Filed 9/10/20 P. v. Ruiz CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

GUADALUPE RUIZ,

Defendant and Appellant.

F076454

(Super. Ct. No. BF162719B)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. Brian M. 

McNamara, Judge.

Kendall D. Wasley, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Eric L. Christoffersen and 

Nirav K. Desai, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOooDefendant Guadalupe Ruiz was convicted by a jury of second degree murder for 

his role in the fatal beating of Abel Prendiz. Ruiz kicked Prendiz in the head after the 

victim had already been beaten by Ruiz’s co-defendant, Quinton James. Prendiz died in 
2.

the hospital 18 days after the assault. Ruiz raises four contentions on appeal: (1) there 

was insufficient evidence he acted with implied malice as required for second degree 

murder; (2) the trial court erred in not giving the jury an involuntary manslaughter

instruction; (3) the trial court erred in admitting evidence of a prior bad act he committed 

the same day as the assault on Prendiz; and (4) his three prior prison term enhancements 

must be stricken pursuant to newly enacted Senate Bill No. 136. We agree with his 

fourth contention only. We therefore order those sentencing enhancements stricken, and 

otherwise affirm. 

STATEMENT OF THE CASE

The Kern County District Attorney filed an information charging Ruiz and his 

co-defendant, Quinton James, with first degree murder for killing Abel Prendiz. The 

information also alleged Ruiz had suffered six prior convictions resulting in prison 

sentences. 

The information was later amended to charge Ruiz with second degree murder. 

Ruiz pleaded not guilty and denied all alleged enhancements, resulting in a jury trial. 

James entered into an agreement with the prosecution wherein he pleaded no contest to

voluntary manslaughter and agreed to testify for the prosecution in exchange for a 14-

year prison term. The jury convicted Ruiz of second degree murder, and in a separate 

court trial the court found true four of Ruiz’s six alleged prior prison terms. 

The prosecution filed an amended information on the day of sentencing. On 

October 12, 2017, Ruiz was sentenced to a term of 18 years to life in prison as follows: 

15 years to life for the murder, plus an additional three years for three prison prior 

convictions. 
3.

FACTS

I. The homicide

On November 9, 2015,1 between 4:00 p.m. and 4:30 p.m., 55-year-old Abel 

Prendiz and his girlfriend, M., arrived home at their apartment complex after running 

errands. While Prendiz and M. sat in their truck, two men in a black truck drove up and 

parked in the parking stall next to them. The men, Ruiz and James, went into the 

apartment next to Prendiz and M.’s, which belonged to a woman named A. Ruiz and 

James had been drinking and decided to visit A. A. had known James his whole life, and 

had known Ruiz approximately five years. She referred to James as her “cousin.” 

Within five minutes, James came out of A.’s apartment, angry, cussing, and 

swinging his hands. A. described James as “frantic.” Prendiz and M. were unloading 

things from their truck when James looked in the direction of Prendiz and M. and said, 

“What the fuck are you looking at?” Ruiz was still inside of A.’s apartment at this time. 

James ran towards Prendiz and started hitting him. James’s first strike was to Prendiz’s 

face. Prendiz fell to the ground, and James got on top of him and continued hitting him. 

As Prendiz was on the ground getting hit by James, Ruiz approached M. and stood 

“nose to nose” with her. He then went over to Prendiz and James and began hitting 

Prendiz. M. testified Ruiz kicked Prendiz in the head “very many times.” When asked 

what part of Prendiz’s head Ruiz kicked, M. responded, “On the top, on the side, on his 

ear, in his face, everywhere.” M. yelled at the men to stop and that they were hurting 

him. However, as M. testified, “They wouldn’t stop. They just kept going, kept on and 

on. They had no mercy. No mercy.” A. was also present and was yelling at James and 

Ruiz to stop. A. and M. tried to pull James off of Prendiz, but he “swung” at them and 

caused them to go “flying.” A. testified she tried to get Ruiz to assist her in pulling 

James off of Prendiz, but Ruiz did not help. M. continued to yell at the men to stop and 

1 References to dates are to dates in 2015 unless otherwise stated. 
4.

said, “You are going to kill him.” M. testified blood was “gushing” from Prendiz’s head. 

