Filed 6/9/16

CERTIFIED FOR PARTIAL PUBLICATION

1

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

JOSÉ DE JESÚS OCEGUEDA,

Defendant and Appellant.

 H041157

 (Santa Cruz County

 Super. Ct. No. F22019)

Defendant José De Jesús Ocegueda shot Martin Garcia multiple times in the chest 

and abdomen at a New Year’s Eve party. A jury found defendant guilty of attempted

murder, assault with a firearm, and dissuading a witness. The jury also found firearm 

enhancements true as to each offense. But the jury found not true all alleged gang 

enhancements as well as the allegation that the attempted murder was willful, deliberate, 

and premeditated. The trial court imposed an aggregate term of 37 years to life in prison.

Defendant raises four claims on appeal. First, he contends the trial court erred by 

failing to instruct the jury it could consider evidence of his mental disabilities with 

respect to his claim of imperfect self-defense. Second, he contends the trial court erred 

by allowing the prosecution to present a firearms expert as a rebuttal witness. Third, he 

contends his trial counsel was ineffective by failing to move for exclusion of his pretrial 

statement to police on the ground that the police failed to properly advise him of his 

rights under Miranda.

2

 Fourth, he contends the trial court erred by imposing a full 

 

1 Under California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of parts II.B., II.C., and II.D.

2 Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
2

consecutive term for the assault conviction rather than one-third the middle term as 

required by Penal Code section 1170.1. The Attorney General concedes the merits of this

fourth and final claim.

We hold the trial court erred by precluding the jury from considering evidence of 

defendant’s mental disabilities in deciding whether he harbored the state of mind required 

for imperfect self-defense. However, we conclude the error was harmless. We also 

accept the Attorney General’s concession as to the claim of sentencing error. 

Accordingly, we will reverse and remand for resentencing. As to the remaining claims, 

we conclude they are without merit.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Facts of the Offense

1. Overview

Defendant did not deny shooting Martin Garcia on at a New Year’s Eve party in 

2011. Defendant gave a statement to police in which he admitted shooting Garcia, but he 

claimed he did so out of fear because he believed Garcia was pulling a gun on him. At 

trial, the prosecution offered evidence that defendant was a member of the Vagos, a

subset of the Sureño criminal street gang in Salinas. The prosecution’s gang expert 

opined that defendant shot Garcia for the benefit of the gang. Defendant put forth the 

theory that Garcia and other persons at the party were Norteño gang members, such that 

defendant feared for his safety just before the shooting.

2. Testimony of Dulce Meraz

Dulce Meraz testified as follows. On December 31, 2011, her family was hosting 

a New Year’s Eve party at their house in Watsonville. About 15 to 25 people attended, 

including older relatives and young children. The party was intended to be a family 

gathering and, to Meraz’s knowledge, nobody at the party was associated with gangs. 

The invitees included Jesse Renteria and his girlfriend Niniana Rivera. Martin Garcia 

came with Renteria and Rivera. Meraz had never seen Garcia before.
3

Around 11:00 p.m., defendant arrived with his girlfriend, Margarita “Maggie” 

Ruiz. Meraz had never seen them before, and she had not invited them. Defendant was 

wearing “a baby blue checkered shirt” and jeans. Based on the look on defendant’s face 

and the way he was walking, Meraz got the impression he was “trouble.” Defendant had 

a “hardcore face” and acted “really serious.” 

As midnight approached, several partygoers were gathered outside drinking and 

smoking. Those outside included Meraz’s husband, Renteria, Rivera, Garcia, Ruiz, and 

defendant. Meraz went outside to ask them to come into the house for a countdown to 

midnight, but they wanted to finish smoking outside. A few minutes before midnight, 

Meraz was standing by the garage about five or six feet away from Garcia. The 

partygoers were standing around, taking pictures with their phones, and chitchatting 

about sports. Meraz did not see Garcia “having problems” with anyone. Garcia was not 

acting aggressively, “mad dogging” anyone, acting drunk, or doing anything to cause 

concern. Garcia was laughing and he was in a good mood. 

