Filed 9/13/24 P. v. Wiltshirebeal CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

DAMANI JERRY WILTSHIREBEAL,

Defendant and Appellant.

D082374

(Super. Ct. No. SCD293611)

APPEAL from a judgment of the Superior Court of San Diego County, 

Carlos O. Armour, Judge. Affirmed.

Christine M. Aros, under appointment by the Court of Appeal, for 

Defendant and Appellant, by appointment.

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

Attorney General, Charles C. Ragland, Assistant Attorney General, Steve 

Oetting and Eric Tran, Deputy Attorneys General, for Plaintiff and 

Respondent.

INTRODUCTION

After he and his friend Samuel Perez had been kicked out of a bar, 

Damani Jerry Wiltshirebeal shot and killed Kyle Delangel, an unarmed man. 

A jury convicted Wiltshirebeal of first degree murder (Pen. Code, § 187, subd. 
2

(a))1 and found true the special allegation that he personally used a firearm to 

commit the offense and caused great bodily injury (§ 12022.53, subd. (d)). On 

appeal, Wiltshirebeal contends (1) there was insufficient evidence to support 

the first degree murder conviction or to establish that he did not act in selfdefense or under heat of passion, and (2) the trial court abused its discretion in 

denying Wiltshirebeal’s motion to reduce the special allegation enhancement. 

Finding no merit in these contentions, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

At trial, Wiltshirebeal testified that a little after midnight on the evening 

of February 19, 2022, after consuming alcohol at Wiltshirebeal’s home, 

codefendant Perez drove him to a local bar. Wiltshirebeal brought with him 

his loaded Ruger SP101 revolver, which he left in the side pocket of Perez’s car

door when they arrived at the bar. A couple of hours later, after drinking 

heavily at the bar, when it was time to close out their bar tabs, Perez had an 

angry confrontation with the waitress and others in the bar about the tab. 

Security personnel asked Perez and Wiltshirebeal to leave the bar, and they 

did. No one threatened them or pulled any weapons on them, and no one

followed them outside.

In the parking lot, instead of leaving, Wiltshirebeal stated, “We’re about 

to stick right here,” and a new confrontation developed between Perez and 

some women who had just arrived. Wiltshirebeal retrieved his gun from the 

car door pocket. He testified that he was angry and mad, and he wanted a 

confrontation. He told the women, “There’s about to be a whole lot of problems 

over here.” 

The women summoned help from people inside the bar, and Delangel 

and three other men walked out of the bar. Wiltshirebeal testified that 

1 Statutory references are to the Penal Code unless otherwise indicated.
3

Delangel did not threaten him or Perez, was not armed, and was not 

aggressive. 

Wiltshirebeal got into the car. Perez also got in the car and started the 

engine. Perez rolled down the window to argue with Delangel, and then Perez

attempted to hit Delangel with the car. Delangel approached the driver’s side 

window and punched Perez through the open window. Wiltshirebeal then 

aimed his revolver at Delangel’s torso and fired the weapon four times at 

Delangel, killing him. He testified that he shot Delangel because he “thought 

that him and the other three people who were with him were going to 

continually try to attack us while we’re in this vehicle [causing] further injury 

to myself, my friend, and the altercation could have gone bad for us.” After the 

shooting, Perez drove his vehicle around Delangel’s body, and he and 

Wiltshirebeal left the scene. 

On cross-examination, Wiltshirebeal testified that as an enlisted

member of the United States Marine Corps, he had experience and training in 

the use of firearms, and that if he takes out a loaded firearm, he intends to 

shoot and kill. He knew the torso area was where to shoot someone to kill 

them. His Marine training included the dangers of drinking alcohol and using 

firearms. He also knew of Perez’s proclivity to become belligerent when he had 

been drinking. Wiltshirebeal had access to ride-sharing services on his cell 

phone and could have left the scene without Perez. 

The jury found Wiltshirebeal guilty of the first degree murder of 

Delangel and found true the special allegation he personally used a firearm in 

the commission of the offense, causing great bodily injury. 

In his statement in mitigation filed prior to sentencing, Wiltshirebeal 

emphasized his troubled upbringing and his struggles with alcoholism. He 

also submitted a report from psychologist Abraham Loebenstein, who 
4

discussed Wiltshirebeal’s upbringing and alcoholism and concluded that 

although he “has great potential for rehabilitation,” Wiltshirebeal “does not 

meet the criteria for Posttraumatic Stress Disorder.” The statement in 

mitigation noted that Wiltshirebeal was twenty-three years old at the time of 

the offense. 

