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Filed 12/29/20 P. v. Reuschel 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication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

(Shasta)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

RALF EDWARD REUSCHEL,

Defendant and Appellant.

C084423

(Super. Ct. No. 15F2507)

In May 2015 a camper’s dog discovered the decomposing body of Timothy 

Mitchell in a pit. Defendant Ralf Edward Reuschel, Mitchell’s uncle, was charged with 

murder. A jury found defendant guilty and the court sentenced defendant to 25 years to 

life for murder, plus an additional 25 years to life for the special allegation that defendant 

used a firearm in the commission of the murder. Defendant appeals, arguing instructional 

error, ineffective assistance of counsel, and sentencing error. In a supplemental brief, 

defendant requests remand to permit the trial court to exercise its discretion to strike the 

firearm enhancement. We shall remand for the trial court to exercise its discretion as to 

the firearm enhancement, but in all other respects we shall affirm the judgment.
2

FACTUAL AND PROCEDURAL BACKGROUND

An information charged defendant with murder with the special allegation that 

defendant intentionally and personally used a firearm in commission of the murder. (Pen. 

Code, §§ 187, subd. (a), 12022.53, subd. (d).)1 The following evidence was introduced at 

the jury trial.

The Murder

On May 3, 2015, a camper’s dog discovered the body of Mitchell in French Gulch, 

near Cline Gulch Road. The body lay in an abandoned pit, covered by a garbage bag. 

Officers found the body blistered and discolored due to drying and the beginnings of 

decomposition. The blistering indicated Mitchell had been dead for more than a few 

hours. The body bore no identification, but fingerprint analysis matched the prints taken 

to those of Mitchell.

Officers also discovered faint tire impressions near the body, indicating a vehicle 

had turned around. The crime scene yielded no weapons and no signs of a struggle. It 

appeared Mitchell had been killed elsewhere and his body dumped in the pit.

An autopsy revealed heavy maggot activity, with small maggots, large maggots, 

and flies. Mitchell’s head had a bullet hole in the upper left side.

Officers spoke to Charles Adney, Mitchell’s uncle and defendant’s brother. 

Adney told Detective Kyle Wallace that he sent Mitchell to stay with defendant at an RV 

park.

Detectives went to defendant’s trailer. Detective Wallace spoke to defendant’s 

wife, Kimberlee Reuschel, and Sergeant Brian Jackson spoke with defendant.

1

 All further statutory references are to the Penal Code unless otherwise designated.
3

Interviews with Defendant

Defendant agreed to speak with Sergeant Jackson about Mitchell. According to 

defendant, in late April 2015, Mitchell arrived at defendant’s trailer. One evening, after 

drinking, Mitchell became upset and violent. Mitchell believed he was a “Dark Lord 

Sith,” a Star Wars character. He said he could “destroy everybody on the planet.” 

Mitchell told defendant that when he drinks a lot of beer he becomes “the Sith.” Mitchell 

exhibited this behavior even when not drinking.

Later in the evening, as defendant tried to sleep, Mitchell asked for marijuana. 

After defendant told him he could not get any, Mitchell grabbed defendant, shoved him 

down, grabbed him by the neck, and said he would kill him and everybody else. 

Kimberlee was asleep at the time. Mitchell told defendant he was going to his parents’ 

house.

Defendant advised Mitchell against going out that late at night because defendant 

had been beaten up in the area in 2014. He had been hit with a baseball bat that split his 

head open. He did not know who had attacked him.

Mitchell left on foot. Defendant did not follow because he was scared by his 

experience in 2014. Defendant did not know why Mitchell would be in French Gulch. 

Defendant went to French Gulch about once a month and had been there two weeks 

before to pick up his mail at the post office. He had not been on the road where Mitchell 

was found for over a year.

During a break in his interview with defendant, Sergeant Jackson conferred with 

Detective Wallace about the latter’s conversation with Kimberlee. Wallace’s information 

conflicted with defendant’s version of events.

Sergeant Jackson questioned defendant about the inconsistencies. Defendant 

admitted he had also been drinking that night. He and Mitchell walked to a gas station 

and bought more beer. On the way home, Mitchell pulled out a gun, frightening 
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defendant who did not know Mitchell had a gun. Mitchell fired shots at nearby lights 

until police arrived.

The duo headed back to defendant’s trailer and Mitchell began talking about the 

Sith again. Mitchell grabbed defendant by the neck and said, “I’ll blow your fuckin’ 

brains out.” Defendant bled where Mitchell grabbed him and went into the bathroom to 

stop the bleeding. When defendant came out of the bathroom, he told Mitchell he was 

going to bed. Mitchell overpowered defendant and shoved him to the ground. While he 

was in the bathroom, Mitchell shot at him. Defendant was terrified and asked Mitchell if 

he was out of his mind. Mitchell left.

