Filed 12/16/13 P. v. Salas CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

BENITO SANCHEZ SALAS,

Defendant and Appellant.

F063978

(Super. Ct. No. F09903456)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. Edward 

Sarkisian, Jr., Judge.

Athena Shudde, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney 

General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and Tiffany J. 

Gates, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

This case arises out of an altercation between members and friends of two families 

who lived in the 4600 block of East Turner Avenue, Fresno.1 As of June 2009, Maria 

Arceli Mendez (Arceli) and her husband, Jose Mendez (Jose), lived at 4677 with their 

children, who included Esmeralda Mendez (Esmeralda), Jose Balderas, Ruben Balderas

(Ruben), and Josue Balderas (Josue). The Salas family lived at the two addresses directly 

east of the Mendez residence. Benito Sanchez Salas (defendant), his daughter, and

Rebecca Hernandez (Hernandez) lived in the guest house at 4681, next door to the 

Mendez home. Defendant’s father Alberto Salas, Sr. (Alberto), mother Maria Nativad 

Sanchez (Maria Nativad), and brother Jose Salas (Sam) lived in the main house at that 

address. Defendant’s brother Antonio Sanchez Salas (Antonio) and Antonio’s son Junior

Jesse Salas (Junior Jesse) resided at 4687, the house immediately east of 4681.

Defendant’s brother Fabian Salas (Fabian) was staying at 4687 at the time. Defendant 

also had three other brothers: Miguel Salas (Miguel), Alberto Salas, Jr. (Junior), and 

Santos Salas (Santos). 

On June 11, 2009, family and friends gathered at the Mendez residence for a 

barbecue. A fistfight broke out between some of the Mendezes and some of the Salases, 

then gunfire erupted. As a result of these events, a jury convicted defendant of the first 

degree murders of Jose and Pablo Mendez (Pablo) (Pen. Code,2 § 187, subd. (a); counts 1 

& 2, respectively), and the attempted premeditated murders of Eulalia Mendez (Eulalia)

and Juan Mendez (Juan) (§§ 187, subd. (a), 664; counts 5 & 6, respectively).3 As to

 

1 For the sake of clarity and brevity, we refer to the addresses involved by number 

only. We also refer to certain individuals by their first names or the names by which they 

are commonly known. No disrespect is intended.

2 All statutory references are to the Penal Code.

3 The second amended information erroneously stated Eulalia’s first name as 

Eulabia. Juan was referred to throughout trial as Johnny Mendez.
3.

counts 1 and 2, jurors found true a multiple-murder special circumstance. (§ 190.2, 

subd. (a)(3).) As to all counts on which they convicted defendant, jurors found defendant 

personally and intentionally discharged a firearm. (§ 12022.53, subd. (c).)

4 Defendant’s

new trial motion was denied, and he was sentenced to two consecutive terms of life in 

prison without the possibility of parole, plus two consecutive terms of life in prison with 

the possibility of parole, plus 80 years. He was also ordered to pay restitution, as well as 

various fees, fines, and assessments. 

On appeal, we hold the evidence was sufficient to support the jury’s verdicts, and 

defendant could properly be convicted of homicide even after the jury deadlocked, and a 

mistrial was declared, with respect to Antonio. Accordingly, we affirm.

FACTS5

I

PROSECUTION EVIDENCE

As of June 2009, the Mendez and Salas families had been neighbors for years.6 

There had been no problems between the two groups until late 2008 or early 2009, when

Ruben began to have problems with Fabian and Antonio. On March 8, a fight that began

between Fabian and Ruben ended with defendant hitting and kicking Jose, and Ruben

 

4 Defendant was acquitted of the attempted premeditated murder of Anabel Vargas 

(Vargas), as charged in count 4. 

Antonio was jointly charged with defendant in counts 1 and 2, and was alleged to 

have personally and intentionally discharged a firearm, proximately causing death. 

(§ 12022.53, subd. (d).) Antonio alone was charged, in count 3, with the attempted 

premeditated murder of David Plascencia (Plascencia). He was not charged in counts 4 

through 6. He was jointly tried with defendant, but the jury was unable to reach a verdict 

on any of the charges against him, and a mistrial was declared. 

5 Although some witnesses did not know the names of the members of the Salas 

family, we have added those names where they have been established by other evidence. 

6 Undesignated dates in the statement of facts are to the year 2009.
4.

being hospitalized after Antonio struck him in the head. The police were called. 

Although no arrests were made, Arceli unsuccessfully attempted to get a restraining order 

against defendant, Fabian, and Antonio. After that, the Salases — particularly Fabian —

always tried to start trouble. The Mendezes called the police multiple times as a result. 

June 11 was elementary school graduation for Esmeralda and Junior Jesse. Arceli,

Jose, Ruben, Jose Balderas, and Fabian all were present at the ceremony. Afterward,

Fabian approached Ruben and they argued, with Fabian calling Ruben names and saying

something along the lines that he was going to kill Ruben or Ruben should “watch” when 

he got home. Arceli called the police and Fabian accused her of being a snitch. 

The Mendez family drove home in separate vehicles. When Arceli and her 

children arrived, Fabian and his parents were in front of the Salas home, but they did not 

say anything to Arceli. When Jose arrived, however, Fabian started insulting him and 

saying things like, “I’m going to fuck you guys all up. You guys are done.” Jose refused 

to fight Fabian and told him to calm down, and Arceli again called the police. The police

talked to both families, then left. Fabian again started yelling at the Mendezes from his 

house, calling them names and trying to get them to come outside.

Vargas arrived at the Mendez house around noon. Fabian was on the front porch 

at 4681, cursing and saying “disturbing” things. At one point, he waived a gun around 

and told Jose it was for him. Arceli called the police again. The officers talked to the 

Salases, then told Arceli everything was going to be fine, her family should continue with 

the barbecue they had planned, and the police would be patrolling the area.

The Mendezes went into the backyard and started barbecuing for Esmeralda’s 

graduation party. Family members and friends arrived at different times and went to the 

back to eat. During the two hours before the shootings, Vargas saw more and more 

people arrive at the Salases’ location, and heard the Salases — particularly Fabian —

trying to provoke Jose.
5.

After people ate, many went to the front yard to talk and watch the children play. 

Accounts of what happened next varied.

Pablo’s wife, Maria De Jesus Mendez (Maria De Jesus), saw Alberto and Maria 

Nativad arrive in a van. Maria Nativad got out, took out a gun, and gave it to one of the 

young men. The young man loaded the weapon and pulled back the top. Jose said to 

fight fair and not pull any guns. Vargas saw Alberto arrive in a van. He had something 

in a paper bag. From the way he carried it, Vargas surmised the bag contained guns. 

Alberto put the bag in the bed of Santos’s brown mini truck.

7 Vargas yelled at Jose to 

come back, that they had guns, but she did not believe he heard her. Ruben saw Alberto 

pull up in a van. He had a black plastic trash bag. Antonio, who already had a gun, and 

defendant went to Alberto’s location. When they came back out front, defendant had a 

gun.

8

Others first saw guns appear just before or during the time Fabian, possibly several 

other Salases, Jose, Pablo, and Juan walked out into the street, and Fabian and Jose 

started arguing. Ruben saw Antonio pointing a gun at everyone during the argument.

Juan, who got in front of Jose as they walked into the street, saw more than one gun, and

a gun being passed around. Johnny Mendez, Jr. (Johnny) saw Fabian pull a gun out of a 

truck. Fabian passed the gun to Antonio, and Antonio pulled back the slide. Fabian told 

him no. Fabian was putting the guns away, and Juan said to put the guns down and fight 

like a man or something to that effect. Fabian said, “fine, we’ll fight,” then handed the 

gun to Antonio, who left for a while. 

 

7 When interviewed by Detective Gray, Vargas said she saw the bag passed to 

Santos, who pulled out guns and passed them to someone else. 

8 Arceli also testified to seeing Alberto drive up in a van and get out holding a black 

garbage bag she suspected contained guns. However, she said this happened right after 

the police left after the first time she called them from the house. 
6.