A. testified “there was a lot of blood.” According to M., the beating continued until M. 

yelled, “Look at all the blood.” According to A., the beating stopped when A. told them 

“the cops are coming right now.” Ruiz and James then stopped and fled. 

M. testified Prendiz’s head “was bleeding all around,” his mouth was “busted up 

inside and out,” his ear and head were “stretched out,” and his eyes were blackened. She 

said his head “was like a cone head, but to the side.” 

James testified as part of his plea agreement. He initially testified he was standing 

in the doorway of A.’s apartment when he heard Ruiz and Prendiz “exchanging words.” 

However, he later testified Ruiz was in the apartment when the fight started. James 

approached Prendiz, started “talking trash,” accused Prendiz of stealing something, and 

then began fighting. Prendiz did not provoke the fight, and James did not know why he 

was “talking trash” and accusing Prendiz of stealing something. James had never met 

Prendiz before. After the first few blows, Prendiz went into his apartment but then came 

back outside. James immediately resumed his attack on Prendiz. Prendiz fell to the 

ground and James got on top of Prendiz and continued to punch him. James said he 

punched Prendiz in the face “quite a bit.” Two women were yelling at him to stop and 

that he was going to kill Prendiz, at which point he stopped hitting Prendiz. After James 

stopped, Ruiz “just went up to [Prendiz] and kicked him one time” in the “head or face” 

with his steel-toed boot. James stated Ruiz “kicked the shit out of [Prendiz],” and said 

the kick took the attack “to another level.” James and Ruiz then left. James and Ruiz 

returned to A.’s apartment later in the day looking for something, but A. told James that 

the victim had been taken to the hospital, the police were coming, and they had to leave. 

James went home and Ruiz went to his own house. 

Detectives obtained surveillance video from a nearby trailer that captured portions 

of the incident. Excerpts of the footage were shown to the jury. The footage showed the 

beginning of James’s attack on Prendiz, but did not capture approximately 60 seconds of 
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the fight that occurred outside of the camera’s view. The footage did not capture Ruiz 

kicking Prendiz. The footage did, however, show Ruiz trying to break up the fight 

between James and Prendiz. 

A. testified at trial she did not recall Ruiz participating in the attack or kicking 

Prendiz. However, this was contradicted by her 911 call, which she made at 4:22 p.m. on 

the date of the attack. Despite her 911 call being played for the jury while she was on the 

witness stand, she stated she did not recall calling 911. She testified she did not want to 

be a witness. She explained her reluctance was due to her being from the “old school,” 

and that she was afraid of being a “snitch at a murder trial” and feared retaliation. A. also 

said during an interview with a detective that “they” kicked Prendiz “once or twice.” 

However, when presented with this prior statement at trial, A. said she did not recall 

seeing a kick and did not know why she told the detective that. 

During her 911 call, A. requested an ambulance be sent out to her address. She 

told the operator her neighbor “need[ed] an ambulance because they, they, they beat him 

up.” She stated Prendiz was awake and breathing, but had “blood all over his face” and 

was “losing a lot of blood right now ....” The operator asked if there was “any serious 

bleeding,” and A. responded “yeah on his face he’s got a big contusion” and said it was 

bloody by his left temple. The operator instructed her on how to apply a towel to stop the 

bleeding. 

An ambulance crew arrived at the scene, and Prendiz was able to speak with them. 

He was alert and oriented, and stated he was “punched and kicked” by two men. Prendiz 

nodded his head when a paramedic asked if he was okay. According to the paramedic, 

Prendiz’s head injuries included a large contusion, a laceration, redness, substantial 

swelling on the left side of his face, swelling at his cheekbone under his left eye, and a 

large hematoma extending from the left temple down to the top of his upper lip. The 

paramedic described his injuries as a “major injury.” Prendiz was able to walk two or 

three feet to get onto the gurney. 
6.

Prendiz arrived at the hospital and appeared to be in pain and “hurt pretty bad.” 

He had multiple brain injuries, including subarachnoid and subdural bleeds. The brain 

injuries were on both his right and left side. He also had multiple facial fractures: in his 

jaw, cheekbone, maxillary area, and left orbital socket. His eye was swollen and bruised. 

