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Filed 7/3/24 P. v. Garcia CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

HUGO CESAR GARCIA,

Defendant and Appellant.

E079586

(Super.Ct.No. RIF1900810)

OPINION

APPEAL from the Superior Court of Riverside County. Jeffrey Prevost, Judge. 

(Retired Judge of the Riverside Super. Ct. assigned by the Chief Justice pursuant to art. 

VI, § 6 of the Cal. Const.) Affirmed. 

Valerie G. Wass, under appointment by the Court of Appeal, for Defendant and 

Appellant.

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

General, Charles C. Ragland, Assistant Attorney General, Robin Urbanski and Minh U. 

Le, Deputy Attorney Generals, for Plaintiff and Respondent.
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Defendant and appellant Hugo Cesar Garcia got involved in an altercation with 

security guards at the Dukes Bar and Grill restaurant and nightclub in Riverside (Dukes). 

During the altercation, defendant stabbed two of the security guards and, while on the 

ground being held by the security guards, reached into his waistband and grabbed a gun. 

Defendant shot the gun one time but did not hit anyone. Defendant was convicted of two 

counts of attempted premeditated and deliberate murder, assault with a firearm, and 

simple assault against two of the security guards, Edward Daffron and Dennis Richards. 

He was convicted of assault with a semiautomatic firearm and assault with a deadly 

weapon, a knife, against Austin Daniels. 

Defendant claims on appeal that (1) his conviction for attempted murder of 

Daffron is not supported by substantial evidence to support that he acted with the 

requisite intent to kill; (2) there was no evidence that the attempted murder of Daffron 

was committed willfully, deliberately, or with premeditation; (3) the jury’s true finding 

that he personally and intentionally discharged a firearm in the commission of the 

attempted murder of Daffron is not supported by substantial evidence; (4) his conviction 

for assault with a semiautomatic firearm on Daniels is not support by substantial 

evidence; (5) his conviction for the attempted murder of Richards must be reversed 

because the evidence fails to establish that he acted with the requisite intent to kill; (6) 

there was no evidence that the attempted murder of Richards was committed willfully, 

deliberately, or with premeditation; (7) the trial court erroneously instructed the jury on 

premeditation (CALCRIM No. 601); (8) his conviction for the attempted murder of 

Daffron must be reversed as the jury was instructed on an inapplicable and legally 
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incorrect kill zone theory of liability (CALCRIM No. 600); (9) the trial court committed 

reversible error when it allowed officers to narrate the surveillance video and cellular 

telephone video taken at Dukes as their testimony constituted improper opinion evidence; 

and (10) this court should conduct an independent Pitchess1review of the records of 

several Riverside police officers who were involved in the investigation.

FACTUAL AND PROCEDURAL HISTORY

A. PROCEDURAL HISTORY

Defendant was convicted of premeditated, deliberate and willful attempted murder 

(Penal Code, §§ 664, 187; count 5)2; and assault with a firearm (§ 245, subd. (b); count 6) 

against Daffron. Defendant was convicted of premeditated, deliberate and willful 

attempted murder (§§ 664, 187; count 3) against Richards. The jury found defendant not 

guilty of assault with a firearm (§ 245, subd. (b); count 4) against Richards but found him 

guilty of the lesser offense of simple assault.3 Against Daniels, he was convicted of 

assault with a semiautomatic firearm (§ 245, subd. (b); count 2) and assault with a deadly 

weapon, a knife (§ 245, subd. (a)(1); count 9). He was convicted in count 7 of possession 

of a firearm having suffered a previous felony (§ 29800, subd. (a)(1)); and in count 8 with 

possession of ammunition by a felon (§ 30305, subd. (a)).

1 Pitchess v. Superior Court (1974) 11 Cal.3d 531.

2

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

3 Count 1 was dismissed pursuant to a section 995 motion.
4

In addition, the jury found true the allegation for count 2 that defendant personally 

used a firearm. (§ 12022.5, subd. (a)). They found for counts 3 and 5 that defendant

acted with premeditation and deliberation and that he personally discharged a firearm 

within the meaning of section 12022.53, subdivision (c). For count 3, the jury also found 

true that he personally used a deadly and dangerous weapon, a knife (§ 12022, subd. 

(b)(1)) and personally inflicted great bodily injury (§ 12022.7). For count 6, the jury 

found true that defendant personally used a firearm (§ 12022.5, subd. (a)). The jury 

found true that defendant personally inflicted great bodily injury (§ 12022.7) for count 9.4 

Trial was bifurcated on the strike priors alleged against defendant. Defendant admitted to 

having suffered a prior serious and violent felony conviction (§ 667, subds. (a), (c) & 

(e)(1), 1170.12, subd. (c)(1)).

Defendant was sentenced to state prison for a determinate sentence of 39 years 

plus 4 months, plus an indeterminate sentence of 28 years to life. 

B. FACTUAL HISTORY

1. TESTIMONY FROM DUKES’S EMPLOYEES

In February 2019 Edward Daffron, who was six feet four inches tall. and weighed 

260 pounds, was a manager at Dukes. Dukes had a full restaurant, two bars and patios in 

the front and back. Dukes had music and karaoke on the weekends and was usually open 

until 2:00 a.m. Dukes had three entrances/exits and was normally staffed with four to 

4 The jury further found two aggravating factors to be true; the trial court found 

the third aggravating factor true, that defendant had served a prior prison term, after an 

admission by defendant.
5

five security guards. Security guards were not armed; they only carried flashlights. After 

9:00 p.m., security guards performed “pat downs” on entering guests to ensure no guns or 

knives were brought into the premises. No smoking was allowed in Dukes. Any 

encounters with a patron in Dukes would occur with two security guards present.

On the night of February 16, 2019, Dennis Richards had been a security guard for 

two years at Dukes. Richards was monitoring the back patio. As he was watching the 

patio area, he saw defendant, who was standing in the parking lot of an adjacent gas 

station, looking over the wall into the patio. He tried to engage him in conversation but 

defendant did not respond. Defendant was chain-smoking cigarettes and had his hands in 

the pocket of a heavy jacket he was wearing. Defendant kept staring at a group of people 

on the patio and did not speak to Richards.

Richards decided to speak with Daffron to see if anything should be done about 

defendant. Daffron went outside to talk to defendant. He was accompanied by Keith 

Childress. Childress was six feet three inches tall and weighed 335 pounds. 

Daffron asked defendant what he was doing but he did not respond. Defendant

did not look well and Daffron asked him if he needed help. Defendant said he was fine. 

