Filed 10/17/23 P. v. Pimentel CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

THE PEOPLE,

 Plaintiff and Respondent,

v.

MARCO ANTONIO PIMENTEL,

 Defendant and Appellant.

 G062759

 (Super. Ct. No. 16CR005361)

 O P I N I O N

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

Kawika Smith, Judge. Affirmed.

Robert L.S. Angres for Defendant and Appellant.

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

General, Charles C. Ragland, Assistant Attorney General, Arlene A. Sevidal, Randall D. 

Einhorn and Susan Elizabeth Miller, Deputy Attorneys General, for Plaintiff and 

Respondent.
2

INTRODUCTION

Appellant Marco Pimentel was convicted of second degree murder for 

shooting his wife, Deanna Medina. His identity as the shooter was not disputed. What 

was disputed was whether he had the requisite intent for first or second degree murder:

malice aforethought. 

Appellant asserted he could not remember anything about the shooting and 

did not intend to kill his wife. His expert testified that as a result of appellant’s traumatic 

childhood and his substance abuse, he was in a dissociative state at the time of the 

shooting and was, for intent purposes, unconscious. The expert also testified that, owing 

to his heavy substance abuse both as an adolescent and as an adult, appellant’s amnesia 

claim was credible and he was not faking it.

Appellant has identified two errors on appeal. First, he asserts the trial 

court gave prejudicially confusing and contradictory jury instructions regarding his expert 

witness. Second, he contends the court should have instructed the jury on the lesser 

included offense of involuntary manslaughter in the course of an assaultive felony. In his 

mind, the combined effect of these two errors prejudiced his constitutional rights to a fair 

trial, his third ground for reversal.

We affirm the judgment. The jury instructions were not contradictory. The 

jury was told it had to make its own evaluation of the truth of the percipient witnesses’

testimony; it could not assume the expert’s reliance on a witness’ statement meant it was 

true. This is neither confusing nor contradictory. As to an instruction on involuntary 

manslaughter in the course of an assaultive felony, the jury determined appellant shot his 

wife with implied malice after having been instructed on involuntary manslaughter 

caused by intoxication. Having done so, the jury could not have found appellant guilty of 

involuntary manslaughter of any kind. The error, if error it was, was harmless.
3

FACTS

Appellant testified that his usual routine at the beginning of each day was to 

wash down some prescription pills (for which he had no prescription) with a pint of 

vodka before getting out of bed. Then, depending on how he was feeling at the time, he 

would shoot some heroin. If he did not shoot heroin at that time, he would do so later in 

the day. Appellant also testified that Medina herself routinely used methamphetamines. 

Both also drank alcohol. When appellant and Medina were under the influence, they 

would physically and verbally abuse each other. 

Appellant shot Medina through the driver’s side window as she sat in their 

car outside the house of a family friend, Crystal Castaneda. The bullet went through her 

left arm and entered her chest, piercing her lungs and her heart. She died within minutes. 

Appellant’s role in causing Medina’s death is not disputed.

On the day of the shooting, March 16, 2016, appellant testified he followed 

his usual morning routine with vodka and pills. He could not remember whether or when

he shot heroin. He and Medina then set off to do some errands in their recently 

purchased Chevrolet Malibu. Initially he was driving, but Medina ordered him to turn off 

the road into a gas station because he was swerving. While at the gas station, Medina 

took the driver’s seat, and appellant went into the station to purchase some 40-ounce 

beers. 

That afternoon, appellant and Medina dropped in at the house of a friend, 

Jennifer Arcero, where appellant drank more vodka and had a margarita. He also drank 

“lean,” which is cough syrup with codeine. From Arcero’s house, Medina drove 

appellant to a court-mandated class, ironically a DUI class. When Medina and Arcero

picked him up after class, he was holding another bottle of vodka. At this point, Arcero 

testified, appellant was “very, very drunk.” 

Later that evening, appellant appeared alone at the house of another friend, 

Crystal Castaneda. Castaneda has a son with appellant’s cousin, Daniel Lopez, but the 
4

two of them do not live together. Appellant asked Castaneda whether she had some 

marijuana and displayed a revolver to her.1 Castaneda testified appellant was “really 

intoxicated, and goofy as he always was.” “[H]e was never like sober ever.” “You can 

tell by his demeanor, and how bloodshot red his eyes were that he was really gone.” She 

could smell alcohol on him, and she believed he was also under the influence of meth and 

heroin. He was “upbeat, happy, smiling.” When she walked him out of the house, she 

saw the Malibu parked in front of her garage, although she did not see Medina, who had 

remained in the car during the visit. Appellant then left the house. 

