos stayed 

in the bathroom with the women and children while Noe dealt with the men 

who had knocked on the door. Banuelos and the others stayed in the 

bathroom until Noe told them it was safe to come out, stating “they will never 

bother us again.” Banuelos testified that he had no involvement in the 

kidnapping and shooting of Munoz, J., and Cardenas.

During closing argument, defense counsel argued that the jury should 

not believe Munoz’s testimony about what occurred, and that other than 

Munoz’s account, there was no evidence that Banuelos was involved in the 

shootings. 

The jury found Banuelos guilty on all three counts. It made a true 

finding on each of the special circumstances, including kidnapping and lying 

in wait, found that the attempted murder was willful, deliberate and 

premeditated, and found that Banuelos personally used a firearm in 

connection with each of the counts. 
7

II.

DISCUSSION

A. The Trial Court Did Not Err in Concluding That Defense Counsel 

Failed to Make a Prima Facie Case That the Prosecutor Exercised 

Peremptory Strikes of Jurors in a Discriminatory Manner

We first consider Banuelos’s contention that the trial court erred in 

denying his objection, during jury selection, that the prosecutor was 

exercising his peremptory challenges in a discriminatory manner. 

1. Applicable Legal Standards

We begin with the applicable legal standards. “Both the state and 

federal Constitutions prohibit the use of peremptory strikes to remove 

prospective jurors on the basis of group bias.” (People v. Scott (2015) 

61 Cal.4th 363, 383 (Scott).) “Excluding by peremptory challenge even ‘a 

single juror on the basis of race or ethnicity is an error of constitutional 

magnitude.’ ” (People v. Gutierrez (2017) 2 Cal.5th 1150, 1172.)

The “familiar Batson/Wheeler inquiry” governs a trial court’s 

evaluation of whether a party impermissibly exercised peremptory challenges 

in violation of the state and federal constitutions. (Scott, supra, 61 Cal.4th at 

p. 383, citing Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler

(1978) 22 Cal.3d 258.) That inquiry “consists of three distinct steps. First, 

the opponent of the strike must make out a prima facie case by showing that 

the totality of the relevant facts gives rise to an inference of discriminatory 

purpose in the exercise of peremptory challenges. Second, if the prima facie 

case has been made, the burden shifts to the proponent of the strike to 

explain adequately the basis for excusing the juror by offering permissible, 

nondiscriminatory justifications. Third, if the party has offered a 

nondiscriminatory reason, the trial court must decide whether the opponent 
8

of the strike has proved the ultimate question of purposeful discrimination.” 

(Scott, at p. 383.) Absent a prima facie showing, a prosecutor is not required 

to offer an explanation for the exercise of a peremptory challenge. (People v. 

Panah (2005) 35 Cal.4th 395, 442.) “ ‘[T]here “is a rebuttable presumption 

that a peremptory challenge is being exercised properly, and the burden is on 

the opposing party to demonstrate impermissible discrimination.” ’ ” (People 

v. Armstrong (2019) 6 Cal.5th 735, 766.)

Here, as we will explain, the trial court concluded its inquiry at the 

first step when it determined that defense counsel failed to make a prima 

facie case. “A prima facie case of racial discrimination in the use of 

peremptory challenges is established if the totality of the relevant facts 

‘ “gives rise to an inference of discriminatory purpose.” ’ ” (Scott, supra, 

61 Cal.4th at p. 384.) “ ‘[I]n the ordinary case . . . to make a prima facie case 

after the excusal of only one or two members of a group is very difficult.’ ” 

(People v. Clark (2016) 63 Cal.4th 522, 567 (Clark).) However, “[t]he ultimate 

issue is not whether there is a pattern of systematic exclusion, but instead 

‘ “ ‘whether a particular prospective juror has been challenged because of 

group bias.’ ” ’ ” (People v. Battle (2021) 11 Cal.5th 749, 773 (Battle).) 

In determining whether a prima facie case has been made, “[c]ertain 

types of evidence are especially relevant . . . , including whether the 

prosecutor has struck most or all of the members of the venire from an 

identified group, whether a party has used a disproportionate number of 

strikes against members of that group, whether the party has engaged 

prospective jurors of that group in only desultory voir dire, whether the 

defendant is a member of that group, and whether the victim is a member of 

the group in which the majority of the remaining jurors belong. [Citation.] 

We may also consider nondiscriminatory reasons for the challenged strikes 
9

that are ‘apparent from and “clearly established” in the record.’ [Citation.] 

Yet we may do so only when these reasons ‘necessarily dispel any inference of 

bias,’ such that ‘ “there is no longer any suspicion . . . of discrimination in 

those strikes.” ’ ” (Battle, supra, 11 Cal.5th at p. 773.)

“Review of a trial court’s denial of a Wheeler/Batson motion is 

deferential, examining only whether substantial evidence supports its 

conclusions.” (People v. Lenix (2008) 44 Cal.4th 602, 613.)

In his appellate briefing, Banuelos points out that, effective January 1, 

2021, the Legislature enacted Code of Civil Procedure section 231.7, which 

codifies the principle that “[a] party shall not use a peremptory challenge to 

remove a prospective juror on the basis of the prospective juror’s race, 

ethnicity, gender, gender identity, sexual orientation, national origin, or 

religious affiliation, or the perceived membership of the prospective juror in 

any of those groups.” (Code Civ. Proc., § 231.7, subd. (a); Stats. 2020, 

ch. 318.) Code of Civil Procedure section 231.7 details a specific procedure 

that a trial court must follow in considering a party’s objection to the 

discriminatory use of a peremptory challenge. That procedure differs from 

the familiar three-step framework described in our Supreme Court’s case law 

for considering constitutional challenges, which we have set forth above. 