Daffron noticed that defendant kept his hands in the pocket of his jacket despite it being 

warm outside. Daffron believed, based on his experience, that defendant may have a gun 

in his pocket. Defendant warned Daffron to get the “fuck away from” him and not to get 

too close to him. Childress heard defendant tell them to back up and saw defendant reach 

for his waistband. Daffron and Childress decided to leave the area. Daffron advised 

Alicia Rieben, who was working at the adjacent gas station, to call the police to have 
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defendant removed. Daffron never yelled at defendant nor did he show any weapons to 

him. 

Childress and Daffron returned to Dukes. Daffron told all of his security guards to 

keep an eye on defendant and went back inside Dukes. Daffron went to his office where 

he could see all of the surveillance cameras positioned inside and outside of Dukes.

As Daffron was watching the surveillance cameras, approximately five minutes 

after his encounter with defendant, he observed Richards run quickly from the back of 

Dukes to the front. Richards had heard a commotion at the front door and ran to help the 

other security guards. 

Austin Daniels was another security guard who was on duty that night. He had 

been working at the front door when he observed defendant about two feet inside Dukes 

smoking a cigarette. Daniels advised him he could not smoke in the bar and had to take it 

outside to finish. Defendant told Daniels “get the fuck out of my face.” Daniels asked 

him two additional times to take the cigarette outside. Defendant refused and Daniels 

grabbed the cigarette from defendant’s hand and threw it outside. Daniels advised 

defendant that he was not welcome in Dukes and that he needed to leave. When 

defendant made no movement to leave, Daniels put his forearm on defendant’s back to 

assist him in leaving. Defendant pushed back. Daniels pushed defendant outside of 

Dukes.

The jury was shown the video of the encounter between Daniels and defendant. 

Daniels described his actions in the video. Defendant could be seen standing at the 

threshold of Dukes smoking a cigarette. Daniels confronted him. Defendant just stared
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at Daniels and did nothing to comply with him. Daniels grabbed the cigarette and threw 

it outside. Defendant could be seen with something in his hand. Daniels pushed 

defendant outside of Dukes.

Daniels followed defendant outside and defendant swung at him. Defendant had a 

knife in his hand and stabbed Daniels in the chest and leg. Defendant continued to 

struggle with Daniels as he pulled defendant out to the parking lot. The jury also was 

shown exhibit 5, which was a video depicting the walkway leading up to Dukes. Daniels 

described the video. Security guards could be seen at the end of the walkway checking 

identification and patting down patrons. Defendant could be seen walking by the security 

guards and approaching the front door. As he approached the front door, he lit his 

cigarette. A few moments later, Daniels could be seen pushing defendant down the 

walkway.

Another security guard, who did not testify, came to help Daniels. At this point, 

defendant was not being held and Daniels stood near him to make sure he was leaving the 

area. Defendant did not leave and was swinging his hand at whoever was close to him. 

The other security guard pushed defendant to the ground and defendant got back up. 

Richards arrived at this point and told defendant to leave but defendant reached into his 

pocket. Richards and Daniels believed that defendant had the opportunity at this point to 

just walk away but he refused. 

Richards rushed at defendant. He grabbed his arms and tried to throw him on the 

ground. Defendant struck Richards in the back and on his neck with his fist. Richards 

did not realize that defendant was actually stabbing him with a knife. Richards was able 
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to pin defendant to the ground by getting on top of him. Defendant was facing the 

ground. Defendant then pulled a handgun from his waistband. Childress observed 

defendant pull the handgun from his waistband. Childress had also seen another gun fall 

from defendant during the struggle with Richards.

Daffron ran from his office to the front of Dukes. As Daffron got to the front, he 

could see two of his security guards wrestling with defendant. Daffron found a gun on 

the ground about four to five feet away from the altercation. He took the magazine out of 

the gun and threw it. He kept the gun.5 

Defendant tried to push the gun toward Richards’s face. Richards was able to 

move defendant’s arm and pin it to the ground. Defendant then pulled the trigger but 

Richards was able to grab his wrist and direct the gun away from his face. Richards 

continued to pin defendant to the ground and could not reach the firearm. Defendant

continued to struggle with Richards.

Daffron had observed defendant pull out the gun from his waistband. Defendant

pointed it at Daffron from his location on the ground. Daffron grabbed defendant’s hand 

and tried to peel his fingers from the gun. He also tried smashing defendant’s hand down 

on the ground to get him to release the gun. Daffron had his hand on top of defendant’s 

hand. He thought that defendant was trying to shoot him because he “pointed out 

towards my direction.” Daffron’s finger was caught behind the trigger of the gun. 

Defendant pulled the trigger and it snapped Daffron’s finger in half. Daffron was able to 

5 Daniels testified that he found the handgun about one foot from defendant and 

that he gave it to Daffron.
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push the gun away from himself just prior to it being fired by defendant. Daffron was 

finally able to get the gun away from defendant. 

The jury was shown a cellular telephone video taken by one of the patrons at the 

bar. In the video, defendant could be seen standing near three security guards. 

Defendant was standing away from the three security guards. One of the security guards 

pushed defendant to the ground but defendant immediately stood back up and swung at 

them. He had a knife in his hand. Defendant was pinned on the ground, face down. 

Defendant lifted up his head, reached into his waistband and pulled the gun from his 

waistband.

Daniels was about four feet from defendant when the gun was fired. Richards 

remained on top of defendant until the police arrived. Richards was afraid to let 

defendant up after he had stabbed him and had fired a gun. Daffron hit defendant in the 

head three or four times. He was worried that defendant may have another gun and 

needed to subdue him. At this point, Daffron noticed that Daniels was bleeding from a 

knife wound to his leg. Daniels also discovered that he had been stabbed in the chest and 

leg. 

Defendant never said anything during the altercation. Daffron put the guns and 

knife in his safe until police arrived. Daffron never observed Richards or Daniels hit

defendant.
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2. ADDITIONAL TESTIMONY

a. Michael Dubski

Michael Dubski was present at Dukes that night. He and his brother were 

approaching the front door of Dukes when they observed one of the security guards 

advising a person in front of them that he could not go into Dukes. There was a verbal 

altercation and then it turned physical. The person and two security guards were 

wrestling around in the parking lot just past the entrance. About 30 seconds later, he 

heard a gunshot. Dubski saw something metal in defendant’s hand but could not see 

what it was. Defendant did not retreat and held his hands up in a fighting manner. 

Another security guard showed up and was able to contain defendant. Dubski saw 

something get kicked away while defendant was being held on the ground. At trial he did 

not know what it was but told police officers that night that he thought it was a gun. 

Even when defendant was on the ground he did not appear to give up. Just before the 

gunshot, it appeared the security guards were all trying to grab his hands. Defendant was 

on the ground when the gunshot was heard.