Castaneda testified that she heard a gunshot shortly after appellant left. A 

few minutes later, appellant returned and informed Castaneda that he had “shot that bitch 

in the face.” Castaneda understood him to mean Medina. He also said he had shot at the 

car and Medina had driven herself to the emergency room. Castaneda testified that 

appellant “looked shocked.” Castaneda could not see the Malibu when she looked out of 

her front door or from her driveway, and at first she did not believe appellant. Appellant 

left again, and Castaneda returned to her house. 

Castaneda then called Daniel Lopez and told him what appellant had said 

about shooting Medina. Her impression was that Daniel did not believe her, and she was 

likewise skeptical. 

Appellant returned to Castaneda’s house for the third time. At this point 

the car with Medina’s body in it had been discovered and reported, and there was 

considerable police activity down the street from Castaneda’s house. Castaneda told 

appellant Medina was dead in the car, but he acted as though he did not believe her. The

police presence eventually convinced Castaneda that appellant had shot Medina. 

1

Appellant testified that either he or Medina – sometimes both – carried guns whenever they left 

home. The guns belonged to his grandmother. 
5

Appellant gave Castaneda the bullets from his gun, at her request2and again left. 

Castaneda believed he was still intoxicated, although he appeared “calm.” 

Appellant returned to Castaneda’s house for a fourth time at around 

midnight or one in the morning, while the police were still processing the crime scene. 

He asked to stay the night, and she refused. She told him Medina was dead, and he 

responded he hadn’t done it. He was carrying grocery bags that appeared to Castaneda to 

be full of trash and asked for cigarettes. He asked to put the trash bags inside the house

but Castaneda told him to put them on the outside barbeque. She pushed some coins for 

cigarettes under the screen door. At that point, Castaneda did not want him to enter her 

house where her son was sleeping. She described appellant’s condition during the night 

of March 16 as “like out of his mind. Like, he didn’t know what was what. Like, he just 

seemed like he was lost.” 

Appellant asked Castaneda to call his grandmother Jeannie Pimentel. 

Appellant’s grandmother picked him up and drove him to the residence of his cousin, 

Daniel Lopez, the father of Castaneda’s son. 

By this time, Daniel had taken a telephone call from Castaneda, and he 

knew Medina was dead and the police were looking for appellant as the shooter. He 

testified that appellant was drunk and stank badly of alcohol; Daniel convinced him to 

take a shower. While appellant was in the shower, Daniel put his clothing in a trash bag 

and threw the bag into the rafters of the garage.

3

 He and appellant then took some pills

provided by appellant’s grandmother, lay down on the living room floor, and went to 

sleep. Police officers found them the next morning and arrested them both. 

2

At some point, Castaneda returned the bullets to appellant, but the record is unclear regarding 

when this happened. 

3 When police interviewed Daniel Lopez on the morning of March 17, the day after the shooting 

when both he and appellant were arrested, Daniel told the interviewing officer that appellant had put the clothing in 

the bag and thrown the bag onto the rafters. At trial, Daniel recanted this statement and insisted that he had done 

this without appellant’s knowledge. 
6

At trial, which got underway in September 2021, Castaneda testified twice 

about the night Medina was shot. Anna Lopez, appellant’s mother, testified about the 

domestic violence and substance abuse appellant witnessed while growing up. Sabrina 

Gomez, appellant’s sister, testified about the domestic violence she and appellant 

witnessed, their parents’ substance abuse, and the violence inflicted on him while he was 

a child. Appellant himself testified about his substance abuse, starting at age 11 or 12 

with alcohol and meth and graduating to daily use of heroin at the age of 14.4 His father, 

a heroin addict, had introduced him to heroin, and they would shoot up together. He also 

explained that he had moved out of his mother’s house at age 10 and lived with his 

grandmother Jeannie Pimentel who, he said, furnished him with alcohol and drugs. He 

said his grandmother and her husband also had a violent relationship.