(See, e.g., Scott, supra, 61 Cal.4th at p. 383.) Moreover, the newly-enacted 

statute provides that “[a] motion brought under this section shall also be 

deemed a sufficient presentation of claims asserting the discriminatory 

exclusion of jurors in violation of the United States and California 

Constitutions.” (Code Civ. Proc., § 231.7, subd. (d)(1).)

Under Code of Civil Procedure section 231.7, there is no requirement 

that the objector first make a prima facie case. Instead, the statute provides 

that “upon objection to the exercise of a peremptory challenge pursuant to 
10

this section, the party exercising the peremptory challenge shall state the 

reasons the peremptory challenge has been exercised. [¶] . . . The court shall 

evaluate the reasons given to justify the peremptory challenge in light of the 

totality of the circumstances.” (Code Civ. Proc., § 231.7, subds. (c), (d)(1).) 

The statute contains other provisions relevant to a trial court’s analysis, 

including a listing of 13 presumptively invalid reasons for the exercise of a 

peremptory challenge. (Id., § 231.7, subd. (e).) It also provides that “[t]he 

denial of an objection made under this section shall be reviewed by the 

appellate court de novo, with the trial court’s express factual findings 

reviewed for substantial evidence.” (Id., § 231.7, subd. (j).)

Banuelos argues that Code of Civil Procedure section 231.7 applies to 

his case based on the retroactivity principle set forth in In re Estrada (1965) 

63 Cal.2d 740. “ ‘The Estrada rule rests on an inference that, in the absence 

of contrary indications, a legislative body ordinarily intends for ameliorative 

changes to the criminal law to extend as broadly as possible, distinguishing 

only as necessary between sentences that are final and sentences that are 

not.’ ” (People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 308 (Lara), 

italics added.) Importantly, however, “[b]ecause the Estrada rule reflects a 

presumption about legislative intent, rather than a constitutional command, 

the Legislature . . . may choose to modify, limit, or entirely forbid the 

retroactive application of ameliorative criminal-law amendments if it so 

chooses. Thus, . . . the presumption does not govern when the statute at 

issue includes a ‘saving clause’ providing that the amendment should be 

applied only prospectively.” (People v. Conley (2016) 63 Cal.4th 646, 656.)

Here, without even reaching the question of whether Code of Civil 

Procedure section 231.7 effectuates “ameliorative changes to the criminal 

law” presumed to have retroactive application (Lara, supra, 4 Cal.5th at 
11

p. 308), we reject Banuelos’s contention that Code of Civil Procedure 

section 231.7 applies retroactively to his case because the Legislature clearly 

set forth a contrary indication. Subdivision (i) of the statute states, “This 

section applies in all jury trials in which jury selection begins on or after 

January 1, 2022.” (Code Civ. Proc., § 231.7, subd. (i).) Banuelos’s trial took 

place before that date, namely in April 2021.2 Thus, Code of Civil Procedure 

section 231.7 does not apply. (See People v. Collins (2021) 60 Cal.App.5th 

540, 550, fn. 6 [declining to rely on Code Civ. Proc., § 231.7 to decide the 

appeal, noting the statute specifies that it applies only to trials in which jury 

selection began on or after January 1, 2022].)

2. Relevant Trial Court Proceedings

2 In an October 3, 2022 letter, filed after the completion of the parties’ 

appellate briefing, counsel for Banuelos notified us of new authority that he 

views as applicable to the issue of whether Code of Civil Procedure section 

231.7 applies retroactively to this case. Specifically, counsel brings to our 

attention an amendment to section 745, effective January 1, 2023. 

Section 745 provides, among other things, that “[t]he state shall not seek or 

obtain a criminal conviction or seek, obtain, or impose a sentence on the basis 

of race, ethnicity, or national origin,” and it allows a defendant alleging a 

violation to file a motion in the trial court or to seek post-conviction relief. 

(§ 745, subds. (a), (b).) The amendment that counsel cites in his letter 

amended section 745, as of January 1, 2023, to state that it applies to all 

cases not yet final on appeal. (Id., subd. (j)(1).) However, counsel’s letter is 

puzzling because section 745 has nothing to do with the retroactive 

application of Code of Civil Procedure section 231.7 and does not pertain to 

the procedures for evaluating objections to the exercise of peremptory 

challenges. Moreover, even if section 745 was somehow relevant here, the 

amendment that counsel brings to our attention is not material because even 

under the former version of section 745 (effective from January 1, 2021 to 

December 31, 2022), the statute was prospectively applicable to cases, like 

Banuelos’s, “in which judgment has not been entered prior to January 1, 

2021.” (Former § 745, subd. (j).)
12

Having discussed the applicable legal principles, we next turn to the 

relevant trial court proceedings. During jury selection, defense counsel 

raised an objection, stating “I believe there is a pattern here of excluding nonwhite people, my client being Mexican.” Defense counsel specifically 

identified the prosecutor’s exclusion of (1) prospective juror No. 24, who was 

Hispanic; (2) prospective juror No. 37—a “young gentleman with the very 

long hair” whose race and ethnicity is not reflected in the record;3 and (3) a 

prospective juror, whose juror number was not identified, but whom defense 

counsel described as “the African American gentleman, our only African 

American gentleman.” Defense counsel stated, “I want to make a record of it 

because I think it is a pattern or at least showing itself as a pattern.” When 

asked whether he wished to reply, the prosecutor stated that he did not agree 

with defense counsel’s assertion but otherwise did not wish to reply unless 

the trial court determined that defense counsel made a prima facie showing. 