The trial court sentenced Wiltshirebeal to 25 years to life for first degree 

murder (§ 187) and an additional 25 years to life pursuant to section 12022.53

subdivision (d), the special allegation enhancement.

DISCUSSION

Wiltshirebeal argues on appeal that the evidence was insufficient to 

support his conviction for first degree murder, because it failed to show he 

acted with malice. He also argues that the prosecution failed to prove that he 

did not act in self-defense, imperfect self-defense, or under the heat of passion. 

Finally, he argues that the court abused its discretion in failing to strike or 

reduce the enhancement to his sentence.

A. Sufficiency of the Evidence for First Degree Murder

When we review a challenge to the sufficiency of the evidence, we 

examine the entire record in the light most favorable to the judgment to 

determine if there is substantial evidence from which any reasonable trier of 

fact could find the defendant guilty beyond a reasonable doubt. (People v. 

Nelson (2011) 51 Cal.4th 198, 210.) Because it is the exclusive province of the 

jury to determine credibility and to resolve evidentiary conflicts or

inconsistencies, we presume the existence of every fact the jury could 

reasonably deduce from the evidence to support the judgment. (Ibid.; People v. 

Young (2005) 34 Cal.4th 1149, 1175, 1181.) If the circumstances reasonably 

justify the jury’s findings, reversal is not warranted merely because the 

circumstances might also be reasonably reconciled with a contrary finding. 
5

(Nelson, at p. 210.) We apply the same standard in determining the sufficiency 

of the evidence to establish premeditation and deliberation as elements of first 

degree murder. (People v. Silva (2001) 25 Cal.4th 345, 368.)

Murder is the “unlawful killing of a human being . . . with malice 

aforethought.” (§ 187, subd. (a).) A willful, deliberate and premeditated killing 

is first degree murder, as is a murder perpetrated by intentionally discharging 

a firearm from a motor vehicle at another person outside of the vehicle, “with 

the intent to inflict death.” (§ 189, subd. (a).) 

The jury was instructed as to these two theories of first degree murder. 

For the first theory, the jury had to find that “the People have proved that he 

acted willfully, deliberately and with premeditation.” As to the second theory,

the jury was instructed that it could find Wiltshirebeal guilty of first degree 

murder if the prosecution proved that Wiltshirebeal intentionally shot a person 

outside of his vehicle, intending to kill that person. 

The jury’s finding of first degree murder is amply supported by the 

record, particularly as to the theory of shooting outside the vehicle. 

Wiltshirebeal himself testified that while seated inside Perez’s vehicle, he 

intentionally shot Delangel, who was outside the vehicle. He testified that he 

aimed for Delangel’s torso, and conceded that “when you point[] a loaded 

firearm at a human being and fire that firearm at their torso area, you are 

intending to kill him.” As to his intention to kill Delangel, the fact that he 

brought a loaded revolver with him that evening leads to a reasonable 

inference that he had considered the possibility that a violent encounter would 

ensue that night. (See, e.g., People v. Lee (2011) 51 Cal.4th 620, 636 

[defendant’s decision to bring a loaded handgun on the night the victim was 

killed indicated defendant had considered the possibility of a violent 

encounter]; People v. Elliott (2005) 37 Cal.4th 453, 471 [one could reasonably 
6

infer from defendant’s arming himself with a knife that he planned a violent 

encounter].)

Further, Wiltshirebeal’s testimony that he was angry and looking for a 

confrontation supported an inference that when he intentionally shot Delangel, 

he intended to kill him. Even without reference to other circumstantial 

evidence of Wiltshirebeal’s intent offered by the prosecution, this evidence was 

sufficient to support the jury’s finding that Wiltshirebeal intended to kill 

Delangel and that he acted with express malice, i.e., with a “deliberate 

intention to unlawfully take away the life of a fellow creature.” (§ 188, subd.

(a)(1)). The jury was not required to believe his explanation that when he fired 

at Delangel, he “intend[ed] to harm, not necessarily kill” him.