Appellant claimed to have no memory of the relevant events of March 16, 

2016. The last thing he remembered, he testified, was drinking “lean” in the afternoon at 

Arcero’s house. The time after that was a blank until he found himself in the holding cell 

at Adelanto Detention Center, on the morning after the shooting. He did not even recall 

being interviewed by police after his arrest. 

At trial, appellant’s expert opined that the constant trauma of appellant’s 

upbringing caused him to dissociate in times of stress or rage. He would be capable of 

action, even violent action, while unaware of his surroundings. His assertion he had no 

memory of shooting Medina was credible, and the expert believed he was not faking loss 

of memory. The expert testified that he formed his opinion based on statements made by 

Castanada about appellant’s behavior during the night of the shooting, on the history of 

domestic violence and child abuse provided by appellant’s mother, Anna Lopez, and his 

4

As teenagers, appellant and Castaneda “used to hang out every day.” Appellant was, according to 

Castaneda “always drinking and smoking, and whatever else he’d do. When we used to hang out, that’s all we did.” 

‘[We] used to do meth, smoke weed, and drink . . . [¶] [a]ll the time.” 
7

sister Sabrina Gomez, and on appellant’s own statements during the expert’s interviews 

with him. 

Toward the end of trial, counsel and the trial court discussed jury 

instructions. One of the instructions discussed was CALCRIM No. 360.5 After reading 

the text of the instruction, the judge stated, “That appears to me to be appropriate. Do 

either of you have a thought?” The prosecutor responded, “Agreeable.” Defense counsel 

stated, “I think it’s appropriate.” The court and counsel then discussed the names that 

would be inserted in the space for the statements considered. Several names were 

suggested, and the court settled on seven names. 

The jury found appellant guilty of second degree murder, as well as of three 

handgun enhancements. It acquitted him of first degree murder. He was sentenced to an 

indeterminate prison term for the murder with no parole eligibility for 15 years and to an 

indeterminate term for a gun enhancement with no parole eligibility for 25 years. 

DISCUSSION

I. Jury Instructions

Appellant’s expert’s opinion had two aspects. First, the expert opined that, 

due to a childhood disfigured by domestic violence and child abuse, appellant was in a 

dissociative state when he shot Medina. Dissociation is, in the expert’s opinion, a mental 

defense mechanism that can be developed in childhood as a result of repeated trauma.

6

 It 

is a way for the victim to flee the scene of the trauma mentally, even while bodily 

present. An adult, even though no longer subject to abuse, may enter a dissociative state 

if something “triggers” memories of the childhood abuse and the coping mechanism used 

at the time. In this state, a person’s ability to form organized and rational thoughts and 

5

CALCRIM No. 360 states, “<Insert name> testified that in reaching (his/her) conclusions as an 

expert witness, (he/she) considered [a] statement[s] made by <insert name>. [I am referring only to the statement[s] 

<insert or describe statements admitted for this limited purpose>.] You may consider (that/those) statement[s] only 

to evaluate the expert’s opinion. Do not consider (that/those) statement[s] as proof that the information contained in 

the statement[s] is true.”

6

“[D]issociation is typically connected with that repetitive exposure to nonlethal violence.” 
8

his or her awareness of behavior are impaired. Heavy use of alcohol and drugs would 

likewise impair consciousness. 

The expert opined that appellant was in just such a dissociated state when 

he shot Medina. He was in a state of “impaired consciousness” and acting irrationally. 

The expert also opined that something Medina had said or done after appellant left 

Castaneda’s house for the first time triggered him so that he became dissociated and shot 

her.7 

The second aspect of the expert’s opinion rested on appellant’s use of drugs 

and alcohol, beginning in his childhood. Such abuse would also result in impaired 

consciousness. Furthermore, abuse of this kind could lead to blackouts, which appellant 

claimed he had frequently experienced. The expert opined that appellant’s claim he 

could not remember the shooting was genuine, as demonstrated by his repeated inquiries 

about Medina’s whereabouts after the incident and his repeated denials that he was 

responsible for her death. 

While conceding that appellant had shot Medina, defense counsel argued

extensively to the jury that appellant could not have formed the necessary intent for either 

first or second degree murder. Counsel based this argument in part on appellant’s 

extreme intoxication on the night of the shooting and in part of the expert’s testimony 

about appellant’s traumatic childhood. Counsel argued for a verdict of manslaughter 

instead. 