Dubski indicated that prior to the gunshot, he had not seen anyone kick or strike 

defendant. He believed the security guards were just holding down defendant to contain 

him until police arrived and did not escalate the situation. Dubski did not see defendant

backing away from the security guards. 

b. Alicia Rieben

Rieben was working as a cashier at the gas station adjacent to Dukes on the night 

in question. Rieben indicated oftentimes people stood at the wall separating the gas 
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station and Dukes, looking over the wall. On previous occasions, she had called Dukes to 

request a security guard ask the people to leave because she felt it was not safe to have 

persons lingering in the area. 

When Rieben arrived at work on February 16, she did not park in her usual spot as 

defendant was standing in the area near his car. She did not feel comfortable getting out 

of her car near him. Defendant was looking over the wall into Dukes. She asked her 

coworker to go out and tell defendant to leave the premises. Defendant did not leave. At 

that point, two security guards from Dukes came to the parking lot and talked to 

defendant. It appeared that they were arguing. When they were done, the security guards

came into the gas station and told Rieben to call the police because defendant was 

refusing to leave. While Rieben was on the phone with the police, she observed 

defendant walk toward the entrance to Dukes. A few moments later, she heard a gunshot. 

The police arrived quickly after she made the phone call. She never saw that defendant

had a flat tire and he never asked for help.

c. 911 Call

Public safety officer Michelle Jensen testified. She oversaw the 911 

communication center for the Riverside Police Department. She testified that Daniel 

Tafesh called 911. Tafesh advised the dispatcher that police were needed at Dukes. He 

stated that “we almost died” when a customer tried to “shove his way in” and had two 

pistols on him. The customer shot the gun one time and had been contained. The 

handguns had been taken away. He reported someone had been “hit in the leg” and an 

ambulance was needed. Tafesh indicated that the customer was bleeding from his head. 
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3. MEDICAL TREATMENT

Daniels went to the hospital. Dr. Joseph Fargusson treated Daniels in the 

emergency room at Riverside Community Hospital. Daniels had two stab wounds. He 

had a one- and one-half-centimeter laceration to his upper stomach and a two-centimeter 

laceration to his right thigh. The stab wound to the upper stomach could have damaged 

his heart and other vital organs. He was admitted to the hospital to be monitored to make 

sure that no arteries were impacted by the stab wound to the chest. There were also 

concerns regarding a blood clot near his heart. Daniels received several stitches. 

Dr. Rachael Tena was working in the emergency room that night and treated 

Richards. He had a laceration on his upper back. There was no puncture to the lung and 

no severing of important arteries. Several sutures were required in order to close the 

laceration. The wound would take several months to completely heal. He also had a 

wound to his neck, which could have impacted several arteries and been fatal.

Daffron’s finger was broken after the altercation but he did not go to the hospital.

4. POLICE INVESTIGATION

Dubski spoke with Riverside Police Officer Brett McMillan at the scene. He told 

Officer McMillan that he observed a “tussle” between defendant and the security guards. 

The security guards took defendant to the ground. Dubski then saw an object fall to the 

ground that he identified as a handgun. 

Officer McMillan also spoke with Childress, who stated he went with Daffron to 

speak with defendant when defendant was at the gas station. Defendant told them not to 

get too close to him. Childress observed a “tussle” between defendant and the security 
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guards. He saw a firearm fall out of defendant’s waistband. He also observed defendant

reach for his waistband and grab another gun. Childress told Officer McMillan that 

defendant pulled the trigger on the gun. Childress believed the gun was pointed at the 

ground when it was discharged. Childress thought Daniels may have been shot by a 

ricochet bullet.

From the scene, Officer McMillan recovered a Glock .23 handgun, a Glock .27 

handgun, two magazines, and a folding knife. These were all in a bag in a safe inside 

Dukes. The two handguns were not registered. 

Riverside Police Officer Matthew Chipukitea was dispatched to Dukes around 

midnight on February 16. A spent shell casing was found at the scene. Blood droplets 

and blood splatter were found on the walkway leading into Dukes. He photographed 

defendant at the hospital; he had two staples at the top of his head. Officer Chipukitea 

examined and photographed the two guns; a bullet was missing from one magazine and 

the other magazine was fully loaded. Defendant had two holsters for concealing guns on 

his person.

Riverside Police Officer Robert Karotz was dispatched to Dukes around midnight 

on February 16. When he arrived, the scene was chaotic. Persons were fleeing Dukes 

from emergency exits and running into the parking lot. Defendant was in handcuffs or 

being loaded into the ambulance. Officer Karotz spoke with Daffron. Daffron was 

agitated and emotional. Daffron provided Officer Karotz with access to the surveillance 

footage at Dukes. Officer Karotz watched the two videos provided by Daffron . He 

described it for the jury, as will be set forth in more detail, post. 
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Riverside Police Officer Taylor LaPoint arrived at Dukes shortly after midnight. 

When he arrived, other officers were holding down defendant. He assisted with detaining 

defendant. Officer LaPoint observed that defendant had a gun holster in his waistband. 

He took the holster from defendant. He spoke with Richards. He went to the hospital 

and took photographs of Richards’s injuries. He had injuries to his back and neck. 

Richards’s T-shirt and sweatshirt had holes that coincided with the knife wounds. 

Riverside Police Officer Adriana Valenzuela also responded to Dukes. Officer 

Valenzuela secured the perimeter. A person approached Officer Valenzuela and stated 

that he or she had a video of the incident on their cellular telephone and did not want to 

be identified. Officer Valenzuela was played the video in court and described what was 

on the video, as will be set forth, post. 

Riverside Police Detective Richard Glover was one of the first officers who 

arrived at the scene. There was chaos in the parking lot. He observed defendant on the 

ground and two individuals on top of him keeping him pinned to the ground. There was 

one person sitting on the curb. A fourth person was pacing back and forth nearby. The 

security guards told Detective Glover that defendant had shot at them and one of them 

was stabbed. He did not see the security guards hitting or punching defendant. 

Defendant was handcuffed and taken into custody. Detective Glover saw two gun 

holsters. One was near defendant and another was on his waistband. Defendant was 

searched and a loaded magazine was found in his pocket. The handguns recovered would 

have fit in the holsters. The handguns would expel a casing. The magazines that were 
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found fit the handguns in defendant’s possession. The knife was a folding knife that had 

a two- and one-half-inch blade. 

Riverside Police Officer Casey Adams arrived at Dukes shortly after midnight. 