His attending physician testified Prendiz was speaking coherently when he arrived 

at the hospital on November 9, and the next day he seemed to be doing “okay” and 

progressing well. The physician testified the majority of brain bleeds are survivable, but 

“[a]ll brain bleeds are serious” due to the risk of brain damage and brain death. On 

November 11, the brain bleeding seemed well-contained, and doctors decided Prendiz 

could go home and finish recovering with bed rest. According to doctors, when Prendiz 

was discharged on November 11, he seemed neurologically stable and had only a minor 

headache. 

Prendiz’s daughter drove him home, with M. also riding in the car. Prendiz 

repeated himself multiple times during the ride, and seemed very tired. That night, he 

complained of being in pain, could not chew food, and said, “I don’t think I’m going to 

make it.” The next morning, he told M. he was still in pain and said, “I’m not going to 

make it.” M. went to the pharmacy and picked up his prescription medications. When 

she returned home, she found Prendiz unconscious on the bathroom floor. She called 

911, and Prendiz was taken back to the hospital. 

Prendiz was “severely impaired” when he arrived back at the hospital. A CT scan 

revealed massive swelling and a subdural bleed that was “very large” and “causing 

compression of the brain.” The bleed was in the “same approximate location” as the 

initial bleed. Emergency brain surgery was done to alleviate the swelling. After the 

surgery, Prendiz remained in a coma until his family eventually decided he be provided 

“comfort care.” He died on November 27. One of his attending physicians testified his 

injuries were consistent with a “traumatic assault” and opined the assault caused his 
7.

death. Before Prendiz died, surgeons told one of Prendiz’s daughters Prendiz would need 

separate facial reconstruction surgery. 

An autopsy was performed on December 3. The forensic pathologist testified 

Prendiz’s death was caused by “blunt head injuries.” The injuries would be consistent 

with a kick from a steel-toed boot, and a single kick from such a boot could have been 

sufficient to cause the death. However, the nature of the brain bleeding indicated there 

were probably multiple blows. The pathologist additionally observed bleeding over the 

“top back skull” underneath the tissues tightly covering the skull, which indicated a 

“deeper, more extensive type of injury.” The fractured facial bones were a sign of “fairly 

severe force.” The fractures would more likely come from kicks than fists. The 

pathologist also noted an unusual lack of abrasions on Prendiz, as one would expect to 

see abrasions on someone’s face who had been kicked with steel-toed boots. However, it 

is possible the tip of a smooth rubber boot could tear the skin without abrading it. 

The pathologist also testified Prendiz was a “very sick man with many chronic 

diseases.” Prendiz’s liver was also “shot,” which made him an “easy bleeder.” The 

pathologist opined a healthy person would “probably not” have died from the injuries 

Prendiz sustained. He stated Prendiz’s damaged liver would explain why the bleeding 

would have gotten worse after he was released from the hospital. 

Ruiz and James were arrested in early January 2016. During Ruiz’s interview 

with detectives, Ruiz denied helping James in the fight and kicking or punching Prendiz. 

He said he tried to break up the fight. Ruiz said he had been fighting his whole life and 

that he had never kicked anybody before during a fight. He said, “I usually just use my 

fists.” He stated he had been kicked before and knows how it feels. He acknowledged 

kicking someone can cause “serious injury,” which is why he said he never kicks 

anybody during fights. He also acknowledged steel-toed boots can be considered a 

“weapon” and fists “can do some damage.” He further agreed with one of the detectives 
8.

that James was “whippin’ [Prendiz’s] ass” at the end of the fight and that Prendiz was on 

the ground. Ruiz said Prendiz “was getting wailed on” and “took so many fuckin’ hits.” 

II. Evidence of prior bad act

Earlier on November 9, Ruiz and James were at the house where James was 

staying, drinking alcohol. Ruiz and James had been friends for 10 years. Another man, 

D., was also at the house repairing windows and a fence. For no reason, Ruiz shot 

several BB’s from a BB gun at D. and D.’s truck. Several of the BB’s struck D and his 

truck. 

D. became upset and approached Ruiz and said, “What the fuck?” Ruiz 

apologized and gave D. 100 dollars. D. responded, “What? It’s not even about that.” As 

D. was loading his tools into his truck, Ruiz punched D. in the face and began “swinging” 

at D. D. got back to his feet and ran around a car to gather himself. D. attempted to 

throw a punch at Ruiz, but Ruiz caught D. with a punch that knocked D. to the ground. 