Aappellant now argues the court gave the jury confusing and contradictory 

instructions regarding how to evaluate the testimony of his expert. The court first 

instructed the jury, pursuant to CALCRIM No. 332, that “[a] witness was allowed to 

testify as an expert to give an opinion. You must consider the opinion, but . . . you are 

not required [to] accept it as true or correct. The experience [sic] and importance of any 

7

The expert referred to “reflexive outpouring of rage.” 
9

opinion are for you to decide.[

8

]

In . . . evaluating the believability of an expert witness, 

follow the instructions about the believability of witnesses generally. In addition, 

consider the expert’s knowledge, skill, experience, training and education, the reasons the 

experts [sic] gave for any opinion, and facts or information on which the expert relied on 

in reaching that opinion. [¶] You must decide whether information on which . . . the 

expert relied was true and accurate. You may disregard any opinion that you find 

unbelievable, unreasonable, or unsupported by the evidence.”

9

 Shortly thereafter,

pursuant to CALCRIM No. 360, the court instructed the jury that “[the expert] testified 

that in reaching his conclusions as an expert witness, he considered statements made by 

[appellant], Jeannie Pimentel, Anna Lopez, Joseph Lopez, Crystal Castaneda, Anna 

Marie Romo, and Sabrina Gomez.[

10]

 You may consider those statements only to evaluate 

the expert’s opinion. Do not consider those statements as proof that the information 

contained in the statements is true.”

“‘The appellate court may . . . review any instruction given, . . . even 

though no objection was made thereto in the lower court, if the substantial rights of the 

defendant were affected thereby.’ [Citations.] Instructional errors resulting in a 

miscarriage of justice violate the substantial rights of a defendant. [Citation.]” (People v. 

Hudson (2009) 175 Cal.App.4th 1025, 1028.) If the trial court’s instructions in this case

8

The written instruction that went into the jury room tracked CALCRIM No. 332 in stating that 

“[t]he meaning and importance of any opinion are for you to decide.” (Italics added.) 

9

CALCRIM No. 332 states, in pertinent part, “(A witness was/Witnesses were) allowed to testify as 

[an] expert[s] and to give [an] opinion[s]. You must consider the opinion[s], but you are not required to accept 

(it/them) as true or correct. The meaning and importance of any opinion are for you to decide. In evaluating the 

believability of an expert witness, follow the instructions about the believability of witnesses generally. In addition, 

consider the expert’s knowledge, skill, experience, training, and education, the reasons the expert gave for any 

opinion, and the facts or information on which the expert relied in reaching that opinion. You must decide whether 

information on which the expert relied was true and accurate. [¶] You may disregard any opinion that you find 

unbelievable, unreasonable, or unsupported by the evidence.”

Counsel and the court did not discuss CALCRIM No. 332 during the discussion of instructions in 

which CALCRIM No. 360 was approved. The court later included CALCRIM No. 332 in a list of instructions it 

intended to give. Neither counsel objected. 

10 Two of the names put forward during the discussion of jury instructions were not included in the 

final instruction. Joseph Lopez appeared in the final instruction, but this name did not figure in the discussion of 

jury instructions. 
10

confused the jury as to how to consider the expert’s opinion – the core of the defense –

then a miscarriage of justice would result. 

In People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), on which appellant’s 

analysis rests, the California Supreme Court addressed CALCRIM No. 332 and 

CALCRIM No. 360 in light of testimony from the prosecution’s gang expert. (Id. at p. 

671.) The detective testified he based his conclusion the defendant was a gang member 

on STEP notices, on his contacts with police while in the company of identified gang 

members, and on the fact the crime took place on gang turf.11 (Id. at p. 673.) The 

defendant argue the expert’s testimony regarding his past contacts with police was

testimonial hearsay and its admission violated his constitutional right to confront and

cross-examine witnesses. (Id. at p. 674.)

The court held that case-specific facts upon which an expert relies are 

hearsay, that is, out-of-court statements offered for their truth. If other competent proof 

of these case-specific facts has not been offered, then the jurors have no way of 

evaluating the facts for their truth, despite a jury instruction (CALCRIM No. 332) 

admonishing them to evaluate the information the expert relied on for its truth.

“The court also confusingly instructed the jury that the gang expert’s 

testimony concerning ‘the statements by the defendant, police reports, F.I. cards, STEP 

notices, and speaking to other officers or gang members’ should not be considered ‘proof 

that the information contained in those statements was true.’ [CALCRIM No. 360.] 