After the on-site interview concluded, defendant and Sergeant Jackson spoke 

again at the police station. Defendant said after Mitchell left, defendant took his pills.

Defendant believed Mitchell’s gun was a .380 caliber based on the gun’s size. 

Defendant did not know who owned the gun or where it was now. Defendant’s guns

were in storage.

Sergeant Jackson asked defendant, “Why Cline Gulch?” Defendant said, “it was 

self-defense.” He told Jackson his previous comments were true, but he could not 

remember how he got the gun away from Mitchell. Defendant and Mitchell struggled 

with the gun after he came out of the bathroom. Mitchell was shot as they struggled over 

the gun, and as he tried to run defendant shot him again. Defendant told Jackson, “I 

thought he was gonna come at me again . . . I didn’t know what was gonna happen.” 

Defendant took his pills and went to bed.

When defendant woke up the next morning, he wondered what had happened. 

Mitchell’s body lay face up on the floor. Defendant could not move the body, so it 

stayed there for two days. Kimberlee asked defendant to get it out of the trailer because it 

was “creepin’ [her] out.” For several days, defendant tried to find a place to leave 

Mitchell’s body. After Kimberlee suggested French Gulch, defendant took the body 

there and left it in a ditch.
5

After the police first arrived at the trailer, defendant lied because he thought, 

“Well, why did I do that then?” He put the gun in storage and threw away the four 

casings from shots fired inside the trailer. Defendant said he had been sitting down when 

he shot Mitchell as Mitchell headed to the door. The shots woke up Kimberlee, who 

“basically went into shock.”

Sergeant Jackson told defendant that Kimberlee said she woke up to the gunshots 

and saw defendant standing over Mitchell. Defendant pointed a gun at Mitchell and fired 

at him as Mitchell lay on the ground. When Jackson asked defendant if Kimberlee was 

telling the truth, defendant responded, “she’s tellin’ . . . the truth.” Defendant stated he 

had fired more shots at Mitchell on the floor. Mitchell began moving and appeared to be 

trying to get up.

Defendant said his son’s .357-caliber handgun was in the trailer. According to 

defendant, Mitchell had grabbed him by the neck and put the gun to defendant’s head. 

After they separated, defendant went into the bathroom. Mitchell fired shots at defendant 

and the two wrestled over the gun. Defendant fell down and grabbed the gun. He fired at 

Mitchell, then stood up and fired at Mitchell again while he lay on the ground.

The following day, Detective Wallace and Sergeant Jackson met with defendant 

while he was in custody. Defendant accompanied the police to show them where he 

stored the gun he shot Mitchell with. The trip was recorded. Defendant said, on the night 

of the shooting, Mitchell grabbed his head, put a .357-Magnum revolver to his head, and 

said, “I’ll blow your fucking brains all over this trailer.” Defendant feared that Mitchell 

might accidentally shoot Kimberlee sleeping nearby.

In addition, defendant said he was under the influence of alcohol and pills the 

night of the shooting. Defendant’s drinking contributed to the events. Detective Wallace 

asked defendant if alcohol played a role in his shooting at Mitchell when he walked 

towards the door and when he lay on the ground. Defendant responded: “I’m pretty sure 

it was the alcohol, ‘cause that’s not the way I am.” He stated, on the night of the 
6

shooting, Mitchell was “insisting that he was this . . . the dark side guy.” Mitchell 

threatened him, saying, “I can kill you,” pulled out defendant’s .357 handgun, and shot at 

defendant through the bathroom. Defendant “came down and jumped him” and he 

believed he fired another round.

Defendant told Mitchell to leave and as Mitchell walked out the door, defendant 

fired two more shots. Mitchell fell to the ground, but defendant did not know if he had 

hit him. Defendant saw Mitchell move and believed he fired another shot. Defendant 

recalled firing “three fast ones.” Before the final shot, defendant believed Mitchell was 

moving. Defendant feared Mitchell was “playing possum” and waiting for defendant to 

let his guard down. Mitchell tried to get up and defendant knew he had shot him. 

Defendant stated Kimberlee ran to the bathroom, but later stated he couldn’t remember 

Kimberlee being in the bathroom or telling her to hang up when she called 911.

Defendant later stated Mitchell grabbed him by the throat and threw him to the 

ground. The pair struggled and Mitchell grabbed him by the back of the neck and held a 

gun to his head. Mitchell had an “evil look” and told defendant, “I’ll blow your fuckin’ 

brains all over . . . this trailer.” Frightened by Mitchell’s evil look, defendant told him to 

leave. Mitchell began to walk away, but defendant did not know where the gun was.