He was the first officer to arrive. When he arrived, he observed two security guards on 

top of defendant attempting to hold him down. It appeared that defendant was trying to 

get up and was struggling. He did not observe any of the security guards using weapons 

against defendant. Officer Adams assisted the security guards in trying to control 

defendant’s hands; he kept trying to put them under his body. Officer Adams was able to 

handcuff defendant. There was blood coming from a laceration on defendant’s head and 

he was given medical attention. 

The parties stipulated that defendant was prohibited from possessing a handgun. 

Defendant presented no evidence on his behalf.

DISCUSSION

A. COUNT 5: DAFFRON

Defendant makes three contentions as to the conviction for attempted premeditated 

and deliberate murder of Daffron. First, he claims that his conviction for attempted 

murder of Daffron is not supported by substantial evidence that he acted with the 

requisite intent to kill. He further contends there was no evidence that the attempted 

murder of Daffron was committed willfully, deliberately or with premeditation. Finally, 

he claims the jury’s true finding that he personally and intentionally discharged a firearm 

in the commission of the attempted murder of Daffron is not supported by substantial 

evidence. 
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1. INTENT TO KILL

Defendant contends there is insufficient evidence to support his attempted murder 

conviction against Daffron (count 5) in that he did not possess the intent to kill. 

“When considering a challenge to the sufficiency of the evidence to support a 

conviction, we review the entire record in the light most favorable to the judgment to 

determine whether it contains substantial evidence—that is, evidence that is reasonable, 

credible, and of solid value—from which a reasonable trier of fact could find defendant

guilty beyond a reasonable doubt. [Citation.] . . . We presume in support of the 

judgment the existence of every fact the trier of fact reasonably could infer from the 

evidence. [Citation.] If the circumstances reasonably justify the trier of fact’s findings, 

reversal of the judgment is not warranted simply because the circumstances might also 

reasonably be reconciled with a contrary finding. [Citation.] A reviewing court neither 

reweighs evidence nor reevaluates a witness’s credibility.” (People v. Lindberg (2008) 

45 Cal.4th 1, 27; see also People v. Zamudio (2008) 43 Cal.4th 327, 358.)

“ ‘ “ ‘The mental state required for attempted murder has long differed from that 

required for murder itself. Murder does not require the intent to kill. Implied malice—a 

conscious disregard for life—suffices. [Citation.]’ [Citation.] In contrast, ‘[a]ttempted 

murder requires the specific intent to kill and the commission of a direct but ineffectual 

act toward accomplishing the intended killing.’ ” ’ ” (People v. Virgo (2013) 222 

Cal.App.4th 788, 797.) 

“[T]he act of purposefully firing a lethal weapon at another human being at close 

range, without legal excuse, generally gives rise to an inference that the shooter acted 
17

with express malice. That the shooter had no particular motive for shooting the victim is 

not dispositive, although again, where motive is shown, such evidence will usually be 

probative of proof of intent to kill. Nor is the circumstance that the bullet misses its mark 

or fails to prove lethal dispositive—the very act of firing a weapon ‘ “in a manner that 

could have inflicted a mortal wound had the bullet been on target” ’ is sufficient to 

support an inference of intent to kill.” (People v. Smith (2005) 37 Cal.4th 733, 742; see 

also People v. Nelson (2011) 51 Cal.4th 198, 212 [“Simply pointing [a] gun at [the 

victim] . . . is sufficient to support a finding of attempted murder”].) “[I]ntent to kill 

often must be inferred from circumstantial evidence surrounding the crime.” (People v. 

Canizales (2019) 7 Cal.5th 591, 606 (Canizales).) 

Daffron had confronted defendant earlier in the night asking him to leave the area. 

Rather than leave, defendant reached toward his waistband and told him to get the “fuck” 

away from him. Defendant did not leave the area and instead tried to get into Dukes with 

two handguns, loaded magazines and a knife. Defendant was defiant when Daniels 

refused him entry because he was smoking. When Daniels tried to get defendant to leave 

Dukes, he stabbed him. Richards tried to help Daniels, and defendant stabbed him in the 

neck and back. Defendant was defiant with the security guards and intended to hurt 

them. 

Defendant was pinned to the ground when Daffron approached to help detain him. 

Rather than give up, defendant deliberately reached into his waistband and pulled out a

handgun. The cellular telephone video clearly shows that defendant reached into his 

waistband and grabbed the gun. Daffron testified that defendant pointed the gun at his 
18

stomach. Daffron was able to grab defendant’s gun and put his finger behind the trigger. 

This did not deter defendant and he pulled the trigger. This is strong circumstantial 

evidence that defendant intended to kill Daffron by pointing the gun at Daffron, who was 

in close range. He was only thwarted by Daffron being able to redirect the gun away 

from himself. 

Defendant insists that the gun was accidentally fired. However, Daffron and 

Richards both testified that defendant pulled the trigger.

Defendant contends that he only had the direct intent to kill one staff member. 

“[W]here there are multiple possible victims of the attempted murder, the prosecution 

must establish that defendant intended to kill each victim for each count charged.” 

(People v. Virgo, supra, 222 Cal.App.4th at p. 798.) Here, the evidence supports that 

defendant intended to kill Daffron. Defendant had a loaded weapon in his possession but 

chose to use the knife against Daniels and Richards. Daffron approached defendant and 

at this point, he pulled the gun out of his waistband. The jury could reasonably conclude 

that defendant had the intent to kill Daffron because he did not choose to use the gun 

until Daffron arrived, and because he pointed the gun at Daffron. Defendant’s claim that 

he did not see Daffron is pure speculation. Daffron had his hand on the gun and 

defendant did not pull out the gun until Daffron arrived. It is inconceivable that 

defendant was unaware that Daffron was on top of him. Substantial evidence supports 

the jury finding that defendant had the intent to kill Daffron when he shot the gun. 
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2. PREMEDITATION

Defendant also contends the evidence does not support that he committed the 

attempted murder of Daffron willfully, deliberately and with premeditation.

“ ‘A verdict of deliberate and premeditated first degree murder requires more than 

a showing of intent to kill. [Citation.] “Deliberation” refers to careful weighing of 

considerations in forming a course of action; “premeditation” means thought over in 

advance.’ ” (People v. Halvorsen (2007) 42 Cal.4th 379, 419.) “In assessing the 

sufficiency of evidence of premeditation and deliberation, courts often consider three 

factors discussed in People v. Anderson (1968) 70 Cal.2d 15, 26-27[:] planning, motive, 

and manner of killing. [Citation.] ‘Anderson does not require that these factors be 

present in some special combination or that they be accorded a particular weight, nor is 

the list exhaustive. Anderson was simply intended to guide an appellate court’s 

assessment whether the evidence supports an inference that the killing occurred as the 

result of preexisting reflection rather than unconsidered or rash impulse.’ ” (People v. 

