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Filed 11/14/13 P. v. Tafoya CA3 

NOT TO BE PUBLISHED 

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 This opinion has not been certified for publication 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 

THIRD APPELLATE DISTRICT 

(Sacramento) 

---- 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

ALFREDO DANIEL TAFOYA, 

 Defendant and Appellant. 

C070739 

(Super. Ct. No. 09F08863) 

 A jury rejected defendant Alfredo Daniel Tafoya’s imperfect self-defense or 

defense of another and convicted him of the second degree murder of two young men at a 

quinceañera populated by both Norteño and Sureño gang members. On appeal, he 

contends the trial court committed prejudicial error by failing to give a defense 

instruction on antecedent threats made by Norteños. We disagree that the modified 

instruction accepted by defense counsel constituted ineffective assistance of counsel or 

reversible error. Because we conclude there was no prejudice, we affirm the judgment. 

FACTS 

 Most of the facts recited by the parties are not relevant to the solitary issue on 

appeal. There is no dispute that defendant shot Carlos Montes and Efrain Zambrano at a 
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quinceañera in the Estrellita Ballroom in Galt on November 28, 2009. The alleged 

instructional error relates to imperfect self-defense/defense of another and therefore 

defendant’s unreasonable belief that his friend, Aztek, was at risk of death or great bodily 

injury. We will describe the relevant facts in response to the Attorney General’s 

contentions that there was no evidence defendant’s “attacks on the victims were 

prompted by his knowledge of the Norte[ñ]o and Sure[ñ]o history,” no evidence that 

“ ‘historical knowledge of another gang’s prior violence or threats’ was ‘relevant to its 

determination of his beliefs at the time he acted,’ ” and no substantial evidence “that 

antecedent threats by Norte[ñ]o gang members precipitated or factored into [defendant’s] 

actual yet unreasonable beliefs.” 

 In fact, with members of both Norteño and Sureño gangs in attendance at the 

quinceañera, the record is replete with evidence of gang rivalries, threats, and reactions. 

The gang expert explained that Sureño gang members are outnumbered four or five to 

one in the Sacramento area. Defendant kept a crude Sureño manifesto in his composition 

book that was admitted as evidence at trial. The expert translated many of the entries for 

the benefit of the jury, which otherwise would have been unable to understand the gang 

vernacular. Suffice it to say, defendant was well-steeped in the gang culture, hateful 

toward Norteños, and resolute in his desire to gain respect and to protect his territory. 

 Uninvited, defendant and Aztek, both sporting blue, showed up at the quinceañera 

and were admitted. Defendant hid a firearm under his peacoat. He danced with several 

girls, drank, and appeared tipsy. He talked to another Sureño, Jose Pimentel, and 

introduced him to a friend in a blue hat. Video cameras at the ballroom captured a lot, 

but not all, of what happened. A 12-year-old girl also filmed some of the fight that 

precipitated the shooting. 

 Defendant danced with Vanessa Garcia, Candy Porras, and Llesenia Calderon. 

They reported that Aztek was wearing a blue hat, but so were others. Porras testified that 

someone wearing a red hat approached Aztek saying, “Norte.” She saw others approach 
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him, and a fight ensued. Calderon knew that Norteños and Sureños were involved in the 

fight. 

 Maribel Aldaco witnessed the fight by the front door. She saw a man in a blue hat 

throw a gang sign, which appeared to upset others in attendance. She saw gang signs 

being thrown and believed the argument was gang related. 

 Carlos Montes reacted to a series of text messages he received from his cousin, 

who was a Norteño gang member. Montes walked toward the front door as Criss 

Guerrero followed. They got into an argument with someone, and Montes threw the first 

punch. Most of the eyewitness testimony suggests that Aztek was the victim. Guerrero 

grabbed him and put him in a headlock. 

 Meanwhile, defendant had been sitting across the ballroom. Many of the 

partygoers gravitated to the fight, as did defendant. He walked across the room and shot 

Montes and Zambrano. There was evidence to suggest there may have been a second 

shooter, but defense counsel conceded that defendant shot both victims. Then he ran, 

discarded the gun, and hid from the police. He was found several days later hiding in a 

closet. 

 Defendant’s girlfriend, Rocio Ramirez, testified that she drove defendant and 

Aztek to Galt to try to recover the gun around 2:00 a.m. on November 29, but when they 

saw a number of police officers they left. Aztek’s face was swollen. He told Ramirez he 

had been jumped and that defendant had shot the two people who jumped him, one in the 

head and one in the stomach. Both Ramirez and Aztek tried to hide defendant. 