The trial court then overruled the objection, stating, “At this point, I 

don’t see that there is a prima facie showing [of] excusals based on race 

issues. I’m going to deny the motion . . . .” The trial court explained, “From 

what I have observed, I believe that we have a Hispanic woman that is 

currently sitting [i]n the box, and the ones that he excluded, honestly, based 

on their answers, I would have excluded, too, but it didn’t rise to the level [of] 

for cause. I know that [the prosecutor] did ask for one of them. I believe you 

3 Banuelos’s appellate brief states that prospective juror No. 37 was a 

“Hispanic juror.” However, nothing in the record supports that assertion. 

Appellate counsel’s description of prospective juror No. 37 is further suspect 

because Banuelos’s appellate briefing twice refers to prospective juror No. 37 

as female, although it is clear from comments made in the trial court that the 

prospective juror was a “young gentleman.”
13

[prosecutor] had asked for Number 24 to be excused for cause, but from the 

get-go, even on his questionnaire, he said he didn’t want to be here.”4 

With respect to prospective juror No. 24, the trial court was referring to 

the fact that on his questionnaire, he twice wrote “just don’t want to.” 

Specifically, he wrote that response to the following questions: (1) “Do you 

wish to be excused from jury service for any other reason?” and (2) “If you 

wish to have your jury service deferred for any reason (school, vacation, 

business trip), please indicate the reason and when you will next be available 

to serve.” 

On appeal, Banuelos argues that the trial court erred in determining 

that defense counsel did not make a prima facie case that the prosecutor 

acted with discriminatory intent.

As an initial matter we note that, at trial, defense counsel’s objection 

was that the prosecutor was challenging “non-white” jurors. As we have 

explained, the record reflects that one of the challenged jurors was Black and

one was Hispanic. The third juror’s race and ethnicity was not reflected in 

the record. The most we are able to glean from the record is that he was 

“non-white,” as defense counsel placed him in the group of “non-white” jurors 

challenged by the prosecutor.

In order to make a prima facie case in a Batson/Wheeler motion, 

defense counsel was required to identify a cognizable class that the 

prosecutor was targeting with his peremptory challenges. “Prospective jurors 

may not be excluded from jury service based solely on the presumption that 

they are biased because they are members of an identifiable group

4 The trial court was apparently mistaken about the prosecutor having 

challenged prospective juror No. 24 for cause, as the record does not reflect 

any such challenge. 
14

distinguished on racial, religious, ethnic, or similar grounds.” (People v. 

Gutierrez (2002) 28 Cal.4th 1083, 1122, italics added.) “Motions under

Wheeler and Batson protect against the systematic exclusion of distinctive 

and protected groups from the jury pool.” (People v. Armstrong (2019) 

6 Cal.5th 735, 768, italics added.) Thus, “the moving party[ ] has the burden 

of establishing the challenged jurors are members of a cognizable class.” 

(Ibid., italics added.) 

Defense counsel’s objection that the prosecutor had challenged “nonwhite” jurors was insufficient to create a prima facie case for a 

Batson/Wheeler motion because “non-white” persons is not a cognizable class. 

Specifically, our Supreme Court has expressly rejected the proposition that 

“people of color” or “minorities” are cognizable classes for purposes of a

Batson/Wheeler motion. (People v. Davis (2009) 46 Cal.4th 539, 583 [“No 

California case has ever recognized ‘people of color’ as a cognizable group.”]; 

People v. Manibusan (2013) 58 Cal.4th 40, 83 [“Both this court and others 

have declined to recognize ‘minority jurors’ as a cognizable group for purposes 

of a claim that the prosecution has excused a prospective juror for 

discriminatory reasons.”]; see also People v. Neuman (2009) 176 Cal.App.4th 

571, 579 [the trial court properly ruled “that ‘people of color’ is not a 

cognizable group”].) The category of “non-white” persons, which is simply 

another way of saying “people of color,” suffers from the same problem. (See 

United States v. Suttiswad (9th Cir. 1982) 696 F.2d 645, 649 [in the context of 

addressing the racial composition of grand juries, the court observed that the 

proposed category of “non-whites” is not a cognizable or distinctive group 

because it “would have no internal cohesion, nor would it be viewed as an 

identifiable class by the general population.”].)
15

On appeal, Banuelos ignores the fact that defense counsel objected to 

the removal of “non-white” jurors. Instead, he argues that defense counsel 

made a prima facie showing that the prosecutor made “subtle efforts . . . to 

remove Hispanic jurors,” and “was using peremptories selectively to exclude 

Hispanic jurors.” As we will explain, even assuming, without deciding, that 

the objection was sufficiently raised in the trial court to be cognizable on 

appeal, it lacks merit. 