At that point, Meraz saw defendant approach Garcia. Defendant said to Garcia,

“[H]ey, let’s smoke a cigarette.” Garcia agreed and turned towards defendant, 

whereupon defendant shot Garcia. Meraz heard the gun go off three times, and she saw a 

muzzle flash from the gun, but she could not see the gun in defendant’s hand. She did 

not see Garcia reach for anything or try to grab anything, nor did he take anything out 

from his waistband or the front of his coat. Meraz testified that Garcia did not make any 

aggressive moves toward defendant or call him “a little bitch.” 

As soon as the shots were fired, defendant ran away without saying anything to 

Garcia. Garcia grabbed himself with both hands and fell to the ground. Ruiz ran to her 

car and drove after defendant. Meraz called 911 on the cell phone in her pocket. 

3. Testimony of Jesse Renteria

Renteria and his girlfriend, Niniana Rivera, arrived at the party with Garcia around 

10:00 p.m. They had stopped at a liquor store to buy beer on the way to the party. When 
4

they arrived, Rivera introduced Renteria to defendant and Ruiz. Defendant was wearing 

a blue and white shirt with small squares. Around 11:45 or 11:50 p.m., defendant asked 

Renteria if it was okay to fire a gun into the air to celebrate New Year’s Eve. Renteria 

told defendant it was a family gathering and the hosts would not like it. Defendant did 

not show a gun to Renteria.

Shortly before midnight, Renteria and Rivera were standing next to Garcia 

outside. Defendant and Ruiz were also outside. Defendant was on his cell phone, but 

Renteria could not hear him talking. At some point, defendant moved closer to Garcia, 

who was standing a couple feet away from Renteria. Renteria then heard three or four

gunshots. Garcia said, “I’ve been shot,” and fell to the ground. Renteria felt something 

hit his leg when the gunshots went off. He did not see defendant pull a gun out, but he 

saw a muzzle flash out of the corner of his eye. He did not hear defendant or Garcia say 

anything to each other. He did not see Garcia reach for anything or move his arms just 

before the shots were fired. After Garcia was shot, defendant ran away down the street. 

Ruiz ran to her car, which was parked in the street in front of the house. Ruiz drove 

down the street, picked up defendant, and they both drove away. 

Renteria testified that he never saw Garcia “mad dogging” defendant or say 

anything to defendant. He also testified that Garcia was not causing problems with 

anyone at the party or “getting up on anybody’s girl.” 

The next day, Renteria received a strange phone call around 10:00 or 11:00 a.m. 

The call came from a nonlocal area code, and Renteria did not recognize the voice. The 

caller wanted to talk to Rivera, so Renteria handed the phone to her. He saw her 

expression turn to fear, and she cried after the call was over.

Several months later, Renteria had a “run in” with some Norteños at the 

Applebee’s in Watsonville. They asked Renteria what had happened when Garcia was 

shot, and whether Renteria had done anything to help Garcia. Renteria told them he had 

not done anything because everything happened so fast. On cross-examination, Renteria 
5

testified that Garcia was not a Norteño. Renteria knew some Norteños, but he did not 

“hang out” with them. 

4. Testimony of Niniana Rivera

Niniana Rivera testified as follows. Garcia was a friend of Jesse Renteria, her 

boyfriend at the time of the shooting. Rivera knew Ruiz from school. Ruiz only dated 

Sureños, and she hung out with other girls who dated Sureños. Rivera invited Ruiz to the 

New Year’s Eve party. Ruiz asked Rivera if it was going to be a gang party. Rivera told 

Ruiz it was a family party, not a gang party. 

Rivera, Renteria, and Garcia drove together to the New Year’s Eve party the night 

of the shooting. They stopped at a liquor store on the way because Garcia wanted to get 

beer for the party. Garcia had already had a couple of beers before they picked him up. 

Ruiz and defendant arrived around 11:30 p.m. Defendant was wearing a light blue 

checkered shirt, but Rivera did not think he was a Sureño. Rivera did not see any 

Norteños at the party, but she was aware that Garcia hung out with Norteños. She was 

also aware that Garcia had uncles who were Norteños. 

Around 11:50 p.m., Rivera went outside with defendant and Ruiz. Defendant 

asked Rivera if it would be okay to fire a gun at midnight. Rivera told defendant she did 

not know and that he should ask the hosts, but he did not do so. Instead, he went to 

Ruiz’s car, got something out of the glove compartment, and put the object in his pocket. 