Fabian lunged toward Jose, the two started fighting, and others joined in. Shortly 

after the fight started, shots were fired.

According to Hernandez, Antonio was inside his house until after the shootings, 

when he exited the residence and walked off. After the fight started, defendant shot into 

the air about four times as he walked toward the crowd, where Fabian and Miguel (who 

had intervened in the fight on Fabian’s behalf) were on the ground with a crowd of about 

13 other men beating them up. As defendant started walking toward the street, the 

Mendez family moved toward him. They looked angry. They surrounded him, then he 

fired and two people who were part of that group dropped to the ground.9

According to Arceli, Jose was on top of Fabian when Antonio came from one side, 

shot Jose, and then shot Pablo. Defendant then moved closer and Antonio handed him 

the gun. Defendant immediately began firing “at all the people.” Antonio got on a 

bicycle and left. While defendant was firing, Maria Nativad was yelling at her sons to 

kill everybody, even the mother, and not to let anybody live. 

Christina Acosta (Acosta) saw Fabian hovering over one of the Mendezes, hitting 

him, when defendant, who had a gun, ran from the area of the gate at 4681 to the street. 

He was “shooting all over the place” as he ran. He first aimed toward the middle of the 

street, then fired in different directions. When he reached the middle of the street, he 

stopped running and fired more shots. Defendant was the only person Acosta saw with a 

gun, although she heard shots before she saw him shooting. She did not see anyone give 

him a gun. She did not see Antonio at the scene.

According to Jose Balderas, Antonio fired at least two shots toward Jose and 

Pablo. He was six or seven to 10 feet from Jose at the time he fired. Pablo was a couple 

 

9 When interviewed by Gray, Hernandez consistently said she did not see anyone 

with guns or the shooting. Gray told her that if the shooting was self-defense, she should 

tell him and explain what happened. She never gave any explanation. 
7.

of feet behind Jose. Jose Balderas ducked down behind a car. He saw Antonio ride off 

on a bicycle, but, although he only saw the one gun, he continued to hear shooting after 

Antonio was gone.10

Emmanuu Sandoval (Sandoval) told Detective Federico that he saw three firearms 

at the scene. Antonio was waving a gun as he came running from his house, and 

defendant and Junior also had firearms. Antonio, who was several feet away from Jose, 

pointed at Jose’s head and shot him. Sandoval surmised Antonio also shot Pablo, 

because Pablo and Jose fell at the same time. Sandoval said guns were handed to Miguel 

and defendant. After Jose and Pablo fell, Sandoval hid between two cars and heard 

several more gunshots. He gave the impression there were multiple weapons being fired 

at the same time. 

According to Ruben, defendant shot Jose. Ruben did not remember how many 

times defendant fired, but “it was a lot.” He was not able to see what Antonio was doing 

while defendant was firing.11

Juan was face down on the ground when he heard three shots and then a big boom. 

He looked up and saw people running everywhere and Pablo lying next to him. As he 

was getting up, he saw someone pointing a gun at him. He looked the other way, heard a 

bang, and thought he was hit, but he was not. He did not recall if this person fired at him, 

 

10 Shortly after the shooting, Jose Balderas told Officer Alvarado that he saw 

Antonio fire approximately nine times, and that he did not see anyone else with a 

weapon. When interviewed by Gray later that night, Jose Balderas said he saw Antonio 

put the gun in his pocket and flee on a bicycle. 

11 When interviewed later the same day by Detective Byrd, Ruben said either 

defendant or Miguel (whom Ruben could not tell apart) shot Jose and Pablo. Asked 

specifically if he ever saw a handgun passed between Antonio and defendant, Ruben 

stated he did not. 
8.

but the person was firing toward all the people who were at Jose’s house.12 Juan heard 

seven shots after that. 

Johnny heard a gunshot and saw Jose fall. When Johnny looked for the gun, he 

saw Antonio firing. Antonio shot three times. Johnny then moved over by Hector 

Balladares’s (Balladares) vehicle. He saw Balladares with a shotgun or rifle and heard 

him fire it. Although he did not see where Balladares was aiming when he fired, he 

remembered Balladares standing with the gun by the door of his vehicle, aiming up.

Johnny then saw defendant, “in a panic,” shooting randomly. Johnny heard about seven 

shots fired after the shotgun. He saw defendant fire the last two shots. Defendant had a 

different gun than the one Johnny saw Antonio fire.13

Balladares retrieved his shotgun from his vehicle when he saw two people with 

guns. He heard three shots, but did not see who fired them. He heard someone say, 

“Shoot the mom” or “Get the mom,” then saw defendant trying to shoot first Eulalia and 

then Juan. Wanting defendant to stop firing, Balladares fired his shotgun up in the air. 

Defendant was not the same person Balladares first saw with a gun. Balladares heard six 

to eight shots after he fired his shotgun.14

During the argument in the street, Plascencia saw a man with a gun run to the 

street from the area of 4681 or 4687. Jose told him to put the gun down, then Juan and 

another man started fighting. The man with the gun moved to the sidewalk. He had the 

gun hidden, but Plascencia knew he had it because he did not give it to anyone. When 

 

12 Arceli told Gray that defendant fired at Juan. 

13 In his subsequent statement to law enforcement, Johnny said Antonio was the only 

person he saw firing, although he knew defendant also fired because he had been told 

that. 

14 When shown photographic lineups containing defendant’s and Antonio’s pictures, 

Balladares said defendant was the person he saw on the news, and Antonio looked like 

the shooter. 
9.

other people jumped into the fight against Juan, Plascencia ran to try to separate them. 

As he did, he was shot in the side of the face. Although Plascencia did not see who shot 

him, he believed it was Antonio because Antonio was at the location that lined up with 

the shot, and he was the only one Plascencia saw with a gun.

Vargas observed one gun being put away, but another gun being taken from the 

mini truck and passed hand to hand, so it was moving to the front of the group of people 

associated with the Salases. Finally, one of that group fired three shots, then handed the 

gun to defendant, who was the person behind him. The person who fired first aimed each 

shot, whereas defendant “seemed like he was shooting ducks out there.”15 Defendant and 

Vargas made eye contact, and defendant swung the firearm toward her. She threw herself 

to the ground and heard the gun fire.

According to Eulalia, Antonio ran from 4681 with a pistol in his hand and shot 

Jose and Pablo. Eulalia saw and heard three shots, went to Jose, and then heard Maria 

Nativad say, “kill the mother.” Eulalia saw defendant pointing a gun at her. He fired, 

she turned, and the shot went by her, between her shoulder and her ear.16

 

15 Vargas did not know the Salases, although Jose had identified some of them for 

her earlier. During the incident, she concentrated on the clothing worn by the shooters. 

When interviewed by Alvarado shortly after the shootings, she said Antonio produced a 

firearm and began shooting at Jose. She believed Antonio fired about nine times, and 

may have handed the firearm to defendant, who also fired at Jose. She also said Antonio 

left the area on a bicycle. When interviewed by Gray, she described the person who fired 

the first three rounds as wearing a dark blue Polo shirt; he then handed the gun off to a 

person wearing a dark blue tank top, and the second person fired five times. Defendant 

was detained at the scene shortly after the shooting. He was wearing a dark blue tank 

top. 

16 Vargas recalled Maria Nativad pointing at Eulalia and stating “shoot the mom,” 

but did not remember anyone firing in Eulalia’s direction. However, Gray found physical 

evidence to support the idea that shots were fired at Juan and Eulalia as they tended to the 

victims. 
10.

According to Esmeralda, Jose and Fabian were on the ground, fighting, when

Antonio came from the side and shot Jose and Pablo. Antonio was “very close” to Jose 

when he fired, hitting Jose in the head.17 Antonio then left on a bicycle. Esmeralda did 

not know where defendant was when Jose was shot, but after, she saw defendant shooting 

at “everybody” on the Mendez side. Esmeralda did not see where defendant obtained his 

gun.18

Officer Taylor arrived on the scene three minutes after being dispatched to a call 

of men arguing. A number of people ran toward his patrol car, yelling that those

involved in the shooting were still at the location. They led Taylor to one of the Salas 

residences and pointed out defendant and Miguel, who were standing in the front yard. 