Mitchell got up, but defendant could not see if he had the gun. Defendant thought 

this was when he grabbed his Glock. He did not know where the .357 was, but he 

thought Mitchell had it. When Mitchell walked to the door, defendant fired three shots. 

Mitchell fell and defendant could only see his back. Mitchell moved and tried to get up 

and defendant fired a third shot and Mitchell dropped. Before the shooting Mitchell had 

been moaning, but after the shooting there was silence.

Kimberlee’s Testimony

At trial, the jury heard Kimberlee’s testimony from the preliminary hearing, due to 

Kimberlee’s death in September 2015. Kimberlee and defendant owned more than 40 
7

firearms, most of them in storage. They kept some in their trailer, including a Glock 

nine-millimeter handgun, a rifle, and a .357 handgun. Defendant kept the Glock near his 

bed, the rifle on the sofa bed, and the handgun might have been under the dinette bed. 

Defendant was in charge of the guns.

Mitchell was 32 at the time of his death, and had previously visited them as a 

teenager. The couple kicked him out after he used a BB gun to shoot at children coming 

home from school. They told him never to come back. However, in April 2015 they 

arranged for Mitchell to stay with them in their trailer.

Mitchell had been with the couple for three days before the murder. Defendant 

showed Mitchell his nine-millimeter handgun, the rifle, and the other handgun. 

Kimberlee never saw Mitchell with a weapon.

Defendant’s drinking impacted his behavior. Light drinking made him silly, but 

he became belligerent, mean, and evil when he drank too much. Defendant would call 

Kimberlee stupid and say that she was “no good for nothing.” Kimberlee described his 

personality change when drinking as “Jekyll and Hyde.”

The evening of the shooting, Mitchell and defendant were outside the trailer 

drinking a lot of beer. Kimberlee was in bed when they came back inside the trailer. She 

went to sleep around 2:00 a.m., woke up when she heard the trailer door open, and woke 

up again when she heard Mitchell tell defendant to get off his stomach because defendant 

was sitting on him. In bed, Kimberlee could only see defendant’s head. She went back 

to sleep.

A gunshot woke Kimberlee up and she saw Mitchell lying on the ground with 

defendant standing over him with a gun in his hand. Defendant said Mitchell moved and 

he shot Mitchell in the head. Defendant held a gun. Mitchell was unarmed and 

Kimberlee did not see him move.

Kimberlee yelled at defendant to stop and asked him why. She described 

defendant’s face as blank and he looked like a stranger. Defendant shot again and 
8

Kimberlee again asked why. No more than five minutes passed between the two shots. 

Kimberlee never heard Mitchell threaten defendant.

Kimberlee ran into the bathroom and began smoking. She called 911, but 

defendant told her to hang up. Defendant threatened to kill her. Afraid of defendant, 

Kimberlee hung up the phone. Years earlier, defendant had thrown something at 

Kimberlee, splitting her lip open. This was the only time he physically abused her.

Testimony of Defendant’s Son Christopher

Mitchell was killed on April 29, 2015. In the first week of May, defendant’s son 

Christopher went to a barbeque at defendant’s trailer. Christopher noticed items in the 

trailer that did not belong to his parents. Defendant said they belonged to Mitchell, but 

that Mitchell got mad and had gone to stay elsewhere. Mitchell was going to send for his 

belongings.

Christopher also saw two pieces of duct tape on the back of the trailer. Defendant 

told him not to worry about it. Defendant said Mitchell got drunk one night and shot the 

holes in the bathroom wall with his own gun. He asked Christopher not to talk about it 

because the neighbors were asking questions. When Christopher asked if defendant had 

called the police, defendant said Mitchell had left with his adoptive parents.

Defendant had bandages and scratches on his arms and legs. Christopher asked 

about them and defendant said Mitchell was drunk one night and became violent. 

Mitchell picked defendant up by his throat, threw him on the ground, and roughed him 

up. Christopher asked again why defendant did not call the police, and defendant told 

him not to worry about it. Defendant said he asked Mitchell to leave and Mitchell 

became angry and left. Again Christopher suggested defendant call the police and 

defendant again replied, “don’t worry about it.” As the barbeque wound down, defendant 

began to get drunk. Christopher left because defendant “usually turns into something 

bad” when he drinks, a “[b]lackout kind of violent.”
9

Christopher recounted defendant had been drinking for many years; drinking 

changed defendant’s behavior. The more defendant drank, traumatic memories of the 

past would begin to emerge. Defendant would go from tipsy to physical and violent. 

Christopher stated defendant would wave guns around and tried to shoot guns in the 

house. Defendant once shot a bottle inside the house. He would also throw and break 

things. When Christopher tried to stop him from driving, defendant would get physical 

and Christopher would back down.