Rivera could not see what the object was. Defendant then rejoined Rivera and Ruiz, who 

were standing on the grass in front of the house. 

Renteria was also outside, smoking marijuana with Garcia and others in front of 

the garage. Defendant wanted to smoke as well, so Rivera told him to go smoke with 

Renteria and the others. Defendant then walked away from Rivera and Ruiz and joined 

Renteria and Garcia. At that point, Rivera heard “two big loud noises.” At first she 

thought someone had set off fireworks, but then she saw Garcia on the ground. She then 

saw defendant running away down the street. Ruiz was driving after him. Rivera then 
6

saw a group of persons looking like Norteño gangsters who “showed up out of nowhere” 

to chase after Ruiz’s car. When Ruiz caught up with defendant, he got into the 

passenger’s seat. Ruiz then drove off through a red light. The police arrived a couple of 

minutes later and took Rivera and Renteria to the police station for questioning. 

Rivera never saw any problems between defendant and Garcia. She did not see 

Garcia give defendant “hard looks” or say anything to him. Garcia had not been having 

issues with anyone else at the party either. Rivera had never seen Garcia with a gun or 

any other kind of weapon. 

At around 11:00 a.m. the next morning, Rivera was getting up with Renteria when 

Renteria’s phone rang. Renteria thought it was a police officer because of the strange 

area code. Renteria answered the phone and then handed it to Rivera. The caller told 

Rivera, “You better not say anything, you rat.” Rivera could hear Ruiz’s voice in the 

background, and she believed defendant was the caller. Rivera told him she would 

“never rat [Ruiz] out,” and the caller told Rivera not to mention Ruiz’s name. Rivera lied 

and told the caller she had not said anything to the police. The caller asked, “Did he 

die?” Rivera told him she did not know, and the caller hung up. Rivera, who was scared, 

started crying. 

5. Gang Evidence

The prosecution’s gang expert opined that defendant was a member of the Vagos 

subset of the Sureño criminal street gang based on the following evidence. First,

defendant used a gang moniker—“Chuco,” a shortened version of “Pachuco”—which 

meant “original gangster.” Second, defendant had multiple tattoos normally worn by 

Sureño gang members. Third, defendant also had prior contacts with police involving 

altercations between gang members. Fourth, gang graffiti found on the walls of Ruiz’s 

residence contained references to “Chuco” and the Vagos gang. Fifth, photos found on 

defendant’s cell phone showed him flashing a V-shaped hand sign, referencing the 

Vagos. And sixth, the contacts listed in defendant’s phone included three known Vagos 
7

gang members. The police found messages on the phone in which defendant referred to 

himself as “Chuco” in texting with the other gang members. The gang expert also opined

that Garcia was a Norteño associate, and that defendant’s shooting of Garcia benefitted 

the Vagos gang by eliminating a rival and enhancing the gang’s reputation for violence. 

6. Defendant’s Statements to Police

On January 8, 2012, border agents detained defendant as he tried to reenter the 

United States from México. Police interviewed defendant in a holding room at an 

Imperial County jail. At trial, the prosecution played an audio recording of the interview 

for the jury and provided it with a transcript of the interview. 

When the police initially confronted defendant about the offense, he denied being 

at the party. But after continued questioning, he admitted he was at the party and he 

admitted shooting Garcia. Defendant claimed Garcia was “mad dogging” him and

“calling me shit, calling me stuff.” Defendant said Garcia called him “a little bitch” and 

told him to “get over here.” Defendant claimed Garcia appeared to be pulling a weapon

out of his waistband, so “for my protection” and “for my sake,” defendant pulled a .38-

caliber revolver out of his pocket and shot Garcia twice. Defendant said, “He was just 

approaching, he was gonna try to grab something, and so I got scared, you know?” 

Defendant later claimed Garcia was reaching into his coat and added, “Well, I seen 

something metal, obviously it’s a strap.” Defendant denied having any association with 

Sureños, and he stated that he did not know if Garcia was a Norteño. 

When defendant was moved to a Santa Cruz County jail, he stated that he no 

longer wanted to be a Sureño and asked not to be housed with Sureños. Police reinterviewed defendant on January 18, 2012. The prosecution played an audio recording 

of the interview for the jury and provided them with a transcript. Defendant stated he had 

grown up with Sureños as neighbors and he started hanging out with them in high school. 