Ruiz began kicking D. in the ribs several times while wearing steel-toed boots. As D. lie

on the ground, looking up, Ruiz lifted his boot and prepared to stomp on D. D. could see 

the bottom of Ruiz’s boot coming at his head. But before Ruiz could bring his boot all 

the way down, James tackled Ruiz. James told D. to leave and said he would talk to D. 

later. D. got into his truck and drove away. D. suffered a black eye and “beat up” ribs. 

DISCUSSION

I. Sufficiency of the evidence of implied malice

Ruiz was convicted of the second degree murder of Prendiz based on the 

prosecution’s theory of implied malice. Murder is the unlawful killing of a human being 

or a fetus with malice aforethought. (Pen. Code,2 § 187, subd. (a).) For second degree 

murder, the malice can be implied. (§§ 187, subd. (a); 188.) There is both a physical and 

mental component to implied malice. (People v. Guillen (2014) 227 Cal.App.4th 934, 

2 Undesignated statutory references are to the Penal Code. 
9.

984.) “ ‘ “The physical component is satisfied by the performance of ‘an act, the natural 

and probable consequences of which are dangerous to life.’ [Citation.] The mental 

component is the requirement that the defendant ‘knows that this conduct endangers the 

life of another and ... acts with a conscious disregard for life.’ ” ’ ” (People v. Bryant

(2013) 56 Cal.4th 959, 965 (Bryant).) In short, implied malice requires a defendant’s 

awareness of engaging in conduct that endangers the life of another. (People v. Cravens

(2012) 53 Cal.4th 500, 507 (Cravens).) 

Ruiz contends there was insufficient evidence to support the mental component of 

implied malice. “Our task is clear. ‘On appeal we review the whole record in the light 

most favorable to the judgment to determine whether it discloses substantial evidence—

that is, evidence that is reasonable, credible, and of solid value—from which a reasonable 

trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.]’ ... 

The conviction shall stand ‘unless it appears “that upon no hypothesis whatever is there 

sufficient substantial evidence to support [the conviction].” ’ ” (Cravens, supra,

53 Cal.4th at pp. 507-508.) “All conflicts in the evidence are resolved in favor of the 

judgment ....” (People v. Neely (2009) 176 Cal.App.4th 787, 793.) We “must ... 

presume in support of the judgment the existence of every fact the trier could reasonably 

deduce from the evidence. [Citation.] [¶] Although we must ensure the evidence is 

reasonable, credible, and of solid value, nonetheless it is the exclusive province of the 

trial judge or jury to determine the credibility of a witness and the truth or falsity of the 

facts on which that determination depends.” (People v. Jones (1990) 51 Cal.3d 294, 

314.) Following these well-established standards of appellate review, we conclude there 

was ample evidence Ruiz was well aware that kicking Prendiz in the head endangered his 

life. 

The mental component of implied malice can be satisfied “if [Ruiz] knew that his 

conduct endangered [Prendiz’s] life and he acted with a conscious disregard for life.” 

(People v. Palomar (2020) 44 Cal.App.5th 969, 977.) “ ‘This component is ordinarily 
10.

proven by illustrating the circumstances leading to the ultimate deadly result.’ ” (Ibid.) 

“ ‘Of course, the jury was entitled to infer [Ruiz’s] subjective awareness that his conduct 

endangered [Prendiz’s] life from the circumstances of the attack alone, the natural 

consequences of which were dangerous to human life. [Citation.] But [Ruiz’s] behavior 

before and after [his kick] further demonstrated that this was not ... a simple fistfight .... 

These facts, too, bolstered the finding of implied malice.’ ” (Id. at p. 978.) 

Prendiz was a vulnerable victim at the time Ruiz kicked him in the head (at least 

once) with steel-toed boots. Prendiz had already been hit multiple times in the head by 

James, he was bleeding, and M. and A. were yelling at James and unsuccessfully trying 

to get James to stop his onslaught. Ruiz was aware of these circumstances, and decided 

to kick the already beaten 55-year-old Prendiz in the head with steel-toed boots anyway. 

By the time Ruiz and James finished their attack, Prendiz’s head was bloody and 

deformed, like a “conehead.” Ruiz’s conduct after the fight also evidences implied 

malice. Ruiz and James only stopped the assault after A. yelled “you are killing him.” 