B. The Evidence was Sufficient to Prove that Wiltshirebeal Did Not Act in 

Self-defense, Imperfect Self-defense, or Under the Heat of Passion

In finding Wiltshirebeal guilty of first degree murder, the jury necessarily 

found that he acted with malice. However, a finding of malice may be negated 

upon proof of a belief in the need for self-defense, defense of another, or 

provocation. (People v. Rios (2000) 23 Cal.4th 450, 462.) A homicide 

committed during a justifiable heat of passion is not murder in the first degree; 

depending upon the surrounding circumstances, including the extent of the 

provocation and whether there was time for tempers to cool, such a homicide 

may be murder of the second degree or voluntary manslaughter. (People 

v. Nero (1971) 19 Cal.App.3d 904, 912.)

On appeal, Wiltshirebeal contends that “he actually believed the use of 

deadly force was necessary at that moment.” At trial, he testified that he 

“thought that [Delangel] and the other three people who were with him were 

going to continually try to attack us while we’re in this vehicle [causing] 

further injury to myself, my friend, and the altercation could have gone bad for 

us.” As to self-defense or the defense of another, even if the jury could have 
7

found that Wiltshirebeal reasonably believed that either he or his friend Perez 

were in imminent danger of suffering great bodily injury as a result of a punch 

directed at Perez through an open car window by an unarmed man, it could not 

have concluded that shooting Delangel four times in the torso at close range 

was a reasonable amount of force to defend against that danger. (See, e.g.,

People v. Morales (2021) 69 Cal.App.5th 978, 995 (Morales) [defendant’s belief

that “someone is going to punch him in the arm and stabs him to death in 

response,” thereby “us[ing] more force than was necessary,” cannot claim selfdefense].)

As to the sufficiency of the evidence for imperfect self-defense, the same 

analysis applies. (See Morales, supra, 69 Cal.App.5th at p. 995 [if defendant 

uses more force than necessary in defense, he cannot claim either perfect selfdefense or imperfect self-defense].) The jury could reasonably reject 

Wiltshirebeal’s argument that he had a subjective belief (albeit unreasonable) 

that he needed to shoot Delangel in order to defend Perez. Instead, from its 

verdict, the jury must have credited the testimony of Wiltshirebeal and others 

that Wiltshirebeal shot Delangel because he was angry and actively seeking a 

confrontation after being asked to leave the bar, not because he felt threatened 

by an unarmed man outside the vehicle. 

As to the contention that Wiltshirebeal acted upon a sudden quarrel in 

the heat of passion, as an initial matter, we note that the “heat of passion 

requirement for manslaughter has both an objective and a subjective 

component.” (People v. Steele (2002) 27 Cal.4th 1230, 1252; accord People v. 

Moye (2009) 47 Cal.4th 537, 549.) Objectively, “ ‘this heat of passion must be 

such a passion as would naturally be aroused in the mind of an ordinarily 

reasonable person under the given facts and circumstances.’ ” (Steele, at 

p. 1252, quoting People v. Logan (1917) 175 Cal. 45, 49.) Subjectively, the 
8

“defendant must actually, subjectively, kill under the heat of passion.” (Steele, 

at p. 1252.) Here, too, Wiltshirebeal’s testimony that he was armed, angry and 

looking for a confrontation even before Delangel came out of the bar was 

sufficient for the jury to conclude that he did not act under the heat of passion. 

The jury could reasonably conclude that an ordinary reasonable person would 

not respond to a punch through a car window with four shots to the torso.

C. The Court Did Not Abuse its Discretion in Declining to Strike or Reduce 

the Sentencing Enhancement under 12022.53 Subdivision (d)

As noted above, in sentencing Wiltshirebeal, the court added twenty-five 

years to Wiltshirebeal’s sentence based on the jury’s true finding that during 

the offense, Wiltshirebeal discharged a firearm and caused great bodily injury 

(an enhancement based on the special allegation under section 12022.53 

subdivision (d)). On appeal, Wiltshirebeal argues that the trial court erred in 

failing to expressly find that dismissal or reduction of the subdivision (d) 

enhancement would endanger public safety because dismissal is presumed 

unless rebutted by a finding that dismissal would endanger public safety. 