Defendant once tried to cut the family cat’s head off while drunk. Kimberlee tried 

to pull the pruning shears away from him and defendant accidentally hit her in the head 

with them. In 2014 defendant threatened to go into the trailer for his gun to shoot 

Christopher’s girlfriend. Defendant then punched Christopher. When Christopher tried 

to help him up, defendant punched him again.

Autopsy and Subsequent Investigation

At the time of the autopsy, Mitchell’s body had moderate decomposition and 

extensive insect activity. Mitchell had a gunshot wound on the left side of his head. The 

bullet recovered was from the nine-millimeter family of ammunition. He also suffered 

two other gunshot wounds: one to the left upper chest and one to his right upper arm.

The decomposition of the body prevented an accurate of assessment of any lesser 

injuries. The examination revealed no visible fractures on Mitchell’s fingers or hands to 

indicate hitting or punching. Nor did Mitchell have deep tissue bruises that might result 

from blunt force impact. A blood sample revealed an ethanol level of 0.169 percent.

Mitchell died from gunshot wounds to the chest and head. It was very likely he 

was shot in the chest before being shot in the head. The forensic pathologist believed 

Mitchell was alive at the time he suffered each gunshot wound.

On May 9, 2015, defendant accompanied Detective Wallace and Sergeant Jackson 

to a storage unit for him to show them the nine-millimeter gun. After defendant showed 
10

them the gun’s location, they retrieved the gun. Defendant admitted it was the gun used 

to shoot Mitchell.

An inspection of defendant’s trailer revealed two pieces of white duct tape on the 

back. There were pieces of duct tape in the trailer’s bathroom and the shower wall was 

bowed out a little and cracked. Officers found a bullet, later determined to be a nine 

millimeter, on the floor inside the wall. Removal of the duct tape revealed holes in the 

back of the trailer. The angle of beveling of one of the holes was in an upward direction.

Defense Case

Charles Adney’s Testimony

Mitchell stayed with defendant’s brother Adney from February through the end of 

April prior to the shooting. According to Adney, Mitchell made comments about being 

the “Sith” or the “Dark Lord” from Star Wars. He made the comments when both drunk 

and sober.

In March 2015 Mitchell and Adney were at restaurant when Mitchell dropped food 

in his lap. Mitchell became upset and began screaming and cursing. He told other 

customers to mind their own business. When another customer stood up to say 

something, Mitchell told him to sit down or “I’m gonna put you back down.” Adney told 

Mitchell to stop and that they should leave. As restaurant employees gathered, Mitchell 

continued screaming and cursing. Mitchell had been drinking at the restaurant.

Mitchell lived with Adney and then moved in with defendant and Kimberlee to 

help them out with their computer. Adney did not tell them about Mitchell’s strange 

behavior.

When Adney visited defendant, he noticed Kimberlee made most of the decisions. 

Although defendant was very smart, he had trouble making decisions. Defendant was not 

impulsive. Defendant quit drinking for a long time, but Kimberlee refused to quit. After 
11

Mitchell disappeared, Adney asked what had happened. Kimberlee answered all the 

questions and said they had nothing to do with Mitchell’s death.

Pathologist Testimony

Dr. Terri Haddix, a pathologist, reviewed Mitchell’s autopsy. Dr. Haddix testified 

Mitchell would have died from his chest wound in a couple of minutes. Mitchell would 

have collapsed immediately from the head wound and would have died very quickly. 

The extent of decomposition made it difficult to determine if Mitchell suffered any 

bruising or had gunshot residue on his body. Injuries may be more difficult to see with 

the passage of time and bruises may become “lost” or indistinguishable due to 

decomposition discoloration.

Dr. Haddix reviewed photographs of defendant’s injuries. The photographs 

revealed “blood blisters” on the fleshy parts at the base of defendant’s right thumb. Such 

injuries do not require a great amount of force and can be caused by pinching. Bruising 

also appeared on defendant’s left forearm near his hand, right shoulder, and chest.

All defendant’s injuries could have occurred on the same day as the result of an 

altercation. The injuries on his left forearm and right hand could have been sustained as 

“defensive wounds,” as a result of warding off an attack. However, other injuries, such 

as those on defendant’s back and chest, were not defensive in nature. Dr. Haddix 

testified, “It’s kind of hard for me to envision how . . . one would be protecting an area of 

their body by putting their chest or their back in the way or something along the lines like 

that.”

Other Evidence

An investigator for the public defender’s office examined the trailer after it left 

police custody and had been repurchased. Inside the trailer he took measurements to 

establish the trajectory pattern for two of the bullets. The investigator testified he was 

“pretty certain” two of the bullets traveled upwards.
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In August 2014 defendant was taken by ambulance to the hospital for a head 

injury. Defendant suffered an abrasion to his head and facial swelling. The doctor 

believed the injuries could have been caused by an altercation. Defendant, who had a 

0.26 percent blood-alcohol level, was uncertain what had happened. The doctor noticed 

no signs of strangulation.