At that point, rather than render aid, call 911, or otherwise express any remorse, the two 

attackers fled. Additionally, during his post-arrest interview with detectives, Ruiz stated 

he considered steel-toed boots to be a “weapon” capable of causing “serious damage,” 

which he explained is the reason he “does not kick people in fights.” 

The evidence presented at trial portrayed a brutal, merciless, unnecessary, and 

unfair (i.e., two men against one) beating of an innocent and vulnerable victim. The 

evidence further demonstrated Ruiz knew his boots were weapons and knew kicking the 

vulnerable and already beaten Prendiz in the head would endanger his life. There was 

thus sufficient evidence of implied malice to support the second degree murder 

conviction. 

II. Failing to instruct on involuntary manslaughter

Ruiz next contends the trial court prejudicially erred by not instructing the jury on 

the lesser included offense of involuntary manslaughter. The trial court instructed the 
11.

jury on second degree murder and the lesser included offense of voluntary manslaughter. 

Ruiz’s trial counsel requested an instruction on involuntary manslaughter due to 

voluntary intoxication, but admitted he did not see a basis for such instruction. Ruiz did 

not otherwise request an involuntary manslaughter instruction. The People objected to an 

involuntary manslaughter instruction because of a lack of evidence supporting the 

absence of malice. The court declined to give an involuntary manslaughter instruction 

because it did not “find any facts to support the warranting of giving involuntary 

manslaughter in this case.” Ruiz argues the trial court had a sua sponte duty to instruct 

on involuntary manslaughter. Alternatively, he argues that if the court did not have a sua 

sponte duty to so instruct, his trial counsel was ineffective for failing to request an 

involuntary manslaughter instruction.

We conclude the evidence presented at trial did not create a reasonable doubt that 

the fatal assault on Prendiz was second degree murder on an implied malice theory. As 

such, the trial court would have had no duty to instruct on involuntary manslaughter, even

had a request been made. 

A. Law and Analysis

“ ‘The trial court is obligated to instruct the jury on all general principles of law 

relevant to the issues raised by the evidence, whether or not the defendant makes a formal 

request.’ ... ‘That obligation encompasses instructions on lesser included offenses if 

there is evidence that, if accepted by the trier of fact, would absolve the defendant of guilt 

of the greater offense but not of the lesser.’ ... ‘To justify a lesser included offense 

instruction, the evidence supporting the instruction must be substantial—that is, it must 

be evidence from which a jury composed of reasonable persons could conclude ... “that 

the lesser offense, but not the greater, was committed.” ... “On appeal, we review 

independently the question whether the trial court failed to instruct on a lesser included 

offense.” ’ ” (People v. Souza (2012) 54 Cal.4th 90, 115–116, citations omitted.) 
12.

The theory of involuntary manslaughter Ruiz contends was warranted by the 

evidence here is described in People v. Brothers (2015) 236 Cal.App.4th 24 (Brothers). 

Under that theory, a defendant is guilty of involuntary manslaughter when he or she 

commits a killing, without malice, during an inherently dangerous assaultive felony. (Id.

at pp. 33–35.) 

To explain how the Brothers court reached its conclusion that a killing, without 

malice, during an inherently dangerous assaultive felony is involuntary manslaughter, 

some background discussion would be helpful. Manslaughter is defined as “the unlawful 

killing of a human being without malice.” (§ 192.) Further, involuntary manslaughter 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.” (§ 192, subd. (b).) In Bryant, 

supra, 56 Cal.4th at p. 970, our Supreme Court explained that although the Penal Code 

does not specify the type of manslaughter committed when a defendant kills without 

malice during an inherently dangerous assaultive felony, such a killing is not voluntary 

manslaughter. Because review was not granted on the issue, Bryant expressly declined to 

address whether a killing without malice during an inherently dangerous felony could 

support a conviction for involuntary manslaughter. (Id. at pp. 970–971.) However, 

Justice Kennard’s concurrence analyzed the issue and concluded a defendant who kills 

unlawfully during an assault with a deadly weapon, but without malice, may be found 

guilty of involuntary manslaughter. (Id. at pp. 971–974, conc. opn. of Kennard, J..) 