 A gang expert testified to the culture of gangs in Sacramento and the ongoing 

rivalry between Norteños and Sureños. He explained that a gang member would be 

expected to come to the defense of a fellow gang member who was being beaten. 

DISCUSSION 

 “ ‘Under the doctrine of imperfect self-defense, when the trier of fact finds that a 

defendant killed another person because the defendant actually, but unreasonably, 
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believed he was in imminent danger of death or great bodily injury, the defendant is 

deemed to have acted without malice and thus can be convicted of no crime greater than 

voluntary manslaughter.’ [Citation.] ‘Imperfect self-defense obviates malice because that 

most culpable of mental states “cannot coexist” with an actual belief that the lethal act 

was necessary to avoid one’s own death or serious injury at the victim’s hand. 

[Citation.]’ [Citation.]” (People v. Randle (2005) 35 Cal.4th 987, 995 (Randle), 

overruled on another point by People v. Chun (2009) 45 Cal.4th 1172, 1201.) 

 In Randle, the Supreme Court applied the same rationale to imperfect defense of 

others. In other words, “if a killing is committed by someone who actually but 

unreasonably believes he is acting under the necessity of defending another person from 

imminent danger of death or great bodily injury, then the killing is voluntary 

manslaughter, not murder, because the killer is not acting with malice.” (Randle, supra, 

35 Cal.4th at p. 995.) 

 Defendant requested the following pinpoint instruction: “If you find that the 

defendant believed that members of the Norte[ñ]o criminal street gang had threatened or 

harmed others in the past, you may consider that information in evaluating the 

defendant’s beliefs.” (Italics omitted.) The court explained on the record that defense 

counsel had participated in a discussion of the jury instructions, he was satisfied with the 

changes that were made, and he stipulated to the instructions, including a modified 

CALCRIM No. 571. According to the stipulation, the jury was instructed: 

 “A killing that would otherwise be murder is reduced to voluntary manslaughter if 

the defendant killed a person because he acted in imperfect self-defense or imperfect 

defense of another. 

 “If you conclude the defendant acted in complete self-defense or defense of 

another, his action was lawful and you must find him not guilty of any crime. The 

difference between complete self-defense or defense of another and imperfect self-
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defense or imperfect defense of another depends on whether the defendant’s belief in the 

need to use deadly force was reasonable. 

 “The defendant acted in imperfect self-defense or imperfect defense of another if: 

 “1. The defendant actually believed that he or someone else was in imminent 

danger of being killed or suffering great bodily injury; 

 “and 

 “2. The defendant actually believed that the immediate use of deadly force was 

necessary to defend against the danger; 

 “but 

 “3. At least one of those beliefs was unreasonable. 

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

is believed to be. 

 “In evaluating the defendant’s beliefs, consider all the circumstances as they were 

known and appeared to the defendant. 

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

reasonably associated with Carlos Alonso Montes and Efrain Zambrano, you may 

consider that threat in evaluating the defendant’s beliefs. 

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

defendant was not acting in imperfect self-defense or imperfect defense of another. If the 

People have not met this burden, you must find the defendant not guilty of murder.” 

 On appeal, defendant is no longer satisfied with the modification. Thus, the case 

boils down to whether the language “If you find that the defendant received a threat from 

someone else that he reasonably associated with Carlos Alonso Montes and Efrain 

Zambrano, you may consider that threat in evaluating the defendant’s beliefs” was a 

sufficient replacement for the language he initially suggested, “If you find that the 

defendant believed that members of the Norte[ñ]o criminal street gang had threatened or 
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harmed others in the past, you may consider that information in evaluating the 

defendant’s beliefs.” 

 Defendant correctly points out that threats by a group with whom a victim is 

affiliated are relevant to a defendant’s state of mind. As the Supreme Court held in 

People v. Minifie (1996) 13 Cal.4th 1055 (Minifie): “ ‘A person claiming self-defense [or 

defense of another] is required to “prove his own frame of mind,” and in so doing is 

“entitled to corroborate his testimony that he was in fear for his life by proving the 

reasonableness of such fear.” [Citation.] The defendant’s perceptions are at issue, and 

threats from a family and its friends may color a person’s perceptions of that group no 

less than threats from an individual may color a person’s perceptions of that individual. 