The manager of the trailer park testified defendant was always friendly and he 

never saw him consume alcohol. He heard reports of defendant’s intoxication from 

others and confronted defendant. Defendant said he had too many beers and the manager 

could see he was kind of beat up.

The parties stipulated that on April 29, 2015, in the early morning, police received 

multiple 911 calls reporting gunshots in the area of Lake Boulevard in Redding. An 

investigation the following day revealed a hole in the side of a building consistent with a 

bullet hole. The bullet appeared to have been fired from across the street.

Verdict and Sentencing

The jury found defendant guilty of first degree murder and found true the special 

allegation. The court sentenced defendant to 25 years to life for murder, plus an 

additional and consecutive term of 25 years to life for the special allegation. Defendant 

filed a timely notice of appeal.2

DISCUSSION

I

Instructional Error

Defendant argues the trial court erred in failing to instruct the jury that it could 

consider evidence of defendant’s intoxication in deciding whether he unreasonably 

believed he had to defend himself.

2

 We grant defendant’s request for judicial notice filed October 18, 2017. 
13

Background

Defense counsel requested a modified version of CALCRIM No. 571 on imperfect 

self-defense that the prosecution had the burden of proving beyond a reasonable doubt 

that defendant did not believe he was acting in self-defense or defense of another and that 

he did not actually believe the immediate use of deadly force was necessary. The court 

denied the requested modifications. Under CALCRIM No. 571 as given, the court 

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.” The defendant acted in imperfect self-defense or 

imperfect defense of another if: “1. The defendant actually believed that he or 

Kimberlee Reuschel 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 danger; [¶] BUT [¶] 3. At least one of 

those beliefs was unreasonable.”

Defense counsel requested CALCRIM No. 625 on voluntary intoxication. The 

court instructed the jury with a modification of CALCRIM No. 625 without an objection 

from defendant. The court instructed: “You may consider evidence, if any, of the 

defendant’s voluntary intoxication only in a limited way. You may consider that 

evidence only in deciding whether the defendant acted with an intent to kill, the 

defendant acted with deliberation and premeditation, or the defendant intentionally 

discharged a firearm.”

The court further instructed: “You may not consider evidence of voluntary 

intoxication for any other purpose.”

Discussion

According to defendant, there was ample evidence defendant was very intoxicated 

and he unreasonably believed he had to defend himself. However, the instruction given 
14

limited the evidence of defendant’s intoxication and precluded the jury from considering 

defendant’s intoxication in deciding whether he acted in self-defense. “Given the strong 

evidence of [defendant’s] intoxication and the evidence Mitchell acted violently before 

he was shot, the jury likely would have concluded that due to his intoxication [defendant] 

acted in the unreasonable belief he had to defend himself against imminent peril.”

The trial court must instruct, even in the absence of a request, on the general 

principles of law relevant to the issues raised by the evidence. These general principles 

refer to those principles closely and openly connected with the facts before the court and 

necessary to the jury’s understanding of the case. (People v. Sedeno (1974) 10 Cal.3d 

703, 715, overruled on another ground in People v. Breverman (1998) 19 Cal.4th 142, 

165.) Before giving an instruction, the court must find legally sufficient evidence in the 

record to support the finding or inference that the instruction permits. (People v. Hannon 

(1977) 19 Cal.3d 588, 597.) 

We review the court’s ruling on instructions de novo, independently reviewing the 

record when the trial court refuses an instruction requested by the defendant based on a 

lack of substantial evidence. (People v. Manriquez (2005) 37 Cal.4th 547, 581-584.) We 

uphold the trial court’s ruling unless the record contains substantial evidence to support 

the requested instruction. (People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1269-1270.)

Under section 29.4, “[e]vidence of voluntary intoxication shall not be admitted to 

negate the capacity to form any mental states for the crimes charged, including, but not 

limited to, purpose, intent, knowledge, premeditation, deliberation, or malice 

aforethought . . .” (§ 29.4, subd. (a), italics added) but “is admissible solely on the issue 

of whether or not the defendant actually formed a required specific intent, or, when 

charged with murder, whether the defendant premeditated, deliberated, or harbored 

express malice aforethought” (id., subd. (b), italics added). Our Supreme Court has held

that, “Because harbored implied malice does not appear in this enumerated list, section 

29.4 prohibits the use of evidence of voluntary intoxication to establish that a defendant 
15

acted without implied malice.” (People v. Soto (2018) 4 Cal.5th 968, 975; see People v. 

Turk (2008) 164 Cal.App.4th 1361, 1375 [evidence of “voluntary intoxication [is] 

inadmissible to negate implied malice in cases in which a defendant is charged with 

murder”].) The trial court did not err in instructing otherwise. 