Ocegueda (2023) 92 Cal.App.5th 548, 561.) 

“ ‘The process of premeditation and deliberation does not require any extended 

period of time. “The true test is not the duration of time as much as it is the extent of the 

reflection. Thoughts may follow each other with great rapidity and cold, calculated 

judgment may be arrived at quickly.” ’ ” (People v. Lee (2011) 51 Cal.4th 620, 636.) A 

“preexisting reflection, of any duration, is readily distinguishable from a killing based on 

unconsidered or rash impulse.” (People v. Solomon (2010) 49 Cal.4th 792, 813.) “[T]he 

appellate court does not substitute its judgment for that of the jury but affirms the verdict 
20

if a rational trier of fact could find premeditation and deliberation beyond a reasonable 

doubt.” (People v. Pride (1992) 3 Cal.4th 195, 247.)

Initially, there was evidence that defendant planned to enter Dukes and cause 

trouble that night. Defendant was approached by Daffron and Childress when he was 

observed looking over the wall into the patio area of Dukes and refused to respond to 

questions from Richards. Daffron advised defendant that he should leave and defendant

responded to get the “fuck” away from him. Defendant refused to leave. It was at this 

point, defendant’s counsel argued, that defendant armed himself with two handguns both 

with loaded magazines, and a knife to defend himself. However, it was equally plausible 

that defendant armed himself, or was already armed as evidenced by his reaching for his 

waistband when Daffron initially confronted him, and this showed he planned to hurt 

someone at Dukes.6

His plan to cause trouble at Dukes was further evidenced by defendant’s defiance 

in refusing to get rid of his cigarette when asked by Daniels. The video in exhibit 4

shows defendant making no effort to comply with the demands of Daniels to take his 

cigarette outside. Defendant just stared at Daniels and kept his cigarette. He then pulled 

out his knife and fought with Daniels. Daniels had no intention of leaving Dukes and 

was going to hurt the security guards who stood in his way. 

6 Defendant argues that arming himself did not show he planned to hurt Daffron 

or anyone else at Dukes. This may be true if defendant was carrying one handgun but 

defendant had numerous magazines and two handguns which reasonably shows a plan to 

hurt those inside Dukes.
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Defendant used the knife against Daniels and Richards, but it was taken from him. 

Defendant was on the ground. None of the security guards were beating him; they 

merely had him pinned to the ground and he could have given up. At this point, Daffron 

arrived to help Daniels and Richards. Defendant made a conscious choice to reach into 

his waistband for the hidden handgun and shoot at Daffron. The evidence establishes that 

he deliberately pulled the gun out and used it. This was not a rash or impulsive decision. 

(See People v. Perez (1992) 2 Cal.4th 1117, 1127 [manner of killing showed 

premeditation and deliberation as defendant searched for additional knife after first knife 

broke].) Defendant had armed himself prior to entering Dukes, consciously pulled the 

gun from his waistband—when he could have just given up—and instead fired the gun. 

Despite defendant contending that he was only defending himself and used his weapons 

only after he was pushed by Daniels, the fact remains that he brought numerous weapons 

into Dukes after having been asked to leave and refused to leave even though he had the 

opportunity. 

While there is no apparent evidence of motive, it does appear that defendant

sought to enter Dukes to hurt those inside. Defendant had been outside Dukes looking 

into the patio area and ignored any inquiries as to what he was doing. He attempted to 

bring two handguns and loaded magazines into Dukes, which reasonably could be 

interpreted as he intended to hurt whoever was inside Dukes that night. 

Defendant’s premeditation and deliberation that he specifically intended to kill 

Daffron is evidenced by the fact that he had multiple opportunities to pull out his gun and 

fire at the security guards but waited until the knife was taken from him and Daffron was 
22

involved. During the initial encounter with Daniels, defendant’s hands were free and he 

could have pulled his gun on Daniels. Defendant instead pulled the knife out and used 

that to assault Daniels. The cellular telephone video shows that there was a time that 

defendant was standing with the security guards and his hands were not being held. At 

that point, defendant could have pulled the gun on all of them, but chose not to use the 

gun. It was not until he was pinned to the ground that he reached into his waistband and 

pulled out the gun. This was when Daffron arrived to assist Richards and Daniels. Once 

he pulled the gun from his waistband, he pointed it at Daffron’s stomach and shot the 

gun. This was further evidence of premeditation and deliberation. 

The evidence is sufficient to sustain the jury's finding of premeditation and 

deliberation in the attempted murder of Daffron.

3. ASSAULT WITH A FIREARM

Defendant contends the evidence does not support the true finding by the jury that 

defendant personally and intentionally discharged a firearm within the meaning of section 

12022.53, subdivision (c), in the commission of the attempted murder of Daffron.

“[A] person who, in the commission of a felony specified in subdivision (a), 

personally and intentionally discharges a firearm, shall be punished by an additional and 

consecutive term of imprisonment in the state prison for 20 years.” (§ 12022.53, subd. 

(c).)7 “Whether defendant used a firearm in the commission of an enumerated offense is 

for the trier of fact to decide. [Citation.] We review the sufficiency of the evidence to 

7

 These felonies include attempted murder. (§ 12022.53, subds. (a)(1) & (a)(18)).
23

support an enhancement using the same standard we apply to a conviction. [Citation.] 

Thus, we presume every fact in support of the judgment the trier of fact could have 

reasonably deduced from the evidence.” (People v. Carrasco (2006) 137 Cal.App.4th 

1050, 1058.)

Here, Daffron’s testimony supports that defendant personally and intentionally 

discharged his firearm during the commission of the attempted murder of Daffron. 

Daffron testified that defendant pulled out the gun from his waistband and pointed it at 

Daffron’s stomach. Daffron tried to grab the gun and was able to get his finger behind 

the trigger. At that point, defendant pulled the trigger, snapping Daffron’s finger in half. 

It is inconceivable that Daffron could have pulled the trigger that broke his own finger, 

and defendant was the only other person holding the gun. Further, Richards testified that 

he observed defendant pull the trigger.8 

Based on this evidence, the jury could reasonably conclude that defendant

personally and intentionally discharged the firearm during the commission of the 

attempted murder of Daffron. 