Neither had a weapon. However, results of a gunshot residue examination subsequently 

conducted on defendant were consistent with him having fired a firearm.

Officer Ruiz conducted in-field showups on the evening of the shooting with Jose 

Balderas, Josue, Juan, and Ruben, in which each was shown defendant and Miguel. Jose 

Balderas said “Tony Salazar” was the shooter, defendant had encouraged Fabian to fight, 

and Miguel was also fighting.19 Jose Balderas said he did not see defendant with a gun. 

The other three all identified defendant as the shooter. Ruben stated there was only one 

shooter and defendant was the person who shot Jose and Pablo. Juan identified defendant 

as the shooter and said defendant shot at him, but Juan ducked.

 

17 Esmeralda demonstrated the distance for Federico, who estimated it was nine to 11 

feet. 

18 In her call to 911, Esmeralda identified defendant as the person who shot Jose and 

Pablo. At trial, she explained it was really Antonio she saw; at the time of the shooting, 

she panicked and got Antonio’s and defendant’s names mixed up. 

19 When shown photographs by Gray, Jose Balderas identified Antonio as the 

“Tony” who shot Jose and Pablo. 
11.

Autopsies revealed Pablo was shot in the left side of the head from a distance of 

more than two and one-half to three feet. He also was grazed by a bullet on the left side 

back. The cause of his death was “perforation of the brain due to gunshot wound to the 

head.” Jose suffered a penetrating gunshot wound to the left parietal region of the head. 

The bullet was fired from a distance of more than two and one-half to three feet. The 

cause of his death was “penetration of the brain due to gunshot wound to the head.” 

Two expended 10-millimeter shell casings were found in proximity to the porch 

area of 4681, then seven such casings in a group, then two more. The existence of 11 

expended shell casings indicated the weapon was fired 11 times. Based on the physical 

evidence at the scene and his investigation, Gray concluded one handgun and one 

shotgun were fired during the incident.20

Gray listened to the Hernandez and Acosta 911 calls in which the shots could be 

heard. The first and second shots were almost a second apart. There was then a pause of 

just under one second, then a series of six shots, each separated by approximately onequarter to one-half of a second. There was then a pause of over 13 seconds between the 

eighth and ninth shots, just under two seconds between the ninth and 10th shots, slightly 

more than four seconds between the 10th and 11th shots, and just over six seconds 

between the 11th and 12th shots. The shotgun blast was the 10th shot. Gray determined 

it was physically possible to pass the gun to another person in the time span between the 

second and third shots.

A magazine from a Glock 10-millimeter handgun, and an empty holster that fit a

Glock 10-millimeter handgun and in the pouch of which was a loaded magazine for the 

same type of firearm, were found in the living room of 4681. A black nylon pouch 

containing a 10-millimeter magazine was found in one of the bedroom closets. At 4687, 

 

20 Numerous bullet strikes and bullet holes were found in structures west of the 

Mendez residence. The shotgun was only fired once. 
12.

a pouch of the type used to hold a set of handcuffs, a plastic holster, and an open but 

lockable handgun case labeled “Glock” were found. A box of live nine-millimeter 

ammunition and a magazine for a Glock nine-millimeter handgun were in the gun case. 

In a box in the detached garage was a Glock nine-millimeter semiautomatic handgun that 

had one round in the chamber and five in the 10-round-capacity magazine, and that fit the 

holster found in the bedroom. The firearm was registered to Antonio. A Glock 10-

millimeter handgun, that was subsequently determined to have been used to fire the 11 

cartridge casings recovered from the scene, was found hidden in a woodpile behind the 

garage. This gun had a bullet in the chamber and three in the 15-round-capacity 

magazine.21

The 10-millimeter handgun belonged to Purdy Rivera (Rivera), defendant’s 

employer. When Rivera saw on the news that defendant had been arrested for a crime

involving a firearm, he checked the storage container in his office and discovered his gun, 

extra clips and ammunition, and holster were missing. Rivera could not recall whether 

defendant was employed on June 11, or if he was doing other things at the time because 

work was slow. However, defendant knew the firearm was in the storage container.

Rivera did not give defendant or anyone else permission to take the gun. At one point, 

Rivera and defendant, whom Rivera knew was having problems related to his neighbors, 

discussed the gun, and Rivera told defendant that Nathan Hammer, another of Rivera’s 

employees, might have it. 

 

21 Bullet fragments recovered from various people and locations were either 

unsuitable for comparison, or shared rifling characteristics with bullets that were test 

fired from the gun, but, based on a lack of individual characteristics, yielded inconclusive 

results. However, the nine-millimeter gun that was found was excluded as having fired 

those bullets. For practical purposes, all the ballistic evidence at the scene came from the 

10-millimeter Glock. 
13.

Gray and Federico interviewed Antonio a day or so after the shooting, when 

Antonio turned himself in after seeing on television that the police were looking for him. 

Antonio related that the Mendez sons, who were in high school, tried to beat up Junior 

Jesse, who was 12. Antonio talked to the father, who said he would talk to his son, and 

things “just went off from there.” According to Antonio, the Mendez teenagers and their 

father then tried to beat up Fabian at Junior Jesse’s graduation. Fabian telephoned 

Antonio, who had to work that day, to tell him what happened, but Fabian was not upset. 

Antonio related that when he got home from work about 5:30 p.m., Junior Jesse 

came running in and said the Mendezes were “jumping” Fabian. As Antonio came 

outside to help Fabian, he heard 12 or 13 shots and what sounded like a shotgun.22 He 

grabbed Junior Jesse and ran. He did not see anyone with guns or know, at the time, 

whether anyone was shot. 

Antonio related that he had one weapon at his house — a nine-millimeter Glock 

that was locked in a box in the closet of his bedroom. He expressed surprise when told 

the gun was found at a different location, and said nobody in his household knew he had 

the gun, and he had the key to the lock. Antonio denied being involved in the altercation 

with the Mendezes, near the crowd of people fighting, or having a weapon in his hands.

As far as Antonio knew, none of his brothers owned a gun.

II

DEFENSE EVIDENCE23

Stephen Cloyd testified as an expert regarding shotguns and ammunition. He

concluded the location at which the wadding from Balladares’s shotgun was found was 

 

22 Antonio once took classes to be a security guard. 

23 In light of the unified nature of the defense presented at trial by defendant and 

Antonio, we treat all defense evidence as having been adduced on behalf of defendant, 

regardless of who actually called the witness.
14.

inconsistent with that gun having been fired up into the air. Rather, the shotgun was 

basically parallel to the ground and had to have been aimed toward the east.

On the night of the shooting, Josue was asked to view an in-field showup. He 

identified defendant as the person who shot Jose. He did not actually see defendant shoot 

Jose, he just saw defendant shooting, and that was why he thought defendant was the 

perpetrator.

After defendant was detained following the shooting, Josue attacked him and was 

arrested as a result. He told the arresting officer that defendant and Antonio had guns and 

were shooting, and that Antonio shot and killed Jose. Josue told the officer that he saw 

Antonio pull a chrome gun, possibly a .45, from an unknown location and begin shooting. 

The gun Josue saw in Antonio’s possession was a different gun than the one he saw in 

defendant’s possession.

Miguel did not reside on East Turner at the time of the shooting, but was aware of 

tension between the Mendez family and his, particularly Fabian and Ruben. So far as he 

knew, defendant never had any problems with the Mendezes. After the incident on 

March 8, however, defendant was frustrated and worried. On or shortly after that day, 

defendant and Miguel drove to the Sanger residence of Nathan Hammer, who gave 

defendant a shoe box containing a gun. Defendant took it home.

On June 11, Miguel went to his parent’s house around 11:00 a.m. or noon, after he 

got off work. When he arrived, a police officer was talking to defendant and Fabian.