A defendant who testifies that he acted from fear of a clan united against him is entitled 

to corroborate that testimony with evidence “tend[ing] in reason to prove” that the fear 

was reasonable. [Citation.] Threats from the group on the defendant’s life would 

certainly tend in reason to make the defendant fearful. This is especially true where the 

group has a reputation for violence, and that reputation is known to the defendant. Such 

threats are relevant to the defendant’s state of mind—a matter “of consequence to the 

determination of the action” (ibid.)—and the trier of fact is entitled to consider those 

threats along with other relevant circumstances in deciding whether the defendant’s 

actions were justified.” (Minifie, at pp. 1065-1066.) 

 We also agree with defendant that the record belies the Attorney General’s 

statements that there is no evidence defendant’s knowledge of Norteño members’ 

resorting to violence in the past was relevant to the jury’s determination of his belief at 

the time of the shooting. The Attorney General unduly minimizes the role of the 

Norteño/Sureño rivalry and the gang behavior that permeated the quinceañera. If, in fact, 

members of a Norteño gang had made threats against defendant or his friend Aztek, the 

threats would be relevant to a determination of defendant’s belief that he or Aztek was in 

grave or mortal danger. And the record certainly supports defendant’s argument that 
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gang taunts, signs, and customary gang behavior preceded the fight, all of which might 

have factored into defendant’s actual, although unreasonable, belief. 

 Yet the evidence is not exactly what defendant would have us believe and 

certainly not of the caliber presented in Minifie. In Minifie, a member of the “ ‘ “Knight 

crowd” ’ ” had killed defendant’s friend and defendant had received a threat that he 

“ ‘ “was next.” ’ ” (Minifie, supra, 13 Cal.4th at p. 1067.) While the “Knight crowd” 

may be analogous to the Norteños, defendant does not offer any specific threat he 

received. The question as to whether his generalized knowledge and understanding of 

Norteño behavior or even his observations of the gang’s taunting at the quinceañera 

constitute the type of antecedent threat recognized in Minifie is debatable. But it is a 

debate we need not resolve in this case. 

 Here the antecedent threat issue was telegraphed for the jury, albeit without 

naming the Norteños but by alerting the jurors that if defendant had received “a threat 

from someone else that he reasonably associated with Carlos Alonso Montes and Efrain 

Zambrano, [they could] consider that threat in evaluating the defendant’s beliefs.” This 

admonition was in the context of a comprehensive explanation of imperfect self-defense 

and defense of others. We reject defendant’s contention, therefore, that the court 

committed reversible error by delivering a modified instruction that thereby failed to 

explain to the jury the essence of his defense. 

 Moreover, defense counsel argued the “threatening behavior by guys in red,” 

based on defendant’s knowledge of “Norte[ñ]o intimidation and threats,” meant that 

“a threat to one gang member is a threat to all.” He conceded his “young,” “tipsy” client 

made a “stupid, stupid decision,” but he put that decision squarely in the context of “this 

long history of violence between people that are perceived as gang members.” While 

argument by counsel cannot substitute for omitted instructions, we can consider argument 

in our assessment of prejudice. Here the testimony by many of the witnesses to the 
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shooting attested to the gang behavior that permeated the quinceañera throughout the 

evening, including gang taunts, gang signs, and gang colors. 

 Thus, defendant was not denied his right to present his defense to a properly 

informed jury, and his lawyer was not constitutionally deficient for acceding to the 

modified instruction, because we conclude beyond a reasonable doubt that in the absence 

of the modification of the pinpoint instruction there would not have been a different 

outcome for defendant. In this case, there is no prejudice even if we assume that the 

more rigorous evaluation of prejudice under Chapman v. California (1967) 386 U.S. 18 

[17 L.Ed.2d 705] applies. 

 The jury was properly instructed on voluntary manslaughter, including both 

perfect and imperfect self-defense and defense of another. In addition, they were 

instructed that they could consider any threats defendant might have received that were 

associated with the victims. His lawyer put those threats in the context of the long 

history of gang violence and defendant’s knowledge of Norteño threats. As a result, we 

reject the notion that either the court committed reversible error per se by failing to 

instruct on an element of the crime or that defendant might have achieved a more 

favorable outcome if the court had specifically identified threats by Norteños in its 

instruction on imperfect defense of another. In the absence of prejudice, we affirm the 

judgment. 

DISPOSITION 

 The judgment is affirmed. 

 RAYE , P. J. 

We concur: 

 HULL , J. 

 HOCH , J.