As discussed, the record does not indicate the race or ethnicity of 

prospective juror No. 37. As the moving party in a Batson/Wheeler motion, it 

was Banuelos’s burden to make a record about the race of the relevant 

prospective jurors. (People v. Morris (2003) 107 Cal.App.4th 402, 408

[defendant could not demonstrate error when the record did not indicate the 

race of prospective jurors].) The only Hispanic juror shown by the record to 

have been peremptorily challenged by the prosecutor is prospective juror 

No. 24. To the extent Banuelos is attempting to point to a pattern of 

removing Hispanic jurors to create a prima facie case, the exercise of a 

peremptory challenge against a single prospective Hispanic juror certainly 

does not create a pattern. (Clark, supra, 63 Cal.4th at p. 567 [“ ‘[I]n the 

ordinary case . . . to make a prima facie case after the excusal of only one or 

two members of a group is very difficult.’ ”].) That is especially the case 

where, as here, another Hispanic juror remained on the jury panel.5 

Banuelos also attempts to establish a prima facie case of discriminatory 

removal of Hispanic jurors by pointing to the fact that the prosecutor asked 

5 The trial court specifically memorialized for the record that “[w]hen we 

were in chambers . . . the Court did reference a juror that the court believes 

that remained on the panel that was Hispanic, and I didn’t have the number 

with me at the time, that is juror in Seat 3, Number 44, JUROR NUMBER 

44.” 
16

prospective juror No. 24 whether he would rely on the interpreter’s 

translation for a Spanish-speaking witness, even if he disagreed with the 

translation. Banuelos’s brief asserts, in bold font, “Juror 24 was the only 

prospective juror to be asked such a question.” (Bolding omitted.) However, 

as the People point out, that representation is clearly wrong, as shown by 

even a cursory look at the reporter’s transcript. During voir dire, the 

prosecutor asked many other venire members the same question after they 

identified themselves as being able to speak Spanish, including one 

prospective juror who jokingly described himself as “the white guy who 

speaks Spanish.” The prosecutor also asked non-Spanish speaking venire 

members how they would react to having to rely on a translation. The 

prosecutor repeatedly explained to the prospective jurors exactly why he was 

asking them about the impact of experiencing witness testimony through an 

interpreter: the People’s main witness (i.e., Munoz), was expected to give 

extensive testimony, all of which would be in Spanish. Under the 

circumstances, there is nothing suspect about the prosecutor’s focus on that 

topic during voir dire. Thus, the questioning of prospective juror No. 24 

about how he would handle listening to translated Spanish-language 

testimony does not qualify as the type of “desultory voir dire” directed toward 

a certain group, which might raise an inference of discrimination. (Battle, 

supra, 11 Cal.5th at p. 773.) The record simply contains no support for 

Banuelos’s contention that the prosecutor’s questioning of venire members 

(including prospective juror No. 24) about their ability to rely on an 

interpreter’s translation raises an inference that prospective juror No. 24 was 

challenged because he is Hispanic. 

Further, our Supreme Court has explained that “where the record 

reveals ‘obvious race-neutral grounds for the prosecutor’s challenges to the 
17

prospective jurors in question,’ those reasons can definitively undermine any 

inference of discrimination that an appellate court might otherwise draw 

from viewing the statistical pattern of strikes in isolation. [Citations.] Put 

differently, when the record of a prospective juror’s voir dire or questionnaire 

on its face reveals a race-neutral characteristic that any reasonable 

prosecutor trying the case would logically avoid in a juror, the inference that 

the prosecutor was motivated by racial discrimination loses force.” (People v. 

Rhoades (2019) 8 Cal.5th 393, 431.) Here, the trial court expressly identified 

a race-neutral characteristic that any reasonable prosecutor would arguably 

want to avoid in a juror. Specifically, prospective juror No. 24 twice stated on 

his questionnaire that he “just [didn’t] want to” serve on the jury. For this 

reason, too, we conclude that substantial evidence supports the trial court’s 

conclusion that defense counsel failed to make a prima facie case that, in 

exercising a peremptory strike against prospective juror No. 24, the 

prosecutor acted for discriminatory reasons based on Hispanic ethnicity. 

B. There Was No Instructional Error as to the Requirement of Unanimity 

Regarding the Object of the Conspiracy

We next consider Banuelos’s challenge to the trial court’s instructing of 

the jury with CALCRIM No. 416, which instructs on how to determine 

whether Banuelos was a member of a conspiracy. “A claim of instructional 

error is reviewed de novo.” (People v. Mitchell (2019) 7 Cal.5th 561, 579

(Mitchell).)6

6 Defense counsel did not object to the jury instruction at issue here. In 

most circumstances, failure to object to an instruction results in the forfeiture 

of an appellate challenge. (Mitchell, supra, 7 Cal.5th at p. 579.) However, 

because failure to object to instructional error will not result in forfeiture if 

the substantial rights of the defendant are impacted (ibid.), we exercise our 

discretion to consider the appellate challenge.
18

At trial, one of the theories of criminal liability relied upon by the 

People was that Banuelos participated in a conspiracy to commit kidnapping 

and murder. Without objection from defense counsel, the trial court 

instructed with CALCRIM No. 416. In relevant part, the jury was instructed:

“The People have presented evidence of a conspiracy. A member 

of a conspiracy is criminally responsible for the acts or 

statements of any other member of the conspiracy done to help

accomplish the goal of the conspiracy.

“To prove that the defendant was a member of a conspiracy in 

this case, the People must prove that:

“1. The defendant intended to agree and did agree with [Noe]

or other two unidentified males to commit Kidnapping and 

Murder;

“2. At the time of the agreement, the defendant and one or 

more of the other alleged members of the conspiracy intended 

that one or more of them would commit Kidnapping and Murder;

“3. The defendant or [Noe] or the other two unidentified males 

committed at least one of the following overt acts to accomplish 

Kidnapping and Murder:

“a. Armed themselves with firearms

“b. Bound the victims,

“c. Put victims in van,

“d. Drove victims to remote location;

“AND

“4. At least one of these overt acts was committed in 

California.