Jurors cannot logically follow these conflicting instructions. They cannot decide whether 

the information relied on by the expert ‘was true and accurate’ [CALCRIM No. 332]

without considering whether the specific evidence identified by the instruction, and upon 

which the expert based his opinion, was also true. ‘To admit basis testimony for the 

11 Police officers issue STEP notices in accordance with the California Street Terrorism Enforcement 

and Prevention Act, Penal Code sections 186.20 et seq. They also prepare field identification cards (F.I. cards)

recording an officer’s contact with an individual. (Sanchez, supra, 63 Cal.4th at p. 672.)
11

nonhearsay purpose of jury evaluation of the experts is . . . to ignore the reality that jury 

evaluation of the expert requires a direct assessment of the truth of the expert’s basis.’ 

[Citations.] [¶] Once we recognize that the jury must consider expert basis testimony for 

its truth in order to evaluate the expert’s opinion, hearsay and confrontation problems 

cannot be avoided by giving a limiting instruction that such testimony should not be 

considered for its truth. If an expert testifies to case-specific out-of-court statements to 

explain the bases for his opinion, those statements are necessarily considered by the jury 

for their truth, thus rendering them hearsay. Like any other hearsay evidence, it must be 

properly admitted through an applicable hearsay exception. [Fn. omitted.] Alternatively, 

the evidence can be admitted through an appropriate witness and the expert may assume 

its truth in a properly worded hypothetical question in the traditional manner.” (Sanchez, 

supra, 63 Cal.4th at p. 684.)

But there is a crucial difference between Sanchez and this case. In Sanchez, 

the gang expert relied for his opinion on case-specific out-of-court statements taken from 

the STEP notices and the F.I. cards, the authors of which did not testify. In this case, 

however, four of the seven people identified in CALCRIM No. 360 – appellant, his 

mother, his sister Sabrina Gomez, and Castaneda – did testify, and the case-specific facts 

to which they testified formed the bases of the expert’s opinion. Three of these witnesses 

were appellant’s own witnesses, thus obviating any concern about his right to crossexamination. The remaining witness, Castaneda, testified twice, once for the prosecution 

(subject to cross-examination) and once for appellant. The other three people listed in the 
12

jury instruction did not testify, and, contrary to the instruction given, the expert did not 

testify that he based any of his opinions on statements made by them.

12

 

Counsel and the trial court were very aware of Sanchez during trial, and the 

witness line-up was wisely structured accordingly.13 Witnesses upon whose statements 

the expert relied testified before he did and gave in-court testimony about the casespecific factual basis of his opinion that appellant was severely intoxicated and in a 

dissociative state when he shot Medina. Appellant himself testified in court about his 

substance abuse and his claim that he could not remember the events before, during, and 

after the shooting, so the jury had a first-hand opportunity to evaluate the truth of his 

memory loss.

CALCRIM No. 332 and CALCRIM No. 360 are not contradictory in this 

context. CALCRIM No. 332 instructs the jurors that they had to decide whether to 

believe the witnesses whose testimony, given in court, underlay the expert’s opinion. 

They had to decide whether this information was “true and accurate.” CALCRIM No. 

360 instructed the jurors that the fact that certain witnesses made statements to the expert 

was not proof that the statements were true. In other words, the jurors had to decide

independently (per CALCRIM No. 332) whether to believe appellant, his mother, his 

12 At the end of a long trial, some confusion is probably to be expected. The expert testified to 

statements made by appellant about Jeannie Pimentel, appellant’s grandmother, but he did not testify about any 

statements made to him by her concerning the sources of appellant’s dissociation or substance abuse. Jeannie 

Pimentel did not testify. Joseph Lopez is Daniel Lopez’s father and appellant’s uncle. Apparently the court and

counsel confused the two: Daniel testified; Joseph did not. The expert did not testify about any statements of casespecific facts made to him by Joseph. Finally, Anna Marie Romo’s full name was not mentioned in court at all 

during testimony. An alert juror might have picked out the name Anna Marie from the list of the children of Anna 

Lopez, appellant’s mother. But there was no testimony from the expert about statements made to him by Romo.

The expert testified that before trial he interviewed appellant, his mother, his sister Sabrina, his 

grandmother, and his father. He did not testify about any case-specific facts related to him by appellant’s father.