Brothers directly considered the issue not reached by Bryant but addressed in 

Justice Kennard’s concurrence. The Brothers court agreed with Justice Kennard, 

explaining that “if an unlawful killing in the course of an inherently dangerous assaultive 

felony without malice must be manslaughter ... and the offense is not voluntary 

manslaughter ..., the necessary implication of the majority’s decision in Bryant is that the 

offense is involuntary manslaughter. Accordingly, an instruction on involuntary 
13.

manslaughter as a lesser included offense must be given when a rational jury could 

entertain a reasonable doubt that an unlawful killing was accomplished with implied 

malice during the course of an inherently dangerous assaultive felony.” (Brothers, supra,

236 Cal.App.4th at pp. 33–34.) However, as the Brothers court cautioned, “when, as 

here, the defendant indisputably has deliberately engaged in a type of aggravated assault 

the natural consequences of which are dangerous to human life, thus satisfying the 

objective component of implied malice as a matter of law, and no material issue is 

presented as to whether the defendant subjectively appreciated the danger to human life 

his or her conduct posed, there is no sua sponte duty to instruct on involuntary 

manslaughter .... Otherwise, an involuntary manslaughter instruction would be required 

in every implied malice case regardless of the evidence. We do not believe that this is 

what the Supreme Court intended in Bryant.” (Id. at p. 35.) 

Ruiz was entitled to an instruction on involuntary manslaughter pursuant to 

Brothers only if a rational jury could entertain a reasonable doubt that Prendiz’s killing, 

although occurring during a beating with fists and kicks, was accomplished without 

malice. (Brothers, supra, 236 Cal.App.4th at pp. 33–34.) “Malice is implied when an 

unlawful killing results from a willful act, the natural and probable consequences of 

which are dangerous to human life, performed with conscious disregard for that danger.” 

(People v. Elmore (2014) 59 Cal.4th 121, 133.) 

The thrust of Ruiz’s argument suggests there was evidence presented at trial from 

which the jury could have concluded he was guilty of involuntary manslaughter on the 

theory that the natural and probable consequences of his kick to Prendiz’s head were not 

dangerous to Prendiz’s life.3 Ruiz draws attention to the facts that Prendiz did not lose 

consciousness at the scene and talked to paramedics, that Prendiz was able to walk two or 

three feet unassisted to the gurney, and that a healthy person likely would not have died 

3 For purposes of analyzing this issue, we presume Ruiz kicked Prendiz only once. 
14.

from the same injuries. He argues these facts could have allowed the jury to entertain a 

reasonable doubt about the dangerousness of the kick, had the jury been instructed with 

involuntary manslaughter. However, these facts that Ruiz highlights need not—indeed, 

must not—be examined in a vacuum. Rather, these facts must be considered within the 

totality of the facts and surrounding circumstances. When all of the facts and 

circumstances are properly considered together, the record is devoid of evidence from 

which a reasonable jury could conclude Ruiz was guilty of involuntary manslaughter on 

the theory the kick was not dangerous to human life. 

Prendiz was 55 years old, had already been “wailed on” by James, and was on the 

ground in a vulnerable position. As Ruiz said, Prendiz had already taken “so many 

fuckin’ hits.” Ruiz was also wearing steel-toed boots, and kicked Prendiz in the head, a 

vulnerable part of the body housing the brain. The beating was so brutal it resulted in 

multiple facial fractures, massive bleeding, brain injuries, and a deformed head. Had 

Prendiz survived, facial reconstruction surgery would have been needed. The responding 

paramedic described Prendiz’s injuries as “major,” and an attending physician described 

them as “fairly serious.”

Even though Prendiz was not rendered unconsciousness at the scene and a 

healthier person would likely have survived, the totality of the facts and circumstances 

nevertheless indisputably demonstrate the natural and probable consequences of the kick 

were dangerous to Prendiz’s life. The evidence demonstrated Ruiz participated in a 

brutal, merciless beating, and that his kick, which was delivered after Prendiz had already 

sustained substantial injuries, was dangerous to Prendiz’s life. Stated differently, while 

Prendiz’s remaining conscious at the scene and his infirm health are factors that would 

tend to support Ruiz’s argument that the kick was not dangerous to Prendiz’s life, these 

facts pale when considered in light of the totality of the facts and circumstances that 

indisputably demonstrate the kick was dangerous to Prendiz’s life. This was not a simple 
15.

fist fight in which a single unlucky blow resulted in the victim’s death. (People v. Cook

(2006) 39 Cal.4th 566, 597.)