[¶] . . . [¶]
19

“The People contend that the defendant conspired to commit one 

of the following crimes: Kidnapping and Murder. You may not 

find the defendant guilty under a conspiracy theory unless all of 

you agree that the People have proved that the defendant 

conspired to commit at least one of these crimes, and you all 

agree which crime he conspired to commit.” 

Banuelos takes issue with the final sentence set forth above. 

Specifically, he argues that instead of stating “You may not find the 

defendant guilty under a conspiracy theory unless all of you agree that the 

People have proved that the defendant conspired to commit at least one of 

these crimes, and you all agree which crime he conspired to commit,” the 

sentence should have stated, “You must not find the defendant guilty under a 

conspiracy theory unless all of you agree that the People have proved that the 

defendant conspired to commit at least one of these crimes, and you all agree 

which crime he conspired to commit.”7 

Focusing solely on the word “may” in the two-word phrase “may not,” 

Banuelos argues that “[t]he use of the word ‘may’ in a jury instruction is 

interpreted as permissive, not mandatory.” He argues, “The case law is clear 

that when an unanimity instruction is required, it is not an instruction to the 

jury about whether or not they may do something. It is mandatory that the 

jury unanimously agree on which crime the prosecution actually proved 

beyond a reasonable doubt. Providing the jury with a permissive unanimity 

jury instruction diluted the prosecution’s burden of proving the appellant 

7 The phrase “may not,” as used by the trial court here, is taken verbatim 

from CALCRIM No. 416 as approved by the Judicial Council. In contrast, as 

Banuelos points out, the Judicial Council chose to use the phrase “must not” 

in the general unanimity instructions set forth in CALCRIM Nos. 3500 and 

3501, both of which state “[y]ou must not find the defendant guilty unless

. . . .” (Italics added.)
20

committed either target crime or both because it allowed the jury to 

essentially disregard the unanimity instruction, given its erroneous

permissive language.” According to Banuelos, in light of the use of the word 

“may” in the instruction, the jury “could have divided on which target offense 

was intended” or could have “completely ignored” the “permissive” 

instruction. 

We reject the argument because it overlooks the plain commonsense 

meaning of the two-word phrase “may not.” Although the word “may” 

standing alone indicates that something is optional and permissive, the twoword phrase “may not,” as used in this context, indisputably has the same 

meaning as “must not.” As case law explains, “[g]enerally speaking, ‘the 

word “may” is permissive—you can do it if you want, but you aren’t being 

forced to.” (Woolls v. Superior Court (2005) 127 Cal.App.4th 197, 208.) 

However “ ‘[m]ay not’ is prohibitory, as opposed to permissive.” (Id. at 

p. 209.) Thus, telling the jurors that they “may not” find the defendant guilty 

unless they all agree, is the same thing as telling the jurors that they “must 

not” find the defendant guilty unless they all agree.8 We therefore find no 

merit to Banuelos’s argument that the jury instruction was erroneous 

because it used the phrase “may not” rather than “must not.”9

8 Indeed, as the People point out, the phrases “may not” and “must not” 

are so interchangeable that the reporter’s transcript reflects that the trial 

court used the phrase “must not” rather than “may not” when reading 

CALCRIM No. 416 to the jury. 

9 Banuelos also appears to argue that CALCRIM No. 416 is flawed 

because the unanimity instruction is placed at the end of the instruction and 

is “buried underneath all the other instructions.” We reject the argument, as 

“[j]urors are presumed able to understand and correlate instructions.” 

(People v. Sanchez (2001) 26 Cal.4th 834, 852.)
21

C. The Trial Court Did Not Err in Failing to Sua Sponte Instruct on the 

Theories of Self-Defense and Defense of Another

We next turn to Banuelos’s contention that the trial court erred in not 

sua sponte instructing on self-defense and defense of another. Banuelos 

argues, “[T]he jury could have rejected Banuelos’[s] testimony that he was in 

the [bathroom] and could have found he was involved in the confrontation 

that led to the underlying charges. Under these circumstances, instructions 

on self-defense and defense of others were warranted. . . . Although there 

had not yet been an actual physical attack, there was evidence the men [i.e., 

Cardenas, Munoz] were armed and prepared to kill over this drug debt when 

they entered the Banuelos’ home. As such, there was substantial evidence to 

have warranted the giving of instructions on self-defense and defense of 

others.”10 “ ‘[A] claim that a court failed to properly instruct on the 

applicable principles of law is reviewed de novo.’ ” (People v. Dearborne

(2019) 34 Cal.App.5th 250, 260.)