Miguel remained at the house until around 1:00 p.m., then left.24

 

24 According to Maria Nativad, she, Alberto, and Sam worked that day, harvesting 

oranges. They started at 6:00 a.m. and arrived home around noon or 1:00 p.m. They 

traveled in Alberto’s van. That day, as they frequently did, they brought oranges home 

with them. One of them took the oranges inside in a plastic bag. At no time did Maria 

Nativad see Alberto with a bag full of guns. 
15.

Miguel returned to his parents’ house around 5:00 p.m. There was a large 

gathering at the Mendez house. Jose and Juan were calling Fabian names and cussing at 

him. Fabian responded by staring back at them. Seven or eight of the group at the 

Mendez house started walking toward the street. Fabian and Miguel responded by also 

going toward the street. Juan challenged Fabian to fight, and there was a lot of hollering 

back and forth. Antonio and defendant were not out there. 

Fabian and Juan exchanged blows, and Fabian landed a hard one that made Juan

step back. The others then rushed Fabian. Miguel saw someone with a knife, and so he 

ran to try to get people off of Fabian, who was on the ground. Miguel struck Jose, then 

was himself hit in the back of the head. Miguel was on the ground near Fabian when he 

heard rapid shots. He did not know how many. He did not see who was shooting, and 

had not seen anybody with a gun. Everyone, including Miguel, ran. 

Miguel ran to Antonio’s house. He did not see Antonio or Junior then, but 

defendant came inside when Miguel was already there. Miguel did not hide a gun. He 

did not know what defendant may have done. 

Defendant testified that on March 8, he was at a grocery store when he got a phone 

call that something was happening at the house. When he arrived home, he saw Alberto

and Antonio shaking hands with Jose. Defendant did not find this unusual, because they 

had had arguments before, then would discuss it and shake hands. 

Defendant was sitting on the porch when he saw a group of youngsters coming 

from across the street, and observed words being exchanged between Fabian, Ruben, and 

Sandoval. Those three suddenly got into a fistfight. Jose threw a beer bottle at 

defendant, who by this time was standing next to Alberto, and defendant and Antonio 

became involved in the fight. Defendant hit Jose and knocked him down. Jose started 

making threats and saying he was going to kill Fabian, and he also mentioned Alberto, 
16.

Maria Nativad, and defendant.25 The next day, when Jose was sober, he came over and 

apologized to Alberto.

After the incident, defendant pleaded with the responding police officer to arrest 

both him and Jose, so they could resolve their issues, but the officer would not.

Defendant subsequently telephoned Rivera, then drove to his house with Miguel.

Defendant explained the situation, and asked if Rivera thought it would be wise for 

defendant to obtain a gun. Rivera thought it would be, and offered to lend defendant his 

firearm. Rivera said Nathan Hammer had it at his residence, so defendant and Miguel 

drove to Sanger and got the gun. Defendant and Miguel returned home, and defendant 

put the gun in the guest house and then later hid it in a cabinet in Maria Nativad’s 

kitchen. No one else knew where it was.

On June 11, defendant had to take care of some errands. He did not know about 

the elementary school graduation. When he arrived home, he talked to Fabian about what 

had gone on at the school.26 The police arrived and talked to Fabian and members of the 

Mendez family, but did not do anything. 

 

25 Defendant had never seen Jose with a weapon, but had heard shots next door. 

According to Maria Nativad, Jose frequently shot from his side of the dividing fence, 

near her bedroom window. 

26 As Fabian was leaving the school after the graduation ceremony, he ran into Jose, 

Ruben, and some other members of the Mendez family. Ruben said something about 

beating Fabian, who gave him a smirk and left. Fabian did not think it was the place to 

start anything, so he told Junior Jesse to go with him. When Junior Jesse did not want to 

go, Fabian left him there. The Mendez family almost walked Fabian to his car, as if they 

were escorting him. When he got home, he went to 4681 and told Alberto what had 

happened. Fabian was angry, because it had been his nephew’s graduation and the 

Mendezes had “intimidated [Fabian] out of the school.” Fabian, who admitted having a 

temper and being known for fighting a lot, told his father that he wanted to fight Jose. 

Fabian was in his yard when “carloads” of people arrived. He was getting 

threatened, and Jose was walking around in his front yard with a towel on his hand, 

acting like he was going to shoot Fabian and saying he was going to shoot them. Fabian 
17.

Later that afternoon, defendant saw a lot of males next door to 4681. This 

concerned defendant, because only his parents and Sam, who is somewhat slow mentally, 

lived in the front house. Defendant entered his parents’ house and encountered Alberto

coming out of his bedroom. He was on the telephone, and handed it to defendant. Al 

Alarcon, who owned a real estate and construction business and had been acquainted with 

the Salas family and advised Alberto for years, was on the phone. He advised defendant 

to go to the courthouse and take out some restraining orders against the Mendezes. 

Defendant walked outside while still on the phone, and saw 40 people he believed

were coming to kill Alberto. The group was walking toward the driveway at 4681. 

Defendant saw Fabian in the middle of the street with seven to eight people around him. 

They were arguing, and it appeared they were getting ready to fight. Defendant did not 

see anyone with a weapon at that point, and he walked out to where they were going to 

fight. As he got closer, he noticed a Hispanic male with what defendant believed to be a

rifle, walking by the cars.27

Afraid Fabian would be killed, defendant ran to 4681 and grabbed the gun out of 

the kitchen cabinet. He chambered a round and ran back outside, firing two or three shots 

into the air as he went. He ran to the location he believed allowed him the best chance of 

finding the person with the rifle, and he saw Fabian getting beaten up. Defendant fired at 

Jose and another individual who were kicking Fabian. Defendant believed he fired five 

to six rounds at those people, although he did not know how many exactly. He “was just 

shooting.” 

 

did not see a gun at that time, although he had seen Jose with a gun before. Fabian spoke 

to defendant, then called the police and told them he wanted it resolved. 

27 Defendant explained that he was not familiar with guns and could not distinguish 

shotguns from rifles. 
18.

After defendant fired the first five or six shots, he told everybody to get back. He 

panned the gun so people would know he meant business. He did not want anyone 

around him, because he was looking for the man with the rifle. People stayed away from 

him. 

As defendant was panning the gun, he saw the man with the rifle. The man came 

from behind Balladares’s truck, lifted the rifle, and fired it defendant’s way. Defendant 

fired three or four times in that direction. He may have fired one or two more shots after 

that. As far as he was aware, he never fired at Vargas, Eulalia, or Juan. He never 

directed any of his shots into the Mendez yard or at the Mendez house. He had no idea at 

the time that Plascencia had been hit. 

Defendant believed that had he not started shooting, Fabian would have died.

Defendant had no idea where Antonio was at the time. There was “no way” Antonio 

could have had Rivera’s gun; to defendant’s knowledge, Antonio did not even know 

defendant had the gun.28

After the shooting, defendant ran to Antonio’s house and hid the gun in back of 

one of the garages there. He did not see Antonio any time during the incident.

Defendant came back out into the front yard when the police officers arrived and turned

himself in. He did not tell officers that he had to defend his brother. When asked what 

he saw, he gave “a bunch of bullshit.”29

 

28 According to Maria Nativad, Antonio was not on good terms with the rest of the 

family at this time. Although he was welcome at his parents’ home, he would not go 

there. 

29 Officer Jaime was assigned to watch defendant after defendant was detained. 

Defendant related that he was in the backyard when he was told someone was fighting 

with Fabian. He went to the front yard and saw seven Hispanic males beating one 

Hispanic male who was lying on the street. Defendant said he did not know who the 

person was, and did not know who was fighting because everything happened so fast, but 

it could have been Fabian. Defendant said nothing about Fabian getting killed or 

thinking he had to run out there with a gun to save his life. Although he mentioned 
19.

Antonio testified that in approximately 2007 or 2008, he purchased a ninemillimeter Glock semiautomatic firearm from a store in Fresno because he was planning 

to be an armed security guard. The gun came in a lockable box with two magazines. 

Antonio also bought ammunition, handcuffs, and a handcuff case. Antonio kept the gun 

in his bedroom closet. He did not store it loaded.