8 Defendant claims that Richards testified he never saw defendant pull the trigger. 

However, he was asked on direct examination, “At this point did you see him pull the 

trigger?” Richards responded, “Yes.” Later, Richards, on cross-examination, confirmed 

that when he grabbed defendant’s wrist, the gun went off. He was asked, “Did you see 

his finger pull the trigger?” Richards stated, “I did not see it.” Richards also testified 

that the gun went off while he held defendant’s wrist and Richards did not pull the 

trigger. From this evidence, coupled with the testimony from Daffron, the jury could 

reasonably conclude that defendant pulled the trigger. 
24

B. COUNT 2: DANIELS

Defendant further contends that his conviction for assault with a semiautomatic 

firearm on Daniels is not supported by substantial evidence. He insists that there was no 

evidence that defendant pointed the gun at Daniels or in his direction. The gun was 

pointed at the ground when it was fired.

“ ‘An assault is an unlawful attempt, coupled with a present ability, to commit a 

violent injury on the person of another.’ ” (People v. Cruz-Partida (2022) 79 

Cal.App.5th 197, 206, fn. omitted.) “No specific intent to cause injury is required. 

[Citation.] Rather, the focus is on the ‘offensive or dangerous character of defendant’s 

conduct.’ ” (Id. at p. 207.) Firing a “gun in the vicinity of others has been found, . . . to 

be sufficient to justify a charge of assault.” (Id. at p. 208.) “Because the gravamen of 

assault is the likelihood that defendant’s action will result in a violent injury to another 

[citation], it follows that a victim of assault is one for whom such an injury was likely.” 

(People v. Trujillo (2010) 181 Cal.App.4th 1344, 1355.)

Daniels was within four feet of defendant when the shot was fired. Daffron was 

struggling with defendant when the gun was fired. Daffron was able to direct the gun 

away from himself when defendant fired the gun. Daffron believed that Daniels had been 

shot and testified the gun was fired in the general vicinity where Daniels was standing. 

This evidence that Daniels was within four feet of defendant when he pulled the trigger 

on the gun, and Daffron testified that the gun was pointed in the general vicinity where 

Daniels was standing, is sufficient to support defendant’s conviction of assault with a 

firearm on Daniels. 
25

C. COUNT 3: RICHARDS

Defendant raises two claims as to his conviction for the attempted premeditated 

and deliberate murder of Richards in count 3. He claims his conviction for the attempted 

murder of Richards must be reversed because the evidence fails to establish that he acted 

with the requisite intent to kill. He further contends there was no evidence that the 

attempted murder of Richards was committed willfully, deliberately or with 

premeditation.

We have previously set forth the standards for reviewing a claim of insufficient 

evidence, for finding an intent to kill for attempted murder, and for premeditation and 

deliberation and rely on these authorities here. In People v. Avila (2009) 46 Cal.4th 680, 

the California Supreme Court found substantial evidence that the defendant intended to 

kill the victim based solely on the evidence that the defendant made repeated attempts to 

stab the victim and succeeded in stabbing the victim in the arm and leg. (Id. at pp. 701-

702.) The court also noted that “[T]he degree of the resulting injury is not dispositive of 

defendant’s intent. Indeed, defendant may properly be convicted of attempted murder 

when no injury results.” (Id. at p. 702.)

Here, the jury found defendant guilty of the attempted murder of Richards based 

on defendant stabbing him with the knife. Initially, there was strong evidence that 

defendant intended to kill Richards when he stabbed him. Richards joined Daniels in 

trying to subdue defendant. When Richards arrived, defendant deliberately swung the 

knife numerous times at Richards and connected. He stabbed Richards in the neck and 
26

back. Defendant only stopped when Richards and Daniels were able to pin him on the 

ground and were able to pry the knife from his hand. 

Richards was treated at the hospital and required several stitches. The wound to 

his back was concerning to the treating physician as it could have penetrated his lungs. 

Ultrasound tests were performed to ensure the stab wound had not penetrated his lungs or 

heart. The doctor also indicated that a stab wound to the neck was a concern as it could 

impact major arteries, which would be life-threatening. Defendant’s actions in violently 

swinging the knife at Richards and the resulting injuries to Richards were strong 

circumstantial evidence that he intended to kill Richards. 

As for the finding of premeditation and deliberation, defendant had the knife in his 

hand starting with the altercation with Daniels. He held onto the knife throughout the 

interaction with the security guards. Defendant immediately swung the knife at Richards 

when he approached to help Daniels. It was clear that defendant had the intent to use the

knife against Richards, and that he planned to use the knife against anyone who tried to 

stop him. Defendant could have stopped and walked away at any point during the 

altercation. Defendant was standing away from the security guards in the parking lot. He 

could have held his hands up or retreated. Instead, he chose to swing the knife at 

Richards, resulting in him being stabbed in the neck and chest. The jury could 

reasonably conclude that defendant acted with premeditation and deliberation in the 

commission of the attempted murder of Richards.
27

D. INSTRUCTIONAL ERRORS

Defendant claims the trial court committed two instructional errors. First, he 

claims the trial court erroneously instructed the jury on premeditation in the standard 

instruction CALCRIM No. 601, which was given without objection or request for 

modification. He further insists that his conviction for the attempted murder of Daffron

in count 5 must be reversed as the jury was instructed on an inapplicable kill zone theory 

of liability.

The parties discussed the instructions both on and off the record. The prosecutor 

proposed that it would give CALCRIM No. 600 on attempted murder but would have to 

give it twice based on two separate victims. The instruction would include a kill zone 

theory. The prosecutor also indicated that it was requesting CALCRIM No. 601 on 

premeditation and deliberation. No objection to either instruction was made by 

defendant. 

1. CALCRIM No. 600

The jury was instructed on attempted murder for counts 3 and 5. Defendant only 

contests the instruction as to count 5, the attempted murder against Daffron. Defendant

contends that the kill zone instruction was inapplicable to the count involving Daffron 

because it was inapplicable based on the evidence presented in the case.9

The jury was instructed on attempted murder on count 5. It instructed the jury, 

“To prove defendant is guilty of attempted murder, the People must prove that: [¶] 

9 He does not make the same claim as to the attempted murder of Richards

recognizing that his conviction was based on defendant’s use of the knife, not the gun.
28

1. Defendant took at least one direct but ineffective step toward killing another person. 

[¶] AND [¶] 2. Defendant intended to kill that person.” The instruction also included a 

kill zone theory of liability as follows: “A person may intend to kill a primary target and 

also a secondary target within a zone of fatal harm or ‘kill zone.’ A ‘kill zone’ is an area 

in which defendant used lethal force that was designed and intended to kill everyone in 

the area around the primary target. [¶] In order to convict defendant of attempted murder 

of [Daffron], the People must prove that defendant not only intended to kill [Daffron], but 

also either intended to kill [Daffron] or intended to kill everyone within the kill zone. [¶] 

In determining whether defendant intended to kill [Daffron] the People must prove that 