Additionally, Ruiz seems to suggest that the fact he was not the initial aggressor 

and that he at first tried to break up the fight demonstrate a lack of malice. However, 

regardless of what Ruiz initially did or did not do, he eventually decided to kick an 

injured and vulnerable victim in the head with steel-toed boots. There was no evidence 

presented the kick was an accident or in self defense. Rather, the evidence demonstrated 

the kick was intended to injure Prendiz. 

In sum, the evidence at trial did not raise a material issue as to whether the killing 

was committed without malice, and therefore the trial court had no duty to instruct on 

involuntary manslaughter as a lesser included offense. (Brothers, supra, 236 Cal.App.4th 

at p. 35.) 

III. Evidence of prior bad act

Finally, Ruiz contends the trial court prejudicially abused its discretion in allowing

the jury to hear the evidence of the incident involving D. The court admitted the 

evidence for the limited purpose of proving Ruiz’s knowledge of the risk to human life 

that would follow from kicking someone in the head with steel-toed boots. We conclude 

the trial court improperly allowed the evidence of this incident, but conclude Ruiz did not 

suffer prejudice. 

Evidence of prior convictions or uncharged crimes is inadmissible to establish 

propensity to commit a crime on a particular occasion. (Evid. Code, § 1101, subd. (a).) 

Subdivision (a) of Evidence Code section 1101 provides that subject to certain exceptions 

“evidence of a person’s character or a trait of his or her character (whether in the form of 

an opinion, evidence of reputation, or evidence of specific instances of his or her 

conduct) is inadmissible when offered to prove his or her conduct on a specified 

occasion.” Evidence of prior convictions or uncharged crimes is admissible, however, to 

prove “that a person committed a crime, civil wrong, or other act when relevant to prove 
16.

some fact (such as motive, opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake or accident, ...) ....” (Evid. Code, § 1101, subd. (b).) 

“ ‘The admissibility of other crimes evidence depends on (1) the materiality of the 

facts sought to be proved, (2) the tendency of the uncharged crimes to prove those facts, 

and (3) the existence of any rule or policy requiring exclusion of evidence.’ ” (People v. 

Lindberg (2008) 45 Cal.4th 1, 22.) “The trial court has great discretion in determining 

the admissibility of evidence ....” (People v. Williams (2009) 170 Cal.App.4th 587, 606; 

accord, People v. Valdez (2012) 55 Cal.4th 82, 170.) A trial court’s decision to admit 

evidence of uncharged offenses under Evidence Code sections 1101, subdivision (b), and 

352 is reviewed for an abuse of discretion. (People v. Foster (2010) 50 Cal.4th 1301, 

1328 (Foster).) Reversal is warranted only if “ ‘ “the trial court exercised its discretion in 

an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage 

of justice.” ’ ” (Id. at pp. 1328–1329; see also People v. Memory (2010) 182 Cal.App.4th 

835, 862 [“ ‘erroneous admission ... of evidence does not require reversal except where 

the error ... caused a miscarriage of justice’ ”].) “[A] ‘miscarriage of justice’ should be 

declared only when the court, ‘after an examination of the entire cause, including the 

evidence,’ is of the ‘opinion’ that it is reasonably probable that a result more favorable to 

the appealing party would have been reached in the absence of the error.” (People v. 

Watson (1956) 46 Cal.2d 818, 836 (Watson); see People v. Rains (1999) 75 Cal.App.4th 

1165, 1170.)

Here, Ruiz’s knowledge of the dangerousness to human life of a kick to the face 

with steel-toed boots was certainly material. He was charged with murder on an implied 

malice theory, which requires a showing Ruiz had knowledge of the dangerous of his 

conduct to human life. 