On March 8, Alberto talked to Jose, then called Antonio, who was at Antonio’s 

house, over.30 Antonio and Jose talked, and Jose said he would talk to his son, and 

Antonio should talk to Antonio’s son. Antonio and Jose were shaking hands; in 

Antonio’s mind, everything was settled. However, he then saw Ruben and Sandoval 

walking toward Sandoval’s house, and Fabian coming. Ruben, Sandoval, and Fabian 

started arguing, then fighting. Antonio started to walk over to them, but Jose’s friend 

grabbed and held him, and Josue came from the side and hit Antonio with brass knuckles. 

Antonio freed himself, then hit Ruben on the side of the head. 

Between March 8 and the day of the shooting, Antonio did not have any further 

problems with the Mendez family. He never displayed his gun to, or pointed it at, any of 

them. 

On June 11, Antonio was unable to go to Junior Jesse’s elementary school 

graduation, because he had to work. Fabian went in his place. Fabian subsequently 

telephoned Antonio and said he was having problems with the neighbors at school, and 

 

Fabian having a problem with the neighbors, he said nothing about his parents being 

threatened by them. Defendant said he did not see anyone fire a handgun. However, a 

shot was fired in his direction by a Hispanic male with a black shotgun, who first pointed 

the shotgun at the group of males in the street. Defendant told Jaime he did not recall 

exactly what happened because it happened fast. 

30 The only issue Antonio had had with a member of the Mendez household as of 

this time was Ruben arguing with Junior Jesse on one occasion. When Antonio asked 

what the problem was, Ruben said he was just teasing Junior Jesse. Antonio asked 

Ruben to please leave Junior Jesse alone, and Ruben said he would. 
20.

that they had tried to jump him. Fabian wanted Antonio to come home, but Antonio 

could not, and he told Fabian just to stay inside.

During the course of the day, Fabian probably called Antonio three times. During 

one of the calls, Fabian said there were a lot of people over there, starting trouble with 

him. Antonio, who still could not leave work, again told him to stay inside.

Antonio finally got home around 5:30 p.m. At some point, Junior Jesse came 

running in and said “they” were jumping Fabian. Antonio assumed he meant the 

Mendezes, because Fabian was having problems with them. Because he had seen a lot of 

people when he arrived home, Antonio grabbed his gun from its unlocked box, stuck in 

one of the magazines, and started outside. As he was running from his house with Junior 

Jesse behind him, he heard shooting. When Antonio actually got outside, he saw a group 

of people and smoke. He did not see who shot or know if anybody got shot. He threw 

his gun in the garage, then he and Junior Jesse jumped the fence and took off. Antonio 

did not stay to find out what was going on, because there were a lot of people and he did 

not know who was shooting. He was scared and did not want his son to get hurt. He 

dropped the gun because he did not have a permit to carry it as a concealed weapon and 

did not want to be carrying it around. The next day, someone told Antonio that they had 

seen on television that the police were looking for him. Antonio promptly turned himself 

in. 

Antonio denied shooting anyone or passing a gun to defendant. Antonio and 

defendant “didn’t talk.” If they saw each other, Antonio would merely wave. They did 

not have any kind of relationship, and Antonio was unaware defendant had a gun. 

Shooting someone did not seem like something defendant would do.
21.

DISCUSSION

I

SUFFICIENCY OF THE EVIDENCE

Defendant contends his convictions must be reversed, or at least reduced, because 

(1) there is insufficient evidence of specific intent to kill, as required to sustain the 

attempted murder verdicts, and (2) there is insufficient evidence to support the jury’s 

findings of premeditation and deliberation with respect to all the verdicts.

The governing legal principles are settled. The test of sufficiency of the evidence 

is whether, reviewing the whole record in the light most favorable to the judgment below, 

substantial evidence is disclosed such that a reasonable trier of fact could find the 

essential elements of the crime beyond a reasonable doubt. (People v. Johnson (1980) 26 

Cal.3d 557, 578; accord, Jackson v. Virginia (1979) 443 U.S. 307, 319.) Substantial 

evidence is that evidence which is “reasonable, credible, and of solid value.” (People v.

Johnson, supra, at p. 578.) An appellate court must “presume in support of the judgment 

the existence of every fact the trier could reasonably deduce from the evidence.” (People 

v. Reilly (1970) 3 Cal.3d 421, 425.) An appellate court must not reweigh the evidence 

(People v. Culver (1973) 10 Cal.3d 542, 548), reappraise the credibility of the witnesses, 

or resolve factual conflicts, as these are functions reserved for the trier of fact (In re 

Frederick G. (1979) 96 Cal.App.3d 353, 367). “Where the circumstances support the 

trier of fact’s finding of guilt, an appellate court cannot reverse merely because it believes 

the evidence is reasonably reconciled with the defendant’s innocence. [Citations.]” 

(People v. Meza (1995) 38 Cal.App.4th 1741, 1747.) This standard of review is 

applicable regardless of whether the prosecution relies primarily on direct or on 

circumstantial evidence. (People v. Lenart (2004) 32 Cal.4th 1107, 1125.)

With these principles in mind, we examine defendant’s claims.
22.

A. Intent to Kill

“An attempt to commit a crime occurs when the perpetrator, with the specific 

intent to commit the crime, performs a direct but ineffectual act towards its commission. 

[Citations.]” (People v. Marshall (1997) 15 Cal.4th 1, 36.) Attempted murder “‘requires 

the specific intent to kill and the commission of a direct but ineffectual act toward 

accomplishing the intended killing.’ [Citations.]” (People v. Smith (2005) 37 Cal.4th 

733, 739.) Implied malice — a conscious disregard for life — does not suffice, even 

though it would for murder itself. (People v. Stone (2009) 46 Cal.4th 131, 139-140; 

Smith, supra, at p. 739.)

A defendant’s intent is rarely provable by direct evidence. Rather, such intent 

“‘must usually be derived from all the circumstances of the attempt, including the 

defendant’s actions. [Citation.]’” (People v. Smith, supra, 37 Cal.4th at p. 741.) This is 

so even with respect to the intent to kill (express malice) required to convict a defendant 

of attempted murder. (Ibid.) The California Supreme Court has explained: “[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 with express malice. 

That the shooter had no particular motive for shooting the victim is not dispositive, 

although ..., 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. [Citation.]” (Id. at p. 742.) “[E]ven if the shooting was not 

premeditated, with the shooter merely perceiving the victim as ‘a momentary obstacle or 

annoyance,’ the shooter’s purposeful ‘use of a lethal weapon with lethal force’ against the 

victim, if otherwise legally unexcused, will itself give rise to an inference of intent to kill. 

[Citation.]” (Ibid.)
23.

“‘Whether a defendant possessed the requisite intent to kill is, of course, a 

question for the trier of fact. While reasonable minds may differ on the resolution of that 

issue, our sole function is to determine if any rational trier of fact could have found the 

essential elements of the crime beyond a reasonable doubt. [Citations.]’ [Citation.]” 

(People v. Gonzalez (2005) 126 Cal.App.4th 1539, 1552.)

Defendant was convicted of attempting to murder Eulalia and Juan. The evidence 

adduced at trial is set forth at length, ante, and we need not repeat it here. We note, 

however, that Acosta told Gray she saw defendant shooting between cars at the victims. 

Arceli told Gray defendant was shooting at people and “just missing.” Esmeralda told 

Federico that defendant shot at Juan. Eulalia testified that when she lifted her head after 

looking at the bodies, she heard Maria Nativad say to kill the mother. Eulalia looked up 

again, saw defendant point the gun at her, and turned to the left. He then shot at her. She 

lifted her head again to look at him and she turned again, and he shot at her again and the 

shot passed by her, between her shoulder and her ear. Eulalia estimated that when 

defendant fired, he was about five or six feet from her. He then pointed the gun at Juan’s 

head, but the police arrived at that moment. Juan testified that he was face down in the 

middle of the street when he heard shots and then a boom, and as he was getting up, he 

looked up and saw someone (which other evidence showed was defendant) pointing a 

gun at him. He looked the other way, heard a bang, and thought he was hit, but he was 

not. He did not recall if defendant fired at him, but defendant was shooting toward all the 

people who were at Jose’s house. Balladares testified that the person he saw with the 

weapon was close to Eulalia and Juan, and that, although Balladares did not see him 

shoot anybody at that point, the gun was pointing at their heads.