He claimed he was dropping out of the Sureños to get away from “the life” and his new 

life was “going good.” 
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7. Other Prosecution Evidence

Police were called to the scene of the shooting at 11:57 p.m. They found Garcia

lying unresponsive in the driveway. He was wearing a red plaid dress shirt and a black 

jacket. Based on Garcia’s shirt, his haircut, and the fact that he was a Latino male in 

Watsonville, the responding officer testified that Garcia looked like “a gang type male.” 

Garcia had a gunshot wound in his left chest above the heart, and another wound in the 

stomach area. After going in and out of consciousness, Garcia stopped breathing and the 

police performed CPR until an ambulance arrived. At the hospital, the police observed a 

third gunshot wound on the right side of Garcia’s chest. 

Police also searched Ruiz’s bedroom soon after the shooting. They found gang 

graffiti on the walls, a Los Angeles Dodgers blanket over the window, and a rifle. The 

graffiti included references to “Chuco” and the Vagos street gang. Police found a letter 

to Ruiz from a Sureño gang member in prison. They also found a receipt for ammunition 

purchased from a Big 5 sporting goods store on New Year’s Eve around 5:00 p.m. The 

parties stipulated that Ruiz had attempted to buy ammunition for a .38-caliber revolver, 

but the store would not sell it to her because she was a minor, whereupon Ruiz’s sister 

purchased the ammunition. 

Police arrested Ruiz on January 5, 2012. During her arrest, they found five spent 

shell casings from a .38-caliber revolver in her purse. They also found a traffic citation 

issued to a vehicle matching the description of the vehicle the partygoers saw Ruiz 

driving after the shooting. A database search of the license plate number on the citation 

showed the vehicle registered to defendant’s mother. 

The prosecution subpoenaed Ruiz to testify at trial and granted immunity for her 

testimony, but she refused to testify. The prosecution also attempted to subpoena Garcia 

to testify, but investigators for the district attorney’s office were unable to serve him 

personally. 
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8. Defense Evidence

a. Testimony of Dr. Shelley Peery

Dr. Shelley Peery, a clinical psychologist, testified for the defense as an expert in 

neuropsychology. Among other things, Dr. Peery reviewed defendant’s school records 

and gave him a battery of neuropsychological tests to assess his mental development. 

Defendant’s school records showed he had difficulty processing auditory and visual 

information, and problems with his mental processing speed in general. Persons with 

such processing disorders might have problems with interpreting what they see or hear, or 

it might take them longer to arrive at a conclusion about what they see or hear. 

Defendant’s school records documented his I.Q. at 74, placing him in the fourth 

percentile. Based on her own testing, Dr. Peery testified defendant had an I.Q. of 65, 

indicating a mild intellectual developmental disability historically described as mild

mental retardation. Defendant’s behavioral functioning was in the third percentile; his

processing speed was in the tenth percentile; his perceptual and reasoning skills were in 

the fourth percentile; his verbal skills were below the first percentile; and his working 

memory was also below the first percentile. Dr. Peery estimated that defendant’s abilities

to perform the activities of daily living were at a 13-year-old level. 

Due to his disabilities, defendant had difficulty planning and understanding the 

causes and effects of his actions. He also had difficulties in problem solving and 

considering or weighing his options. Dr. Peery testified that being placed in a stressful 

situation would magnify those difficulties. The fact that defendant had grown up in a 

violent environment made it more reasonable that he would respond with force to 

somebody threatening him. 

When Dr. Peery questioned defendant about the shooting, he told her Garcia had 

been “mad dogging” him at the party, yelling at him, and making him scared. Defendant 

claimed he thought he had seen a gun, causing him to panic, shoot Garcia, and run away. 

He described his actions as a response to being afraid for his life. Based on defendant’s 
10

statements, Dr. Peery opined that defendant was “acting from a place of fear” at the time 

of the offense. 

b. Evidence of Garcia’s Violent Character

The defense presented several witnesses who testified about multiple acts of 

violence that Garcia had previously committed. In January 2007, Enrique Cabrera was in 

a car with Garcia’s sister when Garcia and a group of friends smashed one of the car’s 

windows and attacked the occupants. The police took Garcia into custody following the 

incident. In July 2007, Garcia attacked José Vaca at a McDonald’s restaurant in 

Watsonville. Garcia and Vaca had previously fought each other in the parking lot of a 

bowling alley. In the incident at the McDonald’s, Vaca was waiting in the parking lot of 

the restaurant when Garcia attempted to drive his car into Vaca. After Vaca eluded the 

car, Garcia got out of the car and assaulted Vaca with his fists. Garcia subsequently 

attempted to start a fight with one of Vaca’s coworkers.