In any event, any error was harmless. The evidence of defendant’s actions 

supporting a finding of self-defense was scant and provided largely by defendant. Over a 

series of interviews, defendant’s version of events radically shifted and pivoted. Initially, 

defendant stated Mitchell, who had been drinking heavily, became violent. He shoved 

defendant, told him he wanted to kill him, and then left over defendant’s protestations. 

Defendant did not follow Mitchell and did not know why Mitchell was in French Gulch.

After detectives informed defendant of Kimberlee’s conflicting version of events, 

defendant said both he and Mitchell had been drinking. As they walked to the trailer 

after buying beer, Mitchell pulled out a gun and shot out some streetlights. In the trailer, 

Mitchell began talking about the Sith, grabbed defendant’s neck, and threatened to shoot 

him. Bleeding, defendant went into the bathroom to stop the bleeding. When he came 

out, Mitchell shoved him. Defendant subsequently told detectives Mitchell shot at him 

while he was in the bathroom.

After relocating to the police station, defendant began asking about self-defense 

and then stated, “it was self-defense.” Defendant remembered struggling with Mitchell 

over the gun and then Mitchell shot him. Mitchell got shot during the struggle. As 

Mitchell attempted to run out of the trailer, defendant shot him again. Defendant stated, 

“somethin’ in me snapped.” Defendant went to bed and found Mitchell’s body the next 

morning. Subsequently, defendant admitted firing another round into Mitchell while he 

lay by the door. Mitchell was moving and trying to get up.

In an interview the following day, defendant raised the issue of the influence of 

alcohol and “pills.” He stated his drinking influenced his actions. According to 
16

defendant, alcohol was the reason he shot Mitchell; “I’m pretty sure it was the alcohol, 

‘cause that’s not the way I am.”

The jury had before it a shifting narrative. First, Mitchell overpowered defendant, 

grabbing his neck; this evolved into Mitchell holding a gun to defendant’s head and later 

into Mitchell shooting at defendant. Initially Mitchell left the trailer unharmed; this 

evolved into defendant shooting him in the trailer, first just during a struggle over a gun, 

then firing again into a prone Mitchell. 

Given defendant’s ever-changing version of events, it strains credulity to conclude 

there is a reasonable probability the jury would have found defendant believed he was 

defending himself out of necessity if the court had given the instruction on intoxication in 

connection with imperfect self-defense. In addition, testimony of Kimberlee and 

Christopher portrayed defendant as prone to violence when drinking. The testimony 

regarding Mitchell’s drinking and threatening behavior stemmed from an incident in 

2002. 

The court instructed the jury that defendant acted in imperfect self-defense if he 

actually believed he was in imminent danger and believed immediate use of deadly force 

was necessary to defend against the danger, but at least one of these beliefs was 

unreasonable. The jury rejected this defense, finding defendant guilty of first degree 

murder. If the jury believed Mitchell presented an imminent danger to defendant, it 

would have rejected a first degree murder conviction. 

II

Ineffective Assistance of Counsel

Defendant contends defense counsel performed ineffectively by failing to request 

an instruction on the relationship between provocation and premeditation. The defense 

presented at trial was that defendant was guilty of voluntary manslaughter because he 

acted in the heat of passion or in an unreasonable belief in the need for self-defense. 
17

Therefore, according to defendant, counsel’s failure to request the instruction constituted 

ineffective assistance.

The instruction in question, CALCRIM No. 522, states: “Provocation may reduce 

a murder from first degree to second degree and may reduce a murder to manslaughter. 

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

conclude that the defendant committed murder but was provoked, consider the 

provocation in deciding whether the crime was first or second degree murder.” 

To establish ineffective assistance of counsel, a defendant must show counsel’s 

performance was deficient and fell below an objective standard of reasonableness, and it 

is reasonably probable that a more favorable result would have been reached absent the 

deficient performance. (Strickland v. Washington (1984) 466 U.S. 668, 687-688 

[80 L.Ed.2d 674, 693].) A reasonable probability is a “probability sufficient to 

undermine confidence in the outcome.” (Id. at p. 694.)

To perform competently, counsel should realistically examine the evidence at 

issue and pursue those avenues of defense that, to their best and reasonable professional 

judgment, seem appropriate under the circumstances. Defense counsel must investigate 

all defenses, explore the factual bases for defenses, and evaluate the applicable law. 

(People v. Freeman (1994) 8 Cal.4th 450, 509; People v. Maguire (1998) 67 Cal.App.4th 

1022, 1028.)

We accord trial counsel’s tactical decisions substantial deference and do not 

second-guess counsel’s reasonable tactical decisions. (People v. Maldonado (2009) 

172 Cal.App.4th 89, 97.) We reverse only if the record affirmatively discloses trial 

counsel could have had no rational tactical purpose for the challenged act or omission. 