The foregoing evidence clearly is sufficient to permit a rational trier of fact to 

conclude defendant specifically intended to kill Eulalia and Juan. Defendant argues, 

however, that the “weight of the testimonial evidence” is that he was firing wildly, 

without any particular aim. The record contains evidence supporting such a scenario, or 
24.

at least supporting the notion defendant was firing randomly into the crowd associated 

with the Mendezes. However, “[o]ur task is not to determine, for example, whether the 

weight of the evidence might favor [a lesser verdict] for either or both victims. Our task 

is to determine whether there was sufficient evidence by which a rational jury could 

decide” defendant harbored a specific intent to kill both victims. (People v. Nazeri 

(2010) 187 Cal.App.4th 1101, 1111.)

The California Supreme Court has determined that a person who intends to kill 

can be guilty of attempted murder even if the person has no specific target in mind. “An 

indiscriminate would-be killer is just as culpable as one who targets a specific person.” 

(People v. Stone, supra, 46 Cal.4th at p. 140.) Moreover, even if defendant was firing 

wildly at times, this does not mean he did not harbor a specific intent to kill particular 

named individuals. The evidence to which defendant now points was before the jury —

as was the evidence supporting a finding he specifically intended to kill Eulalia and Juan. 

(See People v. Houston (2012) 54 Cal.4th 1186, 1218-1219; People v. Jackson (1989) 49 

Cal.3d 1170, 1201.)

“‘[A]ppellants often mistakenly assume that, if the evidence against the judgment 

greatly preponderates, a reversal is proper because of the absence of a substantial 

conflict. [¶] The test, however, is not whether there is substantial conflict, but rather 

whether there is substantial evidence in favor of the respondent. If this “substantial” 

evidence is present, no matter how slight it may appear in comparison with the 

contradictory evidence, the judgment will be affirmed.... “Of course, all of the evidence 

must be examined, but it is not weighed. All of the evidence most favorable to the 

respondent must be accepted as true, and that unfavorable discarded as not having 

sufficient verity to be accepted by the trier of fact. If the evidence so viewed is sufficient 

as a matter of law, the judgment must be affirmed.” [Citations.]’ [Citation.]” (In re 

Gustavo M. (1989) 214 Cal.App.3d 1485, 1497.) “Conflicts and even testimony which is 

subject to justifiable suspicion do not justify the reversal of a judgment, for it is the 
25.

exclusive province of the trial judge or jury to determine the credibility of a witness and 

the truth or falsity of the facts upon which a determination depends. [Citation.] We 

resolve neither credibility issues nor evidentiary conflicts; we look for substantial 

evidence. [Citation.]” (People v. Maury (2003) 30 Cal.4th 342, 403.)

The evidence here was clearly sufficient to support a finding of intent to kill. 

Eulalia testified that she perceived the bullet, which was fired from mere feet away, going 

past her head and neck area. This bullet easily could have inflicted a mortal wound had 

defendant’s marksmanship been better. (Cf. People v. Ramos (2011) 193 Cal.App.4th 43, 

48.) Although it is unclear whether defendant actually fired at Juan, the jury reasonably 

could have concluded defendant was preparing to inflict what he intended to be a fatal 

shot, when the fortuitous arrival of the police stayed his hand. (Cf. People v. Nelson 

(2011) 51 Cal.4th 198, 212-213.) “‘[T]he law of attempts would be largely without 

function if it could not be invoked until the trigger was pulled ....’” (Id. at p. 212.)

Defendant is seeking to have us reweigh the evidence. That is not our function. 

Substantial evidence supports the attempted murder convictions.

B. Premeditation and Deliberation

In order to sustain a verdict of first degree murder on a theory of deliberation and 

premeditation, more must be shown than an intent to kill. (People v. Harris (2008) 43 

Cal.4th 1269, 1286.)31 “In this context, ‘premeditated’ means ‘considered beforehand,’ 

and ‘deliberate’ means ‘formed or arrived at or determined upon as a result of careful 

thought and weighing of considerations for and against the proposed course of action.’ 

[Citations.]” (People v. Mayfield (1997) 14 Cal.4th 668, 767; accord, People v. Jurado 

(2006) 38 Cal.4th 72, 118.) Thus, “[a]n intentional killing is premeditated and deliberate 

 

31 Although the pertinent cases most often involve murder, the legal principles are 

equally applicable to the question whether an attempted murder was premeditated and 

deliberate. (See, e.g., People v. Gonzalez (2012) 54 Cal.4th 643, 663-664; People v. 

Lenart, supra, 32 Cal.4th at p. 1127.)
26.

if it occurred as the result of reflection rather than unconsidered or rash impulse. 

[Citations.] However, the requisite reflection need not span a specific or extended period 

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

judgment may be arrived at quickly. [Citations.]” (People v. Nelson, supra, 51 Cal.4th at 

p. 213.) “Evidence concerning motive, planning, and the manner of killing are pertinent 

to the determination of premeditation and deliberation, but these factors are not exclusive 

nor are they invariably determinative. [Citation.]” (People v. Silva (2001) 25 Cal.4th 

345, 368.) Rather, they are merely a framework for appellate review, and need not be 

present in any particular combination or afforded special weight. (People v. Brady 

(2010) 50 Cal.4th 547, 562.)

Evidence adduced at trial showed a strong motive for both the murders and the 

attempted murders, specifically the bad blood between the Mendez and Salas families. 

Although perhaps not the primary instigator, defendant was an active participant in 

previous conflicts between family members. The evidence was also conducive to a 

rational trier of fact finding: Esmeralda overheard defendant and Fabian telephoning 

people to come over in anticipation of trouble with those attending the Mendez barbecue, 

and that the Salas family brought guns to the house the day of the shooting; defendant

surreptitiously obtained the gun used in the shooting beforehand, specifically with a view 

to using it against the Mendezes; defendant retrieved the gun from his or his parents’ 

house before he opened fire; and defendant continued to shoot despite Juan urging him to 

stop and fight without guns. A rational trier of fact further could have found — with 

respect both to the murders and the attempted murders — that the gun was deliberately 

aimed at the victims’ heads from a distance close enough to produce a mortal wound, 

either when the victims were not looking at the shooter (in the case of Jose and Pablo) or 
27.

when they were in a position of disadvantage vis-à-vis defendant because they were 

trying to assist other victims or were on the ground (in the case of Eulalia and Juan).32

“[T]hough the evidence is ... not overwhelming, it is sufficient to sustain the 

jury’s finding [of premeditation and deliberation].” (People v. Perez (1992) 2 Cal.4th 

1117, 1127; see, e.g., People v. Gonzalez, supra, 54 Cal.4th at p. 664 [sufficient evidence 

of premeditation and deliberation where defendant planned to attack victim when victim 

was especially vulnerable, in part because victim did not expect confrontation, and 

defendant brought loaded rifle to ambush site; defendant had motive to kill victim 

because of victim’s conflict with defendant’s brother; when victim fought off initial knife 

attack, defendant escalated the violence by handing accomplice a loaded, cocked rifle];

People v. Nelson, supra, 51 Cal.4th at p. 213 [same; defendant “had ample time to 

premeditate and deliberate” when he took up firearm, climbed out of moving car, sat on 

window frame, reached across roof, braced himself, and aimed at victim]; People v. 