The requirements for self-defense and defense of another, in the context 

of a homicide trial, are set forth in CALCRIM No. 505, Justifiable Homicide: 

Self-Defense or Defense of Another. The requirements include: (1) the 

defendant reasonably believed that he or someone else was in imminent 

10 Banuelos also argues that even if he was in the bathroom the entire 

time, the theory of self-defense and defense of another also applies because 

“there was substantial evidence that Noe had killed Cardenas and [J.] and 

shot Munoz in an effort to protect Banuelos and the family who were hiding 

from these men in the bathroom.” The argument is nonsensical because if 

the jury believed that Banuelos was in the bathroom the entire time, there 

would be no need for him to rely on the theory of self-defense or defense of

another, as he would be acquitted on the ground that he was not involved in 

the crimes. 
22

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. (CALCRIM 

No. 505.) “To satisfy the imminence requirement, ‘[f]ear of future harm—no 

matter how great the fear and no matter how great the likelihood of the 

harm—will not suffice. The defendant’s fear must be of imminent danger to 

life or great bodily injury. “ ‘[T]he peril must appear to the defendant as 

immediate and present and not prospective or even in the near future. An 

imminent peril is one that, from appearances, must be instantly dealt 

with.’ ” ’ ” (People v. Trujeque (2015) 61 Cal.4th 227, 270 (Trujeque), italics 

omitted.)

“ ‘A trial court’s duty to instruct, sua sponte, on particular defenses 

arises “ ‘only if it appears that the defendant is relying on such a defense, or 

if there is substantial evidence supportive of such a defense and the defense 

is not inconsistent with the defendant’s theory of the case.’ ” ’ ” (People v. 

Martinez (2010) 47 Cal.4th 911, 953 (Martinez).) “[T]o require trial courts to 

ferret out all defenses that might possibly be shown by the evidence, even 

when inconsistent with the defendant’s theory at trial, would not only place 

an undue burden on the trial courts but would also create a potential of 

prejudice to the defendant.” (People v. Barton (1995) 12 Cal.4th 186, 197.) 

Both self-defense and defense of another fall under this rule. (See People v. 

Elize (1999) 71 Cal.App.4th 605, 615 [self-defense]; People v. Randle (2005) 

35 Cal.4th 987, 994 [self-defense and defense of another are “related 

concepts”].) Applying these principles, the trial court did not have a sua 

sponte duty to instruct on self-defense or defense of another. 
23

First, with respect to the theories of either self-defense or defense of 

another, sua sponte instructions were not required on the basis that the 

“ ‘ “ ‘defendant [was] relying on such a defense.’ ” ’ ” (Martinez, supra, 

47 Cal.4th at p. 953.) As we have explained, the theory of Banuelos’s defense 

was that he was not involved, to any extent, in the shootings, not that he 

committed the shootings in self-defense or defense of another. Specifically, 

Banuelos testified that he was in the bathroom during the entire incident. 

Similarly, defense counsel argued that, because Munoz’s testimony was not 

credible, the People failed to prove Banuelos was involved in the shootings.

Second, the trial court was not required to instruct on self-defense or 

defense of another because there was no “ ‘ “ ‘substantial evidence supportive 

of such a defense and the defense [was] . . . inconsistent with the defendant’s 

theory of the case.’ ” ’ ” (Martinez, supra, 47 Cal.4th at p. 953.) Substantial 

evidence was lacking because self-defense or defense of another are viable 

defenses only if the defendant perceived the danger posed by the victim to be 

imminent. (CALCRIM No. 505; Trujeque, supra, 61 Cal.4th at p. 270.) Here, 

assuming the jurors believed that Banuelos was involved in the shootings

rather than hiding in the bathroom, there would not be substantial evidence 

that Banuelos acted in self-defense or defense of another in shooting 

Cardenas, Munoz, and J. because, at the time they were shot, Cardenas, 

Munoz, and J. were tied up in the back of the van. Persons whose arms are 

bound behind them and have tape covering their eyes and mouths do not pose 

a danger that is “ ‘ “ ‘immediate and present and not prospective or even in 

the near future’ ” ’ ” and that “ ‘ “ ‘must be instantly dealt with.’ ” ’ ” 

(Trujeque, at p. 270, italics omitted.) Moreover, instructions on self-defense 

and defense of another would have been “ ‘ “ ‘inconsistent with [Banuelos’s]

theory of the case. ’ ” ’ ” (Martinez, at p. 953.) As we have explained, the 
24

defense theory was that Banuelos was not involved in the shootings. 

Therefore, it would be inconsistent for him to claim that he did commit the 

shootings but that he did so to defend himself or another person.

D. The Trial Court Did Not Err in Failing to Sua Sponte Instruct on the 

Lesser Included Offense of Voluntary Manslaughter Under a Theory of 

Imperfect Self-Defense

In a similar argument, Banuelos contends that the trial court should 

have sua sponte instructed that the jury had the option of returning verdicts 

of voluntary manslaughter (or attempted voluntary manslaughter for Munoz) 

based on the theory of imperfect self-defense. 

“An instance of imperfect self-defense occurs when a defendant acts in 

the actual but unreasonable belief that he or she is in imminent danger of 

great bodily injury or death. [Citation.] Imperfect self-defense differs from 

complete self-defense, which requires not only an honest but also a 

reasonable belief of the need to defend oneself. [Citation.] It is well 

established that imperfect self-defense is not an affirmative defense. 

[Citation.] It is instead a shorthand way of describing one form of voluntary 

manslaughter. [Citation.] Because imperfect self-defense reduces an 

intentional, unlawful killing from murder to voluntary manslaughter by 

negating the element of malice, this form of voluntary manslaughter is 

considered a lesser and necessarily included offense of murder.” (People v. 

Simon (2016) 1 Cal.5th 98, 132 (Simon).)

“A trial court has a sua sponte duty to instruct the jury on a lesser 

included uncharged offense if there is substantial evidence that would 

absolve the defendant from guilt of the greater, but not the lesser, offense. . . . 