13 For example, at the motion in limine stage, defense counsel stated, “My understanding is that the 

People’s motion would be on Sanchez. Would be to make sure that proper foundations are laid for case-specific 

hearsay, meaning if this is going to be evidence about, that [appellant] had a bad childhood and he suffers from 

PTSD, with disassociation, and that is rooted in childhood experiences, that [the expert] can’t testify about for 

example, his conversations with [appellant’s] family. [¶] We’d need to hear from [appellant’s] family first to avoid 

Sanchez issues. That’s my understanding of the Sanchez objection. I have no intention of putting [the expert] on 

before I put on the witnesses he spoke to that would lay the foundation. So that would take care of the Sanchez

problem with respect to [the expert].” 
13

sister, and Castaneda before they could evaluate an expert’s opinion based on their 

statements. They could not simply assume that the expert’s reliance on these witnesses’

statements vouched for their truthfulness.

Appellant’s somewhat convoluted argument is that the court confused the 

jury by instructing, on the one hand, that it “could not rely on the truth of the out-of-court 

statements made by appellant and various witnesses to assess the reliability of [the 

expert’s] opinions” and also by instructing, on the other hand, that it “also could not rely 

on the in-court testimony of those persons to assess the reliability of [the expert’s] 

opinion.” Appellant continues, “[T]he jury did not understand that it could rely on the incourt testimony of the various witnesses named in [CALCRIM No. 360] in order for the 

jury to evaluate the factual basis for [the expert’s] opinion.” Appellant attributes 

“bewilderment” to the jury, as it was purportedly told “not to consider the information 

upon which [the expert] relied,” and yet the expert also could not have relied on the incourt testimony of the percipient witnesses because he was not in court to hear it. 

Therefore, appellant argues, the jury could not correctly evaluate the expert’s testimony 

about his intent or lack of it on the night of the shooting. 

The record does not support this argument. The trial court did not instruct 

the jury that it could not rely on the in-court testimony of the percipient witnesses to 

evaluate the expert’s opinion. It also did not instruct the jury that it could not rely on the 

truth of the out-of-court statements made by appellant and various witnesses. What the 

court said was that the expert’s reliance on the out-of-court statements was not proof of 

their truth. As CALCRIM No. 332 instructed, the jury had to make an independent 

assessment of the truth and accuracy of the information on which the expert relied. If the 

jury found this testimony to be “true and accurate,” then the expert could rely on these 

facts to form his opinion, the meaning and importance of which the jury also had to 

assess. 
14

In this case, the “information on which the expert relied” was presented to 

the jury by means of the percipient witnesses’ testimony. The jury was also instructed on 

witness credibility (CALCRIM No. 105) and told how to evaluate it. The court correctly 

instructed the jury as to how to decide whether the information on which the expert relied 

was true and accurate.

Appellant’s confusion-of-the-jury argument assumes that the expert must 

glean his or her case-specific facts from hearing the percipient witnesses’ testimony while 

sitting in the courtroom during trial. Sanchez sets out no such rule. Sanchez focuses on 

what the jury hears. The jurors must hear case-specific facts from competent witnesses, 

whose credibility they can personally evaluate. Then the jury decides whether to credit 

the expert’s opinion based, in part, on whether the case-specific information on which it 

rests is “true and accurate.” Sanchez puts no conditions on when or how the expert 

acquires this information so long as the jury has that opportunity to personally evaluate 

the credibility of the people who provided it.

The record undermines the confusion-of-the-jury argument in another way. 

During deliberations, the jurors asked nine questions. Among these questions were 

requests to read back appellant’s testimony, Castaneda’s testimony, and Arcero’s 

testimony. Since appellant’s identity as the shooter was not in question, the only reason 

to zero in on the testimony of these witnesses was to determine whether to believe the 

expert’s opinion that appellant was in a dissociative state or unconscious on the day he 

shot Medina. The jury well understood that it could rely on in-court testimony from these 

witnesses to make this decision.

It is telling, we think, that appellant has not pointed us to a single instance 

of the expert’s reliance on a purely out-of-court statement as the basis for his opinion, a

reliance that would run afoul of Sanchez. Our survey of the record indicates that the 

expert stuck closely to the facts given during the prior testimony of the four witnesses

when he explained how he arrived at his opinion. We do not think – and appellant does 
15

not argue – that the mistaken inclusion of three names in the jury instruction of people 

who did not testify and upon whom the expert did not rely sufficiently confused the jury 

to prejudice appellant.