(1) the only reasonable conclusion from defendant’s use of lethal force is that defendant

intended to create a kill zone; and (2) [Daffron], was located within the kill zone. [¶] In 

determining whether defendant intended to create a ‘kill zone’ and the scope of such a 

zone, you should consider all of the circumstances including, but not limited to, the 

following: [¶] The type of weapon used; [¶] The number of shots fired; [¶] The distance 

between defendant [and] [Daffron]; [¶] The distance between [Daffron] and the primary 

target. [¶] If you have a reasonable doubt about whether defendant intended to kill 

[Daffron] or intended to kill [Daffron], by killing everyone in the kill zone, then you must 

find defendant not guilty of attempted murder of [Daffron].”10 

“[T]he kill zone theory for establishing the specific intent to kill required for 

conviction of attempted murder may properly be applied only when a jury concludes: 

10 The same instruction was given for Richards, with his name substituted for 

Daffron. 
29

(1) the circumstances of defendant’s attack on a primary target, including the type and 

extent of force defendant used, are such that the only reasonable inference is that 

defendant intended to create a zone of fatal harm—that is, an area in which defendant

intended to kill everyone present to ensure the primary target’s death—around the 

primary target and (2) the alleged attempted murder victim who was not the primary 

target was located within that zone of harm. Taken together, such evidence will support a 

finding that defendant harbored the requisite specific intent to kill both the primary target 

and everyone within the zone of fatal harm.” (Canizales, supra, 7 Cal.5th at p. 607.)

“In determining defendant’s intent to create a zone of fatal harm and the scope of 

any such zone, the jury should consider the circumstances of the offense, such as the type 

of weapon used, the number of shots fired (where a firearm is used), the distance between 

defendant and the alleged victims, and the proximity of the alleged victims to the primary 

target. Evidence that defendant who intends to kill a primary target acted with only 

conscious disregard of the risk of serious injury or death for those around a primary target 

does not satisfy the kill zone theory.” (Canizales, supra, 7 Cal.5th at 607.) It concluded 

that, “we anticipate there will be relatively few cases in which the theory will be 

applicable and an instruction appropriate.” (Ibid.)

The People concede that the kill zone instruction given was erroneous citing to 

People v. Mumin (2023) 15 Cal.5th 176, 193-194, 204-205. “The far more commonplace 

act of firing one or a few shots at a group may supply the actus reus for a number of 

crimes. But, standing alone, it does not support a conclusion that the shooter intended to 

create a kill zone around the primary target in order to ensure that primary target will 
30

die.” (Id. at p. 193.) We agree with the parties that the evidence did not support the kill 

zone instruction in this case.

The erroneous instruction given to the jury did not prejudice defendant as beyond 

a reasonable doubt it did not contribute to the verdict. (Chapman v. California (1967) 

386 U.S. 18, 24.) Defendant insists that the giving of the instruction was prejudicial as 

the jury could find him guilty of the attempted murder of Daffron without a finding that 

he had the intent to kill Daffron.

A similar instruction was given in People v. Tran (2018) 20 Cal.App.5th 567. In 

Tran, the instruction named the same victim, Roger James, as the primary and secondary 

target. (Id. at p. 567.) The appellate court found that such instruction could not have 

possibly prejudiced the defendant. “[I]t could not possibly have prejudiced appellant 

because it expressly required the jury to find he harbored the intent to kill James in order 

to convict him of that offense. In fact, the kill zone instruction was repetitive in terms of 

conveying that requirement in that it required the jury to find ‘defendant not only 

intended to kill Roger James,’ but also that he ‘intended to kill Roger James or intended 

to kill Roger James by killing everyone in the kill zone[.]’ Either way, appellant could 

not have been found guilty of a kill zone attempted murder under this instruction unless 

the jury found he intended to kill James. Therefore, any error in the wording of the kill 

zone instruction was patently harmless. There is no basis to disturb appellant’s 

conviction for attempting to murder James.” (Ibid.) 
31

Here, the jury was instructed the same as in Tran in that Daffron was named both 

the primary and secondary target. The jury necessarily had to conclude that defendant

had the intent to kill Daffron. 

Moreover, the jury necessarily did not rely on the kill zone theory in convicting 

defendant of the murder of Daffron. As noted, the jury found defendant was guilty of the 

attempted murder of Richards based on the use of the knife only. As such, it necessarily

found defendant guilty of the attempted murder of Daffron based on the firing of the gun

and must have concluded that defendant had the intent to kill Daffron when he fired the 

gun. As such, any conceivable error in instructing the jury with the kill zone instruction 

was harmless beyond a reasonable doubt. 

2. CALCRIM NO. 601

The jury was instructed with premeditation and deliberation for counts 3 and 5 in 

CALCRIM No. 601. It was instructed, “Defendant acted willfully if he intended to kill 

when he acted. Defendant deliberated if he carefully weighed the considerations for and 

against his choice and, knowing the consequences, decided to kill. Defendant acted with

premeditation if he decided to kill before completing the acts of attempted murder. [¶] 

The length of time a person spends considering whether to kill does not alone determine 

whether the attempted killing is deliberate and premeditated. The amount of time 

required for deliberation and premeditation may vary from person to person and 

according to the circumstances. A decision to kill made rashly, impulsively, or without 

careful consideration of the choice and its consequences is not deliberate and 

premeditated. On the other hand, a cold calculated decision to kill could be reached 
32

quickly. The test is the extent of the reflection, not the length of time.” (Italics added.) 

Defendant contends the italicized portion of the instruction inaccurately defines 

premeditation.

Defendant did not object to the standard instruction given by the trial court.

“Defendant . . . may not now ‘complain on appeal that an instruction correct in law and 

responsive to the evidence was too general or incomplete.’ [Citations.] Defendant’s 

failure to . . . object to the proposed instruction . . . forfeits his claim on appeal.” (People 

v. Valdez (2004) 32 Cal.4th 73, 113.) We need not consider this claim on appeal. 

E. OFFICER TESTIMONY

Defendant contends the trial court committed reversible error when it allowed

Officers Karotz and Valenzuela to narrate the surveillance video and cellular telephone 

video as their testimony went beyond drawing reasonable inferences and, in fact, 

interpreted the facts for the jury. The admission of the evidence violated both his state 

and federal constitutional rights.