Substantial evidence is evidence from which a jury could conclude beyond a 

reasonable doubt that the lesser offense was committed. . . . [¶] We review 
25

de novo a trial court’s decision not to give an imperfect self-defense 

instruction.” (Simon, supra, 1 Cal.5th at pp. 132-133.)

Like the doctrine of self-defense, which we have discussed above, 

imperfect self-defense is a viable theory only if the defendant had an 

“actual . . . belief that he or she is in imminent danger of great bodily injury 

or death.” (Simon, supra, 1 Cal.5th at p. 132, italics added; see also People v. 

Butler (2009) 46 Cal.4th 847, 868 [“self-defense . . . , whether perfect or 

imperfect, require[s] an actual fear of imminent harm”].) Here, as we have 

already explained with respect to the theory of self-defense, there was no 

substantial evidence presented at trial that Banuelos could have believed he 

was in imminent danger of great bodily injury while committing the 

shootings. The victims were all tied up and restrained in the back of the van 

and thus posed no immediate threat. Accordingly, the trial court had no sua 

sponte duty to instruct on the lesser included offense of voluntary 

manslaughter (or attempted voluntary manslaughter) under a theory of 

imperfect self-defense.

E. The Trial Court Did Not Err in Failing to Instruct on Involuntary 

Manslaughter

Banuelos next contends that the trial court should have instructed on 

the lesser included offense of involuntary manslaughter. 

Manslaughter is defined by statute as “the unlawful killing of a human 

being without malice.” (§ 192, italics added.) Involuntary manslaughter, in 

turn, is defined as an unlawful killing “in the commission of an unlawful act, 

not amounting to a felony; or in the commission of a lawful act which might 

produce death, in an unlawful manner, or without due caution and 

circumspection.” (Id., subd. (b).) As we have explained, a trial court must 

instruct on all lesser included offenses supported by substantial evidence. 

(Simon, supra, 1 Cal.5th at p. 132.)
26

Under the argument heading asserting that an involuntary 

manslaughter instruction was required, Banuelos argues, “The evidence was 

clear that although deadly force was used resulting in the death of two 

individuals, the evidence was murky as to whether that use of deadly force 

was done with premeditation and deliberation. . . . Given the fact that the 

evidence showed a real possibility of neither Noe nor [Banuelos] having any 

intent to kill but rather to defend themselves and each other, had the jury 

been instructed on the lesser included offense of involuntary manslaughter, it 

is very reasonably likely the jury would have found [Banuelos] did not act 

with the required malice aforethought necessary for first-degree murder. 

However, the jury was not instructed here.”11

Banuelos presents no coherent argument how any reasonable juror 

could have concluded, based on the evidence, that the shootings were 

committed without malice to support an instruction on involuntary 

manslaughter. (§ 192.) Malice can be either express or implied. (§ 188, subd. 

(a).) “Malice is express when there is manifested a deliberate intention to 

unlawfully take away the life of a fellow creature.” (Id., subd. (a)(1).) 

“[M]alice is implied when the killing resulted from an intentional act, the 

natural consequences of which are dangerous to human life, performed with 

knowledge of and conscious disregard for the danger to human life.” (People 

v. Thomas (2012) 53 Cal.4th 771, 814.) Here, the victims were shot at close 

range multiple times—in the torso, neck, and head—while they were tied up 

in the back of a van. Most reasonable jurors would conclude that repeatedly 

11 In the course of his argument, Banuelos also contends that “the jury 

was given an ‘all or nothing’ choice of acquitting Banuelos entirely or 

convicting him of first-degree murder.” That is plainly not true. The jurors 

were given the option of convicting Banuelos of second degree murder, but 

they chose not to do so. 
27

shooting someone at close range in the head, neck and torso indicates an 

intent to kill, constituting express malice. At a minimum, such a course of 

conduct indisputably poses a grave danger to human life constituting implied 

malice. (Thomas, at p. 815 [pointing a loaded gun at the victim’s head and 

threatening to shoot him “is highly dangerous and exhibits a conscious 

disregard for life.”].)12 We therefore reject Banuelos’s contention that the 

trial court was required, sua sponte, to instruct on the lesser included offense 

of involuntary manslaughter.

F. Banuelos Has Not Established That Defense Counsel Was Ineffective 

By Failing to Request an Instruction on Provocation

Banuelos argues that defense counsel was ineffective because he did 

not request that the jury be instructed with CALCRIM No. 522 that 

provocation may reduce first degree murder to second degree murder.13 

We begin with the instruction that Banuelos contends should have been 

requested by defense counsel. As relevant here, CALCRIM No. 522 provides:

“Provocation may reduce a murder from first degree to second degree . . . . 

The weight and significance of the provocation, if any, are for you to decide. 

[¶] If you conclude that the defendant committed murder but was provoked, 

12 In his reply brief, Banuelos takes a different approach, arguing that an 

instruction on involuntary manslaughter was warranted because the 

evidence permitted a finding that he acted in self-defense, defense of another, 

or imperfect self-defense. However, those theories either provide a complete 

defense (in the case of self-defense or defense of another) or serve to support a 

verdict of voluntary manslaughter (in the case of imperfect self-defense). 

(People v. Elmore (2014) 59 Cal.4th 121, 133-134.) Thus, they do not support 

an instruction on involuntary manslaughter.