9. Rebuttal Witnesses for the Prosecution

The prosecution offered two witnesses in rebuttal––Dr. Jonathan French and 

firearm expert Ronald Lamb.

Dr. Jonathan French––Dr. Jonathan French, a psychologist in private practice, 

testified as an expert in forensic psychology. Dr. French opined that Dr. Peery’s

psychological analysis of defendant fell below forensic standards. He criticized Dr. 

Peery for failing to consider all the evidence and failing to cross check statements or facts 

upon which she relied. He testified that Dr. Peery failed to take into consideration 

defendant’s involvement in a criminal street gang and failed to take adequate care to 

assure defendant was not malingering during her examinations. 

Ronald Lamb––Ronald Lamb, a firearms trainer and consultant, testified as an 

expert in small arms and tactics. Lamb opined on the length of time required for a person 

to draw a pistol and fire in self-defense. Based on a hypothetical set of facts resembling 

those asserted by the defense, Lamb opined that a person in defendant’s circumstances 
11

could not have drawn and fired his weapon three times before the target was able to 

return fire. 

B. Procedural Background

In August 2012, the prosecution charged defendant by information with: Count 

One—Active participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)); 

Count Two—Attempted premeditated murder (Pen. Code, §§ 187, subd. (a), 664, 

subd. (a)); Count Three—Assault with a firearm (Pen. Code, § 245, subd. (a)(2)); and 

Count Four—Dissuading a witness by force or threat (Pen. Code, § 136.1, subd. (c)(1)). 

Prior to trial, Count One was dismissed in the interests of justice. As to Count Two, the 

information alleged defendant personally and intentionally discharged a firearm, 

proximately causing great bodily injury. (Pen. Code, § 12022.53, subd. (d).) As to Count 

Three, the information alleged defendant carried a firearm on his person in the 

commission of a street gang crime. (Pen. Code, § 12021.5, subd. (a).) As to Counts 

Two, Three, and Four, the information alleged the offenses were committed for the 

benefit of, at the direction of, and in association with a criminal street gang. (Pen. Code, 

§ 186.22, subd. (b)(1).)

The case proceeded to trial in January 2014. On March 3, 2014, the jury found 

defendant guilty on all counts. As to Count Two, the jury found the firearm enhancement 

to be true, but it found not true the allegation that the murder was willful, deliberate, and 

premeditated. The jury also found not true all alleged gang enhancements.

The trial court imposed an indeterminate term of 34 years to life consecutive to a 

determinate term of three years. The term of 34 years to life consisted of the upper term 

of nine years on Count Two with a consecutive term of 25 years to life for the firearm 

enhancement. The determinate term of three years consisted of the midterm of three 

years on Count Three concurrent with the midterm of three years on Count Four.
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II. DISCUSSION

A. Jury Instructions Regarding Mental Disabilities and Imperfect Self-Defense

Defendant contends the trial court erred by failing to instruct the jury it could 

consider evidence of his mental disabilities in deciding whether he had the state of mind 

required for imperfect self-defense. The Attorney General contends defendant forfeited 

the claim by failing to request a pinpoint instruction. She further argues defendant was 

not entitled to such an instruction because unreasonable self-defense cannot be based on 

delusion, and defendant failed to present evidence sufficient to support a finding of 

unreasonable self-defense. 

1. Procedural Background

Based on CALCRIM No. 604, the trial court instructed the jury on attempted 

voluntary manslaughter under a theory of imperfect self-defense. Based on 

CALCRIM No. 3428, the court also instructed the jury on the effect of mental 

disabilities, as follows: “You have heard evidence that the defendant may have suffered 

from a mental disease, defect, or disorder. You may consider this evidence only for the 

limited purpose of deciding whether, at the time of the charged crimes and special 

allegations, the defendant acted or failed to act with the specific intent or mental state 

required for those crimes and special allegations. [¶] Those specific intents and mental 

states are as follows: [¶] Number 1: The intent to kill contained in attempted murder 

and attempted voluntary manslaughter. [¶] Number 2: The premeditation and 

deliberation contained in the special allegation relating to the charge of attempted 

murder.”3 Defense counsel did not request any modification of this instruction to include 

the state of mind required for imperfect self-defense.