1. ADDITIONAL FACTUAL BACKGROUND

During Officer Karotz’s testimony, the prosecutor played the video of the 

confrontation between Daniels and defendant. He was asked about the contact between 

defendant and Daniels. Officer Karotz explained that he believed Dukes had a policy of 

no smoking inside their premises. Officer Karotz began to evaluate defendant’s body 

language but defendant’s counsel objected as speculation, which was sustained. Officer 

Karotz indicated that based on defendant having his hand in his pocket, he would think 

that defendant had a weapon in his pocket and was preparing to arm himself. 
33

Defendant’s relevance objection was overruled. Officer Karotz would have demanded 

that defendant remove his hand from his pocket.

Officer Karotz was then asked whether he could observe defendant still with his 

hand in his pocket in the video. Defendant’s counsel objected that the video could speak 

for itself. The trial court overruled the objection. Officer Karotz then testified that it 

appeared he was grasping something. Officer Karotz was then asked to view the 

photographs taken from the video. He reviewed exhibit 71 and noted that it showed 

defendant with his hand around a black object. Exhibit 72 exhibited the blade of the 

knife extending out from his fist. Officer Karotz was also shown exhibit 74 and asked 

about defendant’s body language. A relevance objection was overruled. Officer Karotz 

indicated that based on the photograph and video, defendant could be seen stabbing the 

security guard. Officer Karotz also stated that there was a flash of the knife blade that 

could be seen in the video. 

Officer Karotz was also shown exhibit 5, which was the video depicting the 

outside walkway leading to the front door of Dukes. The video showed defendant

walking into Dukes behind a security guard. Once again, defendant could be seen 

swinging the knife. 

Officer Valenzuela described the cellular telephone video to the jury. She stated 

the video showed the security guards attempting to get defendant to the ground. It did 

not appear that defendant was cooperating with the security guards. She observed 

defendant swinging his hand towards the security guards. The object in his hand 

appeared to be a knife. Officer Valenzuela was asked, “In this instance, the security 
34

guard closest to the individual on the ground, does it appear they are striking the 

individual?” Defense counsel objected on the grounds the video stands for itself, 

speculation and irrelevant. The trial court responded, “I think this witness could opine.” 

She went on to describe that the security guard was directly above defendant with his 

hands on defendant. He had an open palm. She also was shown exhibit 78, which was a 

still photograph from the video. The knife could clearly be seen in defendant’s hand. It 

appeared in the video that defendant was swinging his hand toward the security guard and 

made contact. It appeared the security guards were trying to defend themselves and one 

of them was trying to hold down defendant.

Officer Valenzuela was asked if it appeared that the security guards were trying to 

stop the altercation. An objection on speculation and irrelevance grounds was sustained. 

Officer Valenzuela then testified she saw one of the security guards pick up a handgun 

from the ground. This was prior to a gunshot being heard in the cellular telephone video. 

During the video, defendant never put his hands up to signal the officers that they should 

stop.

2. ANALYSIS

The People have argued that defendant waived this issue on appeal by failing to 

object on the same grounds in the lower court as raised on appeal. The People also 

contend that testimony by the officers was proper lay witness opinion testimony that was 

helpful to the jury. We need not consider these claims as we find that the admission of 

the evidence was not prejudicial to defendant as there is no reasonable probability of a 
35

more favorable outcome had the testimony been excluded. (People v. De Hoyos (2013) 

57 Cal.4th 79, 131; People v. Watson (1956) 46 Cal.2d 818, 836.) 

Here, the jury was shown the videos in exhibits 3, 4 and 5 several times. They 

also viewed the still photographs from the videos. They were presented with testimony 

from percipient witnesses including the security guards and Dubski, who was a patron at 

Dukes, detailing the events that appeared in the videos. Dubski repeatedly testified that 

defendant never backed away from the security guards nor tried to stop the altercation. 

Defendant admits that the jury was more than capable of viewing the videos themselves 

and did not need additional testimony from the officers. Defendant merely speculates 

that the jury was “likely to defer” to the officers’ opinions about what was shown in the 

videos rather than their own assessment. There is nothing to support this speculation. 

Moreover, the testimony of the officers properly described what occurred in the videos 

and provided nothing more than what the jury already knew based on their independent 

view of the videos.

Defendant also claims exhibit 3 was grainy and hard to see. However, there were 

still photographs taken that showed the video more clearly. The jury could reasonably 

view the videos and reach its own conclusions as to what was depicted in the videos. 

Defendant also contends that the testimony infringed on his defense of self-defense, but 

the jury on its own could see that defendant had opportunities to end the altercation but 

chose to continue to fight with the security guards. Further, they could rely on the 

testimony of Dubski that defendant never retreated. Any conceivable error in the 

admission of the officers’ testimony was harmless.
36

F. PITCHESS

Finally, defendant contends this court should conduct an independent Pitchess 

review of the records the trial court reviewed for Riverside Police Officers Glover, 

McMillan and Karotz. The People do not object.

On June 29, 2021, defendant brought a motion for discovery of information 

pursuant to Pitchess. Defendant sought information pertaining to Officers McMillan, 

Glover and Karotz. Defendant sought any information of prior violence, dishonesty, 

improper arrests and any other types of wrongful conduct by the officers. Defendant

insisted the evidence was relevant as the officers fabricated police reports, engaged in 

dishonesty and planted evidence in the instant case. Attorneys on behalf of the City of 

Riverside, and who represented the officers, filed opposition. 

The trial court addressed the Pitchess motion on August 10, 2021. The trial court 

found that there was good cause for an in camera review of records from the prior five 

years for evidence of fabrication of false police reports, false reports, planting evidence, 

conduct involving dishonesty, conviction involving moral turpitude, conduct involving 

moral turpitude, complaints by residents of fabrication of false reports and planting of 

false evidence. No other records, such as use of excessive force, were relevant. The trial 

court conducted an in camera review of the records provided by the City of Riverside. 

After its review, the trial court found there was no discoverable information to turn over 

to the defense. It sealed the records that it had reviewed.

Under Pitchess, “a criminal defendant has a limited right to discovery of peace 

officer personnel records in order to ensure ‘a fair trial and an intelligent defense in light 
37

of all relevant and reasonably accessible information.’ ” (Alford v. Superior Court (2003) 

29 Cal.4th 1033, 1037, fn. 3, overruled on other grounds in Facebook Inc. v. Superior 

Court (Touchstone) (2020) 10 Cal.5th 329.) “A trial court’s ruling on a motion for access 

to law enforcement personnel records is subject to review for abuse of discretion.” 

(People v. Hughes (2002) 27 Cal.4th 287, 330.) 

We have independently reviewed the sealed transcript of the hearing and the 

records that the trial court reviewed in camera. We find that the trial court properly 

concluded that there was no discoverable information. 

DISPOSITION

The judgment is affirmed in full. 

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

MILLER

Acting P. J.

We concur:

CODRINGTON

J.

RAPHAEL

J.