Wiltshirebeal further argues that the court failed to give sufficient weight to

mitigating factors when it imposed the subdivision (d) enhancement. Among 

relevant mitigating circumstances were the facts that demonstrated that 

Wiltshirebeal had no prior record, he was under the age of 26 years old, the 

victim had stricken Perez, and the enhancement could result in a sentence 

over 20 years. He also presented the court with evidence that he had 

experienced psychological and physical childhood trauma, and coped with the 

trauma through excessive alcohol consumption. The court noted the factors in 

mitigation but declined to strike or reduce the enhancement. We review the 

denial of a motion to dismiss an enhancement for abuse of discretion. (People 

v. Flores (2021) 63 Cal.App.5th 368, 376.)
9

Our Supreme court recently addressed the issue of whether section 1385 

creates a rebuttable presumption in favor of dismissal and concluded that it 

did not. (People v. Walker (2024) 16 Cal.5th 1024.) In Walker, the Court 

explained the trial court’s proper use of section 1385, subdivision (c)(2)2 in 

deciding whether to strike an enhancement. The court held that:

“Stated simply, if the court does not conclude that 

dismissal would endanger public safety, then mitigating 

circumstances strongly favor dismissing the 

enhancement. But ultimately, the court must determine 

whether dismissal is in furtherance of justice. This 

means that, absent a danger to public safety, the presence 

of an enumerated mitigating circumstance will generally 

result in the dismissal of an enhancement unless the 

sentencing court finds substantial, credible evidence of 

countervailing factors that ‘may nonetheless neutralize 

even the great weight of the mitigating circumstance, 

such that dismissal of the enhancement is not in 

furtherance of justice.’ ”

(Walker, at p. 1036, quoting People v. Ortiz (2023) 87 Cal.App.5th 1087, 1098.)

Thus, if the trial court found substantial, credible evidence of 

countervailing factors, it could conclude that those factors neutralized the 

mitigating circumstances offered by Wiltshirebeal, even if the court did not 

find a danger to public safety.

2 Section 1385 subdivision (c)(2) provides in pertinent part that “[i]n 

exercising its discretion under this subdivision, the court shall consider and 

afford great weight to evidence offered by the defendant to prove that any of 

the mitigating circumstances in subparagraphs (A) to (I) are present.” The 

statute further provides that proof of one or more of these circumstances 

“weighs greatly in favor of dismissing the enhancement” unless the court finds 

that dismissal “would endanger public safety.” Endangering public safety is 

further defined as the likelihood that dismissal “would result in physical injury 

or other serious danger to others.” 
10

Here, the court specifically weighed mitigating factors and 

countervailing factors. As requested by defense counsel, the court reviewed 

the arguments of counsel, “consider[ing] alternatives as if I did have the 

discretion to select.” The court noted that the murder was “gratuitous, really 

no provocation” and the victim, who behaved “heroically” and nobly, was 

unarmed. As to Wiltshirebeal, the court stated that his words and actions 

showed that he “intended to provoke a response” from the people in the bar, 

and that his selection of a powerful weapon and specialized bullets made “clear 

what was in his mind.” The court further noted that “[t]here is nothing about 

the defendant’s background which the court has considered – the defendant’s 

use of alcohol, the defendant’s upbringing – that excuses his behavior [and] 

there is nothing that I find mitigating about what happened in this case. The 

sole responsibility lies at his feet.” 

Under the standard enunciated in Walker, it is clear from the sentencing 

colloquy that the court considered factors in mitigation but as a result of 

substantial and credible countervailing factors, the court concluded that 

reduction or dismissal of the enhancement would not be in the interest of 

justice.

It is true that the judge did not specifically state that dismissal of the 

enhancement would not be in furtherance of justice. Nonetheless, on appeal, 

“where a statement of reasons is not required and the record is silent, a 

reviewing court will presume the trial court had a proper basis for a particular 

finding or order.” (People v. Stowell (2003) 31 Cal.4th 1107, 1114.) From the 

court’s statement at sentencing, there can be no doubt that after considering 

the factors, the court concluded that dismissal or reduction of the enhancement 

was not in furtherance of justice.
11

Here, without provocation, Wiltshirebeal acted callously and with extreme 

violence. For a night on the town, he brought a “powerful weapon” and bullets 

intended to maximize damage, and when an altercation arose, he put the 

handgun in his waistband, even though no one else was armed, and then used 

it when the victim took a swing at his friend. Under these circumstances, the 

trial court’s implied finding that dismissal of the firearm enhancements would

not be in furtherance of justice can hardly be said to have been “so irrational or 

arbitrary that no reasonable person could agree with it.” (People v. Carmony

(2004) 33 Cal.4th 367, 377; accord People v. Mendoza (2023) 88 Cal.App.5th

287, 299.) 

DISPOSITION

The judgment is affirmed.

KELETY, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DO, J.