 

3

The instruction continued by listing the mens rea requirements for the remaining 

charges and enhancements. Those portions of the instruction are not at issue here.
13

2. Legal Principles

“Manslaughter is the unlawful killing of a human being without malice.” (Pen.

Code, § 192.) “The vice is the element of malice; in its absence the level of guilt must 

decline.” (People v. Flannel (1979) 25 Cal.3d 668, 680, superseded by statute on other 

grounds.) When a defendant intentionally kills based on an honest belief in the need for 

self-defense, but this belief is not objectively reasonable, the defendant acts in 

“imperfect” or “unreasonable” self-defense. This state of mind negates malice, reducing 

the offense to voluntary manslaughter. “It is the honest belief of imminent peril that 

negates malice in a case of complete self-defense; the reasonableness of the belief simply 

goes to the justification for the killing.” (Id. at p. 679.) “An honest but unreasonable 

belief that it is necessary to defend oneself from imminent peril to life or great bodily 

injury negates malice aforethought, the mental element necessary for murder, so that the 

chargeable offense is reduced to manslaughter.” (Id. at p. 674, italics in original.) 

Penal Code section 28 (Section 28) circumscribes the use of evidence of mental 

disease or defect, as follows: “Evidence of mental disease, mental defect, or mental 

disorder shall not be admitted to show or negate the capacity to form any mental state, 

including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or 

malice aforethought, with which the accused committed the act. Evidence of mental 

disease, mental defect, or mental disorder is admissible solely on the issue of whether or 

not the accused actually formed a required specific intent, premeditated, deliberated, or 

harbored malice aforethought, when a specific intent crime is charged.” (§ 28, subd. (a), 

italics added.)

“The independent or de novo standard of review is applicable in assessing whether 

instructions correctly state the law [citations] and also whether instructions effectively 

direct a finding adverse to a defendant by removing an issue from the jury’s 

consideration.” (People v. Posey (2004) 32 Cal.4th 193, 218.) 
14

3. Forfeiture

The Attorney General contends defendant forfeited his claim by failing to request 

a pinpoint instruction below. Both parties agree that the trial court had no sua sponte 

duty to instruct the jury on mental disabilities with respect to defendant’s state of mind. 

(People v. Ervin (2000) 22 Cal.4th 48, 91 [sua sponte instructions on the effect of mental 

disabilities became unnecessary with the abolition of the diminished capacity doctrine]; 

see People v. Saille (1991) 54 Cal.3d 1103, 1120 [after abolition of diminished capacity 

doctrine, instruction relating evidence of intoxication to mental state required for an 

offense is a pinpoint instruction that need not be given sua sponte].) However, defendant 

argues that once the trial court gave such an instruction, it had a duty to do so correctly. 

(See People v. Pearson (2012) 53 Cal.4th 306, 325 [although a trial court has no sua 

sponte duty to give a pinpoint instruction on the relevance of evidence of voluntary 

intoxication, when it does choose to instruct, it must do so correctly].)

We agree with defendant insofar as the claimed error affected his substantial 

rights. The California Supreme Court recently affirmed this principle in People v. 

Townsel (2016) 63 Cal.4th 25 (Townsel).) There, the defendant argued that the trial 

court’s instruction on the effect of his mental disabilities erroneously precluded the jury 

from considering his disabilities in deciding whether he formed the requisite mental states 

for murder and other charges. The trial court had given the challenged instruction at the 

request of both parties. On appeal the Attorney General asserted the invited error 

doctrine. Our high court acknowledged the principle that it is incumbent on the 

defendant to affirmatively seek a proper instruction, but held the claim reviewable under 

Penal Code section 1259: “The appellate court may also review any instruction given, 

refused or modified, even though no objection was made thereto in the lower court, if the 

substantial rights of the defendant were affected thereby.” (Pen. Code, §1259.) Under 

this standard, “[t]he question is whether the error resulted in a miscarriage of justice 

under People v. Watson (1956) 46 Cal.2d 818.” (People v. Anderson (2007) 
15

152 Cal.App.4th 919, 927 [error affected defendant’s substantial rights if it is reasonably 

probable a more favorable result would have been reached in the absence of the error].) 