13 Provocation that causes a defendant to act in the heat of passion can 

also serve to reduce murder to voluntary manslaughter (People v. Beltran

(2013) 56 Cal.4th 935, 942 (Beltran)), but Banuelos does not argue that 

counsel should have requested an instruction on that theory. 
28

consider the provocation in deciding whether the crime was first or second

degree murder.” As case law explains, “Second degree murder is an unlawful 

killing with malice, but without the elements of premeditation and 

deliberation which elevate the killing to first degree murder. . . . To reduce a 

murder to second degree murder, premeditation and deliberation may be 

negated by heat of passion arising from provocation. . . . If the provocation 

would not cause an average person to experience deadly passion but it 

precludes the defendant from subjectively deliberating or premeditating, the 

crime is second degree murder.” (People v. Hernandez (2010) 183 Cal.App.4th 

1327, 1332 (Hernandez), citations omitted.) “[A] subjective test applies to

provocation as a basis to reduce malice murder from the first to the second

degree: it inquires whether the defendant in fact committed the act because 

he was provoked.” (People v. Jones (2014) 223 Cal.App.4th 995, 1000.) An 

instruction that provocation may reduce first degree murder to second degree 

murder is a “pinpoint instruction that need not be given on the court’s own 

motion.” (People v. Rogers (2006) 39 Cal.4th 826, 880.)

We evaluate Banuelos’s ineffective assistance claim based on wellsettled standards. A criminal defendant is constitutionally entitled to 

effective assistance of counsel. (U.S. Const., 6th Amend.; Cal. Const., art. I, 

§ 15; Strickland v. Washington (1984) 466 U.S. 668, 684-686; People v. Doolin

(2009) 45 Cal.4th 390, 417.) To establish ineffective assistance, “the 

defendant must first show counsel’s performance was deficient, in that it fell 

below an objective standard of reasonableness under prevailing professional 

norms. Second, the defendant must show resulting prejudice, i.e., a 

reasonable probability that, but for counsel’s deficient performance, the 

outcome of the proceeding would have been different.” (People v. Mai (2013) 
29

57 Cal.4th 986, 1009 (Mai).) “It is defendant’s burden to demonstrate the 

inadequacy of trial counsel.” (People v. Lucas (1995) 12 Cal.4th 415, 436.)

“It is particularly difficult to prevail on an appellate claim of ineffective

assistance. 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.” (Mai, supra, 

57 Cal.4th at p. 1009.)

Here, Banuelos has failed to meet his burden on direct appeal to 

establish ineffective assistance because defense counsel could have had a 

rational tactical purpose for failing to request an instruction on provocation. 

Specifically, as we have explained, Banuelos’s defense was based on the 

theory that he was not involved in the shootings. An instruction that 

Banuelos acted with provocation in shooting the victims would have 

conflicted with Banuelos’s defense because it would have suggested to the 

jury that Banuelos was in fact a participant in the shootings. Under those 

circumstances, counsel could have made a rational tactical decision to forego 

the provocation instruction. (See People v. Wader (1993) 5 Cal.4th 610, 643 

[the court could not “say that defense counsel had no rational tactical purpose 

in not requesting an instruction on intoxication” when it “would have been 

inconsistent with defendant’s theory of the case”].)

G. Banuelos’s Challenge to the Sufficiency of the Evidence Lacks Merit

Banuelos’s final contention is that insufficient evidence supports his 

convictions on each of the three counts. The argument is premised on the 

theory that the only finding a reasonable juror could have made based on the 
30

evidence was that Banuelos acted in self-defense, defense of another, 

imperfect self-defense, or based on provocation. Specifically, Banuelos sets 

forth the following argument: “Here, no rational juror could have found proof 

beyond a reasonable doubt that [Banuelos] intended to kill Cardenas and [J.] 

unlawfully—that Noe did not shoot Cardenas and [J.] in the actual belief in 

the need for self-defense or in defense of the family, whether reasonable or 

not, nor in the heat of passion on adequate provocation. And no rational 

juror could have found proof beyond a reasonable doubt that [Banuelos] 

initiated a chain of events which proximately caused Cardenas’s and [J.’s] 

death. [¶] No rational juror could have found proof beyond a reasonable 

doubt that Noe did not act in self-defense or in defense of [Banuelos] and 

their sisters and children.” 

The entirety of Banuelos’s discussion of the evidence in support of his 

argument consists of the following: “Cardenas, Munoz and [J.] were the 

aggressors; they arrived at the Banuelos[’] [home] armed and intent on 

collecting a drug debt. As such, there was insufficient evidence to support 

murder convictions and an attempted murder conviction against [Banuelos]

. . . .” 

We reject the argument. Here, the evidence certainly did not compel

the conclusion that Banuelos acted in self-defense, defense of another, or 

imperfect self-defense. Indeed, as we have discussed above, there is no 

substantial evidence to support the theories of self-defense, defense of 

another, and imperfect self-defense because there was simply no imminent 

threat posed by the victims at the time they were shot. (§§ II.C, II.D, ante.) 

Further, to the extent Banuelos is arguing that a verdict of second degree 

murder or voluntary manslaughter was compelled by the evidence because he 

was provoked to shoot the victims (Hernandez, supra, 183 Cal.App.4th at 
31

p. 1332; Beltran, supra, 56 Cal.4th at p. 942), the record certainly does not 

support that argument. Munoz testified that the victims were ambushed in 

Banuelos’s living room without engaging in any provocatory conduct, and the 

jury was entitled to credit that testimony. 

DISPOSITION

The judgment is affirmed.

IRION, J.

WE CONCUR:

HUFFMAN, Acting P. J.

BUCHANAN, J.