However, the D. incident did not have a tendency to prove Ruiz’s knowledge of 

the dangerousness to human life of kicking someone in the head with steel-toed boots 

because James stopped Ruiz from kicking D.’s head. Since the kick was thwarted, Ruiz 
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was not able to observe the damage his kick would have caused to D. The People argue 

James’s act of stopping Ruiz from stomping on D. conveyed to Ruiz that kicking a person 

with steel-toed boots would be dangerous to human life. We reject the People’s 

argument. It is an unreasonable leap to say that James prevented the stomp because he 

knew the stomp would have endangered D.’s life, and that this knowledge was silently 

imparted to Ruiz. There was no evidence presented James or anyone else told Ruiz that 

stomping or kicking a person in the head with steel-toed boots would have endangered 

someone’s life. Thus, it was improper to allow evidence of this incident as probative of 

Ruiz’s knowledge of the danger to human life from a kick to the head. 

Notwithstanding, there was no prejudicial abuse of discretion because no 

miscarriage of justice resulted. (Foster, supra, 50 Cal.4th at pp. 1328-1329.) This is 

because there is no reasonable probability Ruiz would have obtained a more favorable 

result absent the admission of the D. incident. (Watson, supra, 46 Cal.2d at p. 836.) Ruiz 

plainly admitted in his post-arrest interview he knew steel-toed boots were a “weapon” 

capable of causing “serious damage,” which he explained is why he did not kick people 

during fights. While Ruiz did not specifically admit to knowing that kicking someone’s 

head with steel-toed boots endangers human life, such knowledge could nevertheless be 

inferred from Ruiz’s acknowledging boots can cause “serious damage.” Furthermore, his 

knowledge of the dangerousness to human life could be easily gleaned from his statement 

he does not kick people in fights because of the dangerousness. In sum, Ruiz’s 

knowledge of the risk to human life from kicking someone’s head with steel-toed boots 

could have been easily gleaned from Ruiz’s own statements—reference to the D. incident 

was unnecessary for that purpose. 

Additionally, Ruiz contends evidence of the D. incident was nothing more than 

improper evidence of his violent character. However, Ruiz admitted to detectives he had 

been fighting “[his] whole life.” The details of the D. incident were also not particularly 

violent or disturbing, especially when compared to the evidence of the homicide.
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Furthermore, the jury was admonished that the evidence of the incident “may not 

be considered ... to prove that [Ruiz] is a person of bad character or that he had a 

disposition to commit crimes.” Thus, while the trial court erred in admitting the evidence 

of this prior incident, no miscarriage of justice resulted and no reversal is required. 

IV. Prison prior enhancements

In supplemental briefing, Ruiz contends his three one-year prior prison term 

enhancements imposed pursuant to section 667.5, subdivision (b) must be stricken in 

light of Senate Bill No. 136 (2019–2020 Reg. Sess.; Sen. Bill No. 136), which was signed 

into law on October 8, 2019, and became effective on January 1, 2020. The People 

concede the issue, and we agree.

Senate Bill No. 136 amended section 667.5, subdivision (b) regarding prior prison 

term enhancements. Under section 667.5, subdivision (a), which remains unchanged, 

courts are required to impose a three-year sentence for each prior separate prison term 

served by the defendant where the prior and current offense was a violent felony, as 

defined in subdivision (c) of section 667.5. For other felonies, former section 667.5, 

subdivision (b) imposed an additional one-year term for each prior separate prison term 

or county jail felony term, except under specified circumstances. However, amended 

section 667.5, subdivision (b) imposes that additional one-year term only for each prior 

separate prison term served for a conviction of a sexually violent offense as defined in 

Welfare and Institutions Code section 6600, subdivision (b). (§ 667.5, subd. (b).) 

Because none of Ruiz’s prior prison terms was served for a sexually violent offense, his 

section 667.5, subdivision (b) enhancements are now unauthorized under the amended 

statute. 

The parties agree Senate Bill No. 136 applies to Ruiz because the statute is 

retroactive and applies to all cases not yet final as of its effective date. (In re Estrada

(1965) 63 Cal.2d 740, 742; People v. Garcia (2018) 28 Cal.App.5th 961, 972.) 

Accordingly, Ruiz’s three one-year prior prison term enhancements must be stricken.
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DISPOSITION

Ruiz’s three one-year prison prior enhancements are stricken. The trial court is 

directed to cause to be prepared an amended abstract of judgment reflecting this 

modification and forward certified copies of the same to the appropriate entities. The 

judgment is otherwise affirmed.

SNAUFFER, J.

WE CONCUR:

MEEHAN, Acting P.J.

DE SANTOS, J.