(People v. Lucas (1995) 12 Cal.4th 415, 436-437.) 

The trial court instructed the jury with CALCRIM No. 520, which states: “If you 

decide that the defendant committed murder, it is murder of the second degree, unless the 

People have proved beyond a reasonable doubt that it is murder of the first degree as 
18

defined in CALCRIM No. 521.” The jury also instructed with CALCRIM No. 521, 

which told the jury that to find defendant guilty of first degree murder, the People were 

required to prove he acted willfully, deliberately, and with premeditation. In addition, the 

instruction stated: “A decision to kill made rashly, impulsively, or without careful 

consideration is not deliberate and premeditated.”

According to defendant, “This is a case where there is no possible satisfactory 

explanation for counsel’s failure to request a pinpoint instruction so the jury could 

consider the evidence that [defendant] was provoked in deciding whether that 

provocation impacted the mental state of premeditation and deliberation.” Moreover, 

defendant posits it reasonably probable that had the jury been so instructed, it would have 

convicted him of second degree murder. Defendant stresses Mitchell’s violent nature, 

especially when drunk.

Here, defense counsel sought to convince the jury defendant was not guilty of first 

degree murder, but of voluntary manslaughter based on self-defense, unreasonable selfdefense, or in the heat of passion. Defense counsel may well have decided that 

requesting CALCRIM No. 522 would detract from that defense. Second degree murder 

is punishable by 15 years to life. (§ 190, subd. (a).) Voluntary manslaughter would 

result in a sentence of three, six, or 11 years. (§ 193, subd. (a).) Faced with this 

sentencing differential, defense counsel could tactically choose to forego CALCRIM 

No. 522. We find defense counsel did not perform ineffectively. 

III

Motion for a New Trial

Finally, defendant claims the trial court abused its discretion in denying his motion 

for a new trial. Defense counsel requested that the court reduce the first degree murder 

conviction to second degree homicide. According to defendant, the court abused its 
19

discretion by relying on improper factors—defendant’s actions following the murder—in 

denying the motion.

Background

At sentencing, defense counsel requested that the court find insufficient evidence 

to support first degree murder and instead find defendant guilty of second degree 

homicide under section 1181, subdivision (6). In opposing the motion, the prosecution 

pointed out that “ a cold, calculated decision to kill under premeditation and deliberation 

can be made very quickly. It doesn’t have to be a plan.”

The court denied the motion: “I think there’s ample evidence upon which the jury 

could have concluded that this was a . . . willful, deliberate and premeditated 

murder . . . .” The court noted defendant’s active efforts to conceal the killing, which 

indicated a consciousness of guilt. As for defendant, “If he was truly a victim . . . there 

wouldn’t have been any hesitance to call the police. That’s what any normal citizen 

would have done under the circumstance.” Defendant’s act of concealment and 

avoidance were “a clear indication of a consciousness of guilt.”

In addition, the court focused on defendant’s “multiple and conflicting stories, the 

obfuscation, this meandering, kind of, statement he makes where you are left with a 

strong sense of how can I make this all fit in a way that helps me, those are all indications 

of a consciousness of guilt.” The court found this another piece of substantial evidence 

supporting a finding of “cold, calculated, premeditated and deliberate first-degree 

murder.”

The court also considered Mitchell’s physical capacity during the incident: “I 

would have been stunned if the autopsy surgeon hadn’t said, he would have been down 

. . . [h]e might have been awake, but the idea of him attempting to stand up and pose any 

greater threat to your client . . . my strong impression is that there’s no chance that could 

have occurred, meaning that when your client fired . . . a coup de grâce shot into Mr. 
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Mitchell’s head, it was just further proof of the idea of this cold, calculated intent to kill 

and premeditation and deliberation.”

The court concluded that, given the totality of the evidence, there was more than 

ample evidence before the jury to conclude beyond a reasonable doubt that defendant 

committed willful, deliberate and premeditated first-degree murder. The court denied the 

motion.

Discussion

Defendant contends the trial court erred in relying on his actions after the murder 

to support its conclusion there was ample evidence of a premeditated murder. Therefore, 

the court should have granted defendant’s motion for a new trial under section 1181, 

subdivision (6) and reduced his conviction to second degree murder.

Under section 1181, subdivision (6), the court may grant a new trial when “the 

verdict or finding is contrary to law or evidence, but if the evidence shows the defendant 

to be not guilty of the degree of the crime of which he was convicted, but guilty of a 

lesser degree thereof, or of a lesser crime included therein, the court may modify the 

verdict, finding or judgment accordingly without granting or ordering a new trial.” 