Because the trial court did not give erroneous, inconsistent, or confusing 

instructions to the jury regarding the expert’s opinion, we need not address appellant’s 

arguments about ineffective assistance of counsel, prejudice, or his constitutional rights

in this regard.

II. Involuntary Manslaughter

Pimentel now argues that the trial court should have instructed the jury on 

involuntary manslaughter during an inherently dangerous assaultive felony. The felony 

involved, according to appellant, was a violation of Penal Code section 246, which 

prohibits “maliciously and willfully” discharging a firearm into an occupied motor 

vehicle.14 A violation of this section is a general intent crime. (People v. Jischke (1996) 

51 Cal.App.4th 552, 556 [“[T]he question is whether the defendant intended to do the 

proscribed act.”].) Appellant was not charged with a violation of section 246, and there 

was no mention or discussion of this code section during trial. 

“‘[A] defendant has a constitutional right to have the jury determine every 

material issue presented by the evidence [and] . . . an erroneous failure to instruct on a 

lesser included offense constitutes a denial of that right . . . .’ [Citation.] However, a trial 

judge need not instruct the jury as to all lesser included offenses, just those that find 

substantial support in the evidence. [Citation.] “‘“Substantial evidence” in this context is

“‘“evidence from which a jury composed of reasonable [persons] could . . . conclude[]

14 The Penal Code defines “willfully” as implying “a purpose or willingness to commit the act, or 

make the omission referred to. It does not require any intent to violate law, or to injure another, or to acquire any 

advantage.” “Maliciously” is defined as “a wish to vex, annoy, or injure another person or an intent to do a 

wrongful act, established either by proof or presumption of law.” (Pen. Code, § 7, subds. 1, 4.) 

One can imagine defense counsel’s reaction to a suggestion that the court instruct on a lesser 

included manslaughter offense that included willfulness and malice as elements after he had labored so strenuously 

to convince the jury appellant had been unconscious when he shot his wife. 
16

‘“‘that the lesser offense, but not the greater, was committed.’ [Citation.]” (People v. 

Haley (2004) 34 Cal.4th 283, 312, italics added.)

Appellant argues that the assaultive felony manslaughter instruction was 

necessary because if the jury did not believe him to be unconscious when he shot Medina, 

it then had no alternative but to find him guilty of murder in either the first or the second 

degree. An instruction on this alternative theory of manslaughter would have allowed it 

to find that he did not have the requisite intent even if he was conscious at the time of the 

shooting. 

It is not true that the sole choice presented to the jury was either murder in 

one degree or the other or involuntary manslaughter while intoxicated. The trial court 

also instructed the jury on voluntary manslaughter, and defense counsel argued to the jury 

that appellant was provoked. “Something went down” or “something happened” between 

appellant and Medina after he left Castaneda’s house the first time to set him off.15 

Unlike the instruction appellant argues for now, this theory did no violence to the 

dissociation theme at the heart of the defense.

The trial court instructed the jury regarding voluntary intoxication and the 

lesser included offense of involuntary manslaughter committed while voluntarily 

intoxicated.

16

 The jury was instructed that among the elements of involuntary 

15 Appellant’s expert testified that, in his opinion, “something traumatic” between appellant and 

Medina at the time of the shooting “set off the dissociation.” 

16 CALCRIM No. 626 provides, “Voluntary intoxication may cause a person to be unconscious of 

his or her actions. A very intoxicated person may still be capable of physical movement but may not be aware of his 

or her actions or the nature of those actions. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated 

by willingly using any intoxicating drug, drink, or other substance knowing that it could produce an intoxicating 

effect, or willingly assuming the risk of that effect. [¶] When a person voluntarily causes his or her own 

intoxication to the point of unconsciousness, the person assumes the risk that while unconscious he or she will 

commit acts inherently dangerous to human life. If someone dies as a result of the actions of a person who was 

unconscious due to voluntary intoxication, then the killing is involuntary manslaughter. [¶] Involuntary 

manslaughter has been proved if you find beyond a reasonable doubt that: [¶] 1. The defendant killed without legal 

justification or excuse; [¶] 2. The defendant did not act with the intent to kill; [¶ 3. The defendant did not act with 

a conscious disregard for human life; AND [¶] 4. As a result of voluntary intoxication, the defendant was not 

conscious of (his/her) actions or the nature of those actions. [¶] The People have the burden of proving beyond a 

reasonable doubt that the defendant was not unconscious. If the People have not met this burden, you must find the 

defendant not guilty of (murder/ [or] voluntary manslaughter).”
17

manslaughter were the lack of an intent to kill and not acting with a conscious disregard 

for human life. 