Manriquez (2005) 37 Cal.4th 547, 577 [same; defendant and victim were engaged in 

verbal altercation; several minutes elapsed, then defendant approached victim, pulled 

firearm from waistband, cocked weapon, and fired several shots to victim’s head, neck, 

and chest areas]; People v. Memro (1995) 11 Cal.4th 786, 863 [same; defendant had to 

run from first victim’s position to second victim’s position, and cut second victim’s throat 

from behind; rational jury could have concluded he “intended death and no other result” 

and considered options as he ran toward second victim]; People v. Miranda (1987) 44 

Cal.3d 57, 87 [same; fact defendant brought loaded gun into store and shortly after used it 

to kill unarmed victim reasonably suggested defendant considered possibility of murder 

 

32 Jurors could have accepted defendant’s testimony that he was the only shooter, 

while disbelieving the portion of his testimony that was self-serving, particularly that he 

was in fear Fabian would be killed. (See People v. Silva, supra, 25 Cal.4th at p. 369.) If 

jurors believed Antonio shot Jose and Pablo, they still could reasonably have found 

defendant acted with premeditation and deliberation.
28.

in advance], disapproved on another ground in People v. Marshall (1990) 50 Cal.3d 907, 

933, fn. 4.) Accordingly, defendant is not entitled to reversal of the jury’s findings that 

he acted with premeditation and deliberation.

II

CONSTITUTIONAL RELIABILITY OF HOMICIDE VERDICTS

With respect to the homicides, the prosecutor proceeded on the theory that 

Antonio was the actual shooter and defendant aided and abetted him in the murders. 

There was evidence to support this theory. The defense proceeded on the theory 

defendant acted alone, with the killings either being justified because they were 

committed in defense of a family member or constituting no more than voluntary 

manslaughter. There was evidence to support the theory defendant was the actual shooter 

and Antonio was not involved in the homicides. 

Jurors were told a person is guilty of a crime whether he or she committed it 

personally, or aided and abetted the perpetrator, and they were instructed on all 

applicable theories of liability with respect to defendant. They were not told the direct 

perpetration instructions applied only to Antonio and the aiding and abetting instructions 

only to defendant. Rather, they were told that, with specified exceptions not pertinent 

here, all instructions applied to each trial defendant.33 Jurors deadlocked on all charges 

against Antonio, and the trial court declared a mistrial as to him. The court subsequently 

 

33 Jurors were also told that some instructions might not apply, depending on their 

findings about the facts of the case; to separately consider the evidence as it applied to 

each defendant and decide each charge for each defendant separately; and that they could 

believe all, part, or none of any witness’s testimony. They were also told that as to 

defendant, they would be given verdict forms, for each count charging murder, for guilty 

of first degree murder, guilty of second degree murder, guilty of voluntary manslaughter, 

and not guilty. As to Antonio, however, they would be given verdict forms, for each 

count charging murder, for guilty of first degree murder, guilty of second degree murder, 

and not guilty. (Antonio expressly requested that the court not give voluntary 

manslaughter instructions as to him, and the court acquiesced in his request.) 
29.

accepted verdicts with respect to defendant; as previously described, the jury found him 

guilty of first degree murder for both homicides. 

Defendant now contends the deadlock as to Antonio rendered the homicide 

verdicts unreliable as to defendant. He says that “[o]nce the deadlock was declared, 

aiding and abetting was no longer a proper theory of liability as to [defendant]”; hence, 

the trial court should have refused the verdicts (or defense counsel should have requested 

that it do so), corrected the jury instructions by removing aiding and abetting liability 

from the jury’s consideration, and directed the jury to deliberate under the corrected 

instructions, pursuant to which defendant could be convicted, if at all, only as a direct 

perpetrator. He reasons: “[I]f there was no homicide committed by Antonio, there was 

no predicate act committed by Antonio and, hence, [defendant] could not have aided and 

abetted Antonio. [¶] Under these unique circumstances, the identity of the shooter was 

imperative for purposes of the verdict and, given the jury’s inability to agree that Antonio 

was the shooter ..., it logically could not have agreed that [defendant] was guilty of the 

homicides on a theory of aider and abettor liability. Consequently, ... it was incumbent 

upon either the trial court or defense counsel to insure that aider and abettor liability was 

withdrawn from the jury’s consideration for purposes of a verdict consistent with the 

requirements of federal due process.”

When the state participates in the deprivation of personal liberty, due process 

requires procedures necessary to ensure reliability in the fact-finding process. (People v. 

Geiger (1984) 35 Cal.3d 510, 520, overruled on another ground in People v. Birks (1998) 

19 Cal.4th 108, 136; see, e.g., Ford v. Wainwright (1986) 477 U.S. 399, 411; People v. 

Mincey (1992) 2 Cal.4th 408, 445.) Inconsistent verdicts — whether on separate charges 

against one defendant or with respect to codefendants in a joint trial — are not rendered 

unreliable, or otherwise infirm, by virtue of their inconsistency. (See, e.g., Harris v. 

Rivera (1981) 454 U.S. 339, 345 & fns. 13 & 14; People v. Thompson (2010) 49 Cal.4th 

79, 119-120; People v. Avila (2006) 38 Cal.4th 491, 600; People v. Palmer (2001) 24 
30.

Cal.4th 856, 860-861.) Moreover, although the jury must unanimously agree the 

defendant is guilty of a specific crime (People v. Russo (2001) 25 Cal.4th 1124, 1132), 

“‘as long as each juror is convinced beyond a reasonable doubt that defendant is guilty of 

murder as that offense is defined by statute, [the jury] need not decide unanimously by 

which theory he is guilty. [Citations.] More specifically, the jury need not decide 

unanimously whether defendant was guilty as the aider and abettor or as the direct 

perpetrator. [Citations.] This rule of state law passes federal constitutional muster. 

[Citation.]’ [Citation.]” (People v. Majors (1998) 18 Cal.4th 385, 408; accord, People v. 

Lewis (2001) 25 Cal.4th 610, 654; see Schad v. Arizona (1991) 501 U.S. 624, 630-632 

(plur. opn. of Souter, J.); People v. Ortiz (2012) 208 Cal.App.4th 1354, 1376.) “Not only 

is there no unanimity requirement as to the theory of guilt, the individual jurors 

themselves need not choose among the theories, so long as each is convinced of guilt. 

Sometimes, as probably occurred here, the jury simply cannot decide beyond a 

reasonable doubt exactly who did what. There may be a reasonable doubt that the 

defendant was the direct perpetrator, and a similar doubt that he was the aider and 

abettor, but no such doubt that he was one or the other.” (People v. Santamaria (1994) 8 

Cal.4th 903, 919.)

In the present case, the evidence adduced at trial unambiguously imposed on the 

trial court a sua sponte duty “to instruct on aiding and abetting liability as a general legal 

principle raised by the evidence and necessary for the jury’s understanding of the case. 

[Citation.]” (People v. Delgado (2013) 56 Cal.4th 480, 483.) “Even without a request, a 

trial court is obliged to instruct on ‘“general principles of law that are commonly or 

closely and openly connected to the facts before the court and that are necessary for the 

jury’s understanding of the case”’ [citation], or put more concisely, on ‘“general legal

principles raised by the evidence and necessary for the jury’s understanding of the case”’

[citation]. In particular, instructions delineating an aiding and abetting theory of liability 

must be given when such derivative culpability ‘form[s] a part of the prosecution’s theory 
31.

of criminal liability and substantial evidence supports the theory.’ [Citation.]” (Id. at 

p. 488.) As explained above, substantial evidence supported the theory defendant was 

not the actual shooter where Jose and Pablo were concerned, and the prosecutor relied on 

such a complicity theory. Accordingly, “[a]ccomplice liability for the [homicides] was 

thus a theory raised by the evidence and necessary for the jury’s full understanding of the 

case; the court [would have] erred in not instructing on this theory. [Citation.]” (Ibid.)

Section 1161 provides, in pertinent part: “When there is a verdict of conviction, in 

which it appears to the Court that the jury have mistaken the law, the Court may explain 

the reason for that opinion and direct the jury to reconsider their verdict ....” Apart from 

this limited circumstance, “a trial court may not decline to accept a jury verdict, or refuse 

to hear the verdict, simply because it is inconsistent with another verdict rendered by the 

same jury in the same case.” (People v. Carbajal (2013) 56 Cal.4th 521, 532-533; see 

People v. Scott (1960) 53 Cal.2d 558, 561-562, disapproved on another ground in People 

v. Morse (1964) 60 Cal.2d 631, 637, fn. 2, 648-649.)34 There was no suggestion here the 

jury mistook the law.