The trial court possesses broad discretion in ruling on a new trial motion. We 

disturb that ruling only for a clear abuse of that discretion. (People v. Ault (2004) 

33 Cal.4th 1250, 1260.) “Such an abuse of discretion arises if the trial court based its 

decision on impermissible factors.” (People v. Knoller (2007) 41 Cal.4th 139, 156.)

The Supreme Court in People v. Anderson (1968) 70 Cal.2d 15 held a defendant’s 

efforts to cover up a crime did not support the finding that the murder was premeditated. 

According to the court: “Although this type of evidence may possibly bear on 

defendant’s state of mind after the killing, it is irrelevant to ascertaining defendant’s state 

of mind immediately prior to, or during, the killing. Evasive conduct shows fear: it 

cannot support the double inference that defendant planned to hide his crime at the time 
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he committed it and that therefore defendant committed the crime with premeditation and 

deliberation.” (Id. at p. 32.) 

The Anderson court identified three types of evidence that assist in reviewing the 

sufficiency of the evidence in support of finding premeditation and deliberation: evidence 

of planning activity, preexisting motive, and manner of killing. However, Anderson did 

not purport to establish an exhaustive list that would exclude all other types of evidence 

or combinations of evidence that could support a finding of premeditation and 

deliberation. (People v. Mendoza (2011) 52 Cal.4th 1056, 1069.)

Here, the trial court did reference defendant’s actions after the murder: his 

attempts to conceal the crime, failure to contact the police, and his multiple and 

conflicting stories about what happened. Defendant focuses on the court’s comments 

regarding postmurder conduct. However, the court also emphasized defendant’s second 

“coup de grâce” shot into Mitchell’s head as “further proof of the idea of this cold, 

calculated intent to kill and premeditation and deliberation.”

As the Supreme Court concluded: “While our comment in Anderson . . . warns 

against using evidence of a defendant’s postcrime actions and statements as the sole 

support for upholding a finding of premeditated and deliberate murder, such postcrime 

actions and statements can support a finding that defendant committed a murder for 

which his specific mental state is established by his actions before and during the crime.” 

(People v. Thompson (2010) 49 Cal.4th 79, 113.) Given the court’s reliance on 

defendant’s actions during the murder, as well as in the wake of the murder, we cannot 

find the court abused its discretion in declining to reduce defendant’s conviction to 

second degree murder. 
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IV

Section 12022.53

In a supplemental brief, defendant requests that, in light of amended section 

12022.53, we remand to the trial court to permit it to exercise its discretion to strike the 

firearm enhancement. Effective January 1, 2018, section 12022.53, subdivision (h) was 

amended to provide: “The court may, in the interest of justice pursuant to Section 1385 

and at the time of sentencing, strike or dismiss an enhancement otherwise required to be 

imposed by this section. The authority provided by this subdivision applies to any 

resentencing that may occur pursuant to any other law.” (Stats. 2017, ch. 682. § 2.) 

Defendant contends the amendment should apply retroactively to all cases not final in 

which a firearm enhancement was imposed.

The jury found defendant intentionally and personally discharged a firearm in 

killing Mitchell in violation of section 12022.53, subdivision (d). The People agree the 

amendment applies retroactively and remand is required if we find the record does not 

clearly show the trial court would not have exercised its discretion to reduce defendant’s 

sentence.

Both parties cite the language of the statute and In re Estrada (1965) 63 Cal.2d 

740, as supportive of retroactive application. Under In re Estrada, although in general 

amendments to the Penal Code do not apply retroactively, courts recognize an exception 

for amendments that reduce the punishment for a specific crime. (People v. Brown 

(2012) 54 Cal.4th 314, 323-324; People v. Francis (1969) 71 Cal.2d 66, 75-76.) In 

addition, the amendment to section 12022.53, subdivision (h) states: “The authority 

provided by this subdivision applies to any resentencing that may occur pursuant to any 

other law.” 

We agree with the parties’ determination that section 12022.53, subdivision (h) 

applies retroactively. Here the trial court, during sentencing, found evidence that 
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defendant had a calculated intent to kill with premeditation and deliberation. The court 

sentenced defendant to 25 years to life for first degree murder, with an additional 25 

years to life for the personal and intentional discharge of a firearm. The court noted that 

“probation was never an option because of the enhancement for the personal and 

intentional discharge of a firearm causing death, so I did not bother to articulate for the 

record the factors for and against granting probation, et cetera, because it was just not in 

play.” The court did not indicate it would not have exercised its discretion to reduce 

defendant’s sentence; therefore, we remand to the trial court. 

DISPOSITION

The case is remanded for the trial court to exercise its discretion regarding 

defendant’s firearm enhancement. In all other respects, the judgment is affirmed.

 /s/

RAYE, P. J.

We concur:

 /s/

ROBIE, J.

 /s/

DUARTE, J.