The court also instructed the jury on second degree murder.17 One of the 

elements of second degree murder is a conscious disregard for human life. By 

convicting appellant of second degree murder after having been instructed on involuntary 

manslaughter, the jury must necessarily have decided he deliberately acted with 

conscious disregard for human life. 

The verdict thus shows that any error in the involuntary manslaughter 

instructions was harmless because even if there was evidence that appellant consciously 

intended to shoot into the car merely to vex, annoy, or injure Medina, the jury was 

convinced beyond a reasonable doubt that the elements of the greater offense were 

proven. (See People v. Lee (1999) 20 Cal.4th 47, 60-66 [lack of any instructions on the 

misdemeanor manslaughter theory of involuntary manslaughter was harmless error 

because the jury determined the defendant acted with malice]; cf. People v. Coddington

(2000) 23 Cal.4th 529, 593, overruled on other grounds in Price v. Superior Court (2001) 

25 Cal.4th 1046, 1069, fn. 13 [trial court’s error in failing to instruct on second degree 

implied malice murder deemed harmless where the jury found the defendant’s killings 

were premeditated]; People v. Haley, supra ̧ 34 Cal.4th at p. 314 [jury’s guilty verdict on 

burglary and robbery rejected voluntary intoxication negation of specific intent]; People 

v. Lewis (2001) 25 Cal.4th 610, 646 [“Error in failing to instruct the jury on a lesser 

17 “I will also instruct you on the different types of murder. The defendant is charged with murder in 

violation of Penal Code Section 187. To prove the defendant is guilty of this crime, the People must prove that, one, 

the defendant committed an act that caused the death of another person, and, two, when the defendant acted, he had 

a state of mind called malice aforethought. There’s two kinds of malice aforethought, express malice and implied 

malice. Proof of either is sufficient to establish the state of mind required for murder. The defendant had express 

malice if he unlawfully intended to kill. The defendant had implied malice if, one, he intentionally committed the 

act. Two, the natural and probable consequence of the act were dangerous to human life. Three, at the time he 

acted, he knew his act was dangerous to human life. And, four, he deliberately acted with conscious disregard for 

human life. . . . [¶] . . . [¶] The People have the burden of proving beyond a reasonable doubt that the killing was a 

first-degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant 

not guilty of first-degree murder, and the murder is second-degree murder.” 
18

included offense is harmless when the jury necessarily decides the factual questions 

posed by the omitted instruction adversely to defendant under other properly given 

instructions.”].) 

An element of this kind of manslaughter – as of the intoxication kind on 

which the jury was instructed – is that the defendant did not act with a conscious 

disregard for human life. (See People v. Odell (2023) 92 Cal.App.5th 307, 321 [“The 

difference between other homicide offenses and involuntary manslaughter depends on 

whether [the defendant] was aware of the risk to life that his actions created and 

consciously disregarded that risk.”].) The jury in this case determined that appellant was 

guilty of second degree murder; it must therefore have determined, pursuant to the jury 

instruction on murder – which appellant does not challenge – that he knew shooting 

Medina was dangerous and that he had deliberately acted with conscious disregard for 

human life. Having done so, the jury could not have found him guilty of involuntary 

manslaughter of any description. (People v. Bryant (2013) 56 Cal.4th 959, 970 [“A 

defendant who has killed without malice in the commission of an inherently dangerous 

assaultive felony must have killed without either an intent to kill or a conscious disregard 

for life.”]; Pen. Code, § 192, subd. (b).)18 

We find nothing in the court’s instructions to merit reversal.

18 From the jury instructions: “I can accept a verdict of guilty or not guilty of voluntary or 

involuntary manslaughter only if all of you have found the defendant not guilty of both first- and second-degree 

murder.” 
19

DISPOSITION

The judgment is affirmed.

BEDSWORTH, J.

WE CONCUR:

O’LEARY, P. J.

SANCHEZ, J.