Nor did the jury’s deadlock as to Antonio somehow transform aiding and abetting 

into an improper theory as to defendant. Jurors were not constrained by the fact the 

prosecution chose to focus on a particular theory. (People v. Barton (1995) 12 Cal.4th 

186, 203; see People v. Alexander (2010) 49 Cal.4th 846, 921.) The jury unanimously 

found defendant guilty, beyond a reasonable doubt, of murdering Jose and Pablo. It does 

not matter whether, in so finding, any individual juror believed defendant guilty as the 

direct perpetrator or as an aider and abettor, or that the juror could not decide exactly 

 

34 We recognize no true “verdict” was returned with respect to Antonio, but find this 

immaterial since it is the verdicts returned as to defendant that defendant says should 

have been rejected. Just as a verdict of acquittal may be inconsistent with a verdict of 

guilty, so too may a jury’s deadlock. (See People v. Nieves (1969) 2 Cal.App.3d 562, 

567.)
32.

what defendant did but was convinced of defendant’s guilt. That jurors could not agree 

on whether Antonio was culpable does not change this or render their verdicts unreliable 

as to defendant. 

Defendant quotes People v. Perez (2005) 35 Cal.4th 1219 (Perez), in which the 

California Supreme Court said: “[Section 31] extends criminal liability as principals in a 

crime to ‘[a]ll persons concerned in the commission of a crime,’ and all those who ‘aid 

and abet in its commission.’ As this language makes plain, the commission of a crime is 

a prerequisite for criminal liability. If the defendant himself commits the offense, he is 

guilty as a direct perpetrator. If he assists another, he is guilty as an aider and abettor. It 

follows, therefore, that for a defendant to be found guilty under an aiding and abetting 

theory, someone other than the defendant must be proven to have attempted or committed 

a crime; i.e., absent proof of a predicate offense, conviction on an aiding and abetting 

theory cannot be sustained.” (Id. at p. 1225, italics added.) Defendant says it is likely he 

was convicted on an aiding and abetting theory without a predicate offense, because the 

prosecutor was unable to prove to 12 people, beyond a reasonable doubt, that Antonio 

was the shooter. Defendant says this deadlock meant the following: “Without proof of a 

criminal act by Antonio to which [defendant] contributed, the prosecution could not 

convict [defendant] as an aider and abettor. [Citations.]” (Id. at p. 1227.) 

The quotes from Perez must be read in context of the issues presented in that case. 

So read, they do not assist defendant.

In Perez, the defendant was arrested in possession of methamphetamine 

precursors, which he said he intended to sell to a man known to him as Antonio. He was 

charged with possessing precursors with intent to manufacture methamphetamine. The 

prosecutor proceeded under two theories: (1) Perez was liable as a direct perpetrator 

because he possessed the precursors and personally intended to manufacture 

methamphetamine, or, alternatively, (2) Perez was liable as an aider and abettor because 
33.

he possessed the precursors with the intent to sell them to another person to be used in 

manufacturing methamphetamine. (Perez, supra, 35 Cal.4th at pp. 1223-1224.)

The high court first considered whether a person could be guilty of aiding and 

abetting absent proof of criminal conduct by some direct perpetrator. (Perez, supra, 35 

Cal.4th at p. 1225.) It was in this context that the court stated someone other than the 

defendant had to be proven to have attempted or committed a crime before the defendant 

could be convicted on an aiding and abetting theory. (Ibid.) The court observed that the 

prosecutor had persuaded the trial court to give aiding and abetting instructions despite 

the absence of proof of either a completed crime or an attempt, with the People arguing 

that by intending to sell the precursors to Antonio, Perez aided and abetted Antonio’s 

manufacture of methamphetamine. (Id. at p. 1227.) The Supreme Court held the trial 

court erred in instructing on aiding and abetting: “Whether the theory was that Perez 

intended to aid and abet Antonio’s actual manufacture of methamphetamine ... or to aid 

and abet Antonio’s possession of hydriodic acid precursors with the intent to manufacture

methamphetamine ..., no evidence established that Antonio ever violated, or attempted to 

violate, either statute. Without proof of a criminal act by Antonio to which Perez 

contributed, the prosecution could not convict Perez as an aider and abettor. [Citations.]” 

(Ibid., italics added.) The court held that under the facts of the case, “Perez could be 

convicted as a direct perpetrator or not at all.” (Ibid.)35

In its discussion of prejudice, the California Supreme Court observed: “[T]he trial 

was infected by a pair of related errors. First, the trial court gave instructions on aiding 

and abetting when no proof of an essential element, an attempted or completed crime by a 

second party, had been introduced. Second, the trial court prevented defense counsel 

from arguing that this omission was fatal — that aiding and abetting in fact required 

 

35 The court went on to determine Perez could not be convicted as a direct 

perpetrator. (Perez, supra, 35 Cal.4th at pp. 1227-1231.)
34.

proof of an independent crime — and overruled the defense’s objection to prosecution 

argument that omitted this element.” (Perez, supra, 35 Cal.4th at p. 1232, italics added.) 

The foregoing makes it clear our state’s high court was not addressing a situation such as 

confronts us in defendant’s case, and was in no way suggesting the prosecution’s failure 

to prove beyond a reasonable doubt that a second party committed a crime had, in 

essence, the retroactive effect of rendering erroneous an aiding and abetting theory in the 

first instance. In the present case, unlike in Perez, the evidence left no doubt whatsoever 

that someone committed a crime (once the jury rejected the justification defense). 

Contrary to the situation in Perez, if a juror here believed Antonio was the shooter — a 

scenario supported by substantial evidence — the evidence and instructions allowed him 

or her to convict defendant as Antonio’s aider and abettor. If the juror did not believe the 

prosecutor proved Antonio’s involvement beyond a reasonable doubt, the evidence and 

instructions allowed him or her to convict defendant as the direct perpetrator. The 

evidence and instructions did not permit the juror to convict defendant as an aider and 

abettor of a person not shown to have committed a crime.

For the trial court to have refused the verdicts on the homicide counts and 

instructed the jury to deliberate anew on the theory defendant could only be convicted as 

the direct perpetrator, would have given defendant a windfall to which he was not 

entitled. It would have had the effect of requiring juror unanimity on theory, when the 

law does not require such unanimity.36 “‘The fact that certain defendants may escape 

 

36 It appears the jury found defendant to be a direct perpetrator in any event, since 

jurors necessarily unanimously determined, in finding true the firearm enhancements 

pursuant to section 12022.53, subdivision (c), that defendant personally and intentionally 

discharged a firearm in the commission of both murders. The uncontradicted evidence 

showed (as we have previously noted) that only one gun (aside from Balladares’s 

shotgun) was fired in the incident. Thus, were we to find error in allowing the jury to 

consider an aiding and abetting theory, we would conclude it was harmless. (See, e.g., 

People v. Chun (2009) 45 Cal.4th 1172, 1203-1205; People v. Wilson (2008) 44 Cal.4th 

758, 801-802; People v. Guiton (1993) 4 Cal.4th 1116, 1129-1130.)
35.

conviction for their crimes is not any legal or logical reason why another defendant, 

where substantial evidence has been introduced to sustain his conviction, should be 

exonerated and be permitted to escape punishment for his crime.’ [Citation.]” (People v. 

Palmer, supra, 24 Cal.4th at p. 861.)

In light of our conclusion, defendant’s alternative claim — that, if the trial court 

had no sua sponte obligation to take corrective action, then defense counsel was 

ineffective for not doing so — fails. Defendant can show neither deficient performance 

nor prejudice, both of which he would have to establish in order to prevail on this claim. 

(People v. Cunningham (2001) 25 Cal.4th 926, 1003; People v. Pope (1979) 23 Cal.3d 

412, 425; see generally Strickland v. Washington (1984) 466 U.S. 668, 687-694.)

DISPOSITION

The judgment is affirmed.

_____________________

DETJEN, J.

WE CONCUR:

_____________________

 LEVY, Acting P.J.

_____________________

 KANE, J.