Because defendant’s argument here is substantially similar to the defendant’s claim in 

Townsel, we will consider the merits of the argument under the Watson standard.4 (See 

People v. McGehee (2016) 246 Cal.App.4th 1190.)

4. The Trial Court Erred by Limiting the Jury’s Consideration of Defendant’s 

Mental Disabilities

A defendant who acts with the state of mind required for imperfect self-defense 

does not harbor express malice. “Two factors may preclude the formation of malice and 

reduce murder to voluntary manslaughter: heat of passion and unreasonable selfdefense.” (People v. Elmore (2014) 59 Cal.4th 121, 133 (Elmore).) (Flannel, supra,

25 Cal.3d at p. 672 [one who holds an honest but unreasonable belief in the necessity to 

defend against imminent peril to life or great bodily injury does not harbor malice and 

commits no greater offense than manslaughter].) Taking these principles together, 

California law allows the jury to consider a defendant’s mental disabilities in deciding 

whether he or she had an actual but unreasonable belief in the need for self-defense. But 

with respect to the attempted murder charged here, the trial court instructed the jury it

could consider evidence of defendant’s mental disabilities “only for the limited purpose” 

of deciding whether defendant harbored the “intent to kill.” As noted earlier, however, 

Section 28 expressly makes evidence of mental disabilities admissible to consider 

whether a defendant harbored express malice. Therefore, by limiting the jury’s 

consideration of mental disability evidence to the question of whether defendant had an 

 

4 Defendant further contends his trial counsel was ineffective by failing to request 

a pinpoint instruction. Because the Watson standard is substantially the same as the 

prejudice prong of Strickland v. Washington (1984) 466 U.S. 668 (defining prejudice as 

the reasonable probability of a result more favorable to defendant), we need not consider 

this claim. (See Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050 [comparing 

Watson standard to Strickland standard].)
16

intent to kill––but not whether he harbored express malice––the trial court’s instruction 

ran afoul of Section 28.

The Attorney General argues the instructions were correct because the standard 

instructions on attempted murder and attempted voluntary manslaughter “do not require a 

showing of malice per se, but instead, a showing of the specific intent to kill.” This claim 

is mistaken. CALCRIM No. 604, the pattern instruction on attempted voluntary 

manslaughter under a theory of imperfect self-defense, instructs jurors: “The People 

have the burden of proving beyond a reasonable doubt that the defendant was not acting 

in imperfect self-defense.” This properly places the burden on the prosecution to prove 

the existence of malice, not simply the intent to kill. Indeed, one of the requirements of 

imperfect self-defense as set forth in the pattern instruction is that the “[t]he defendant 

intended to kill when he acted.” But this does not make such a defendant guilty of 

attempted murder. To the contrary, a defendant acting in imperfect self-defense cannot 

be convicted of attempted murder because murder requires malice, and express malice 

requires “a deliberate intention unlawfully to take away the life of a fellow creature.” 

(Pen. Code, § 188.) A defendant who intends to kill in imperfect self-defense does not do 

so “unlawfully” within the meaning of Penal Code section 188. (Elmore, supra, 

59 Cal.4th at pp. 132-133.)

The Attorney General correctly notes that the trial court never instructed the jury 

on the meaning of malice. Indeed, the word “malice” appears nowhere in the trial court’s 

instructions. But in modifying CALCRIM No. 3428, the pattern instruction on mental 

disabilities, the court substituted the phrase “intent to kill” in place of the phrase “malice 

aforethought,” the latter of which appears expressly in the pattern instruction. As noted

above, these two phrases are not always equivalent.

The Attorney General further contends the instructions were correct because the 

trial court instructed the jury, when considering whether defendant had the state of mind 

required for imperfect self-defense, to “consider all the circumstances as they were 
17

known and appeared to the defendant.” “It is well established in California that the 

correctness of jury instructions is to be determined from the entire charge of the court, not 

from a consideration of parts of an instruction or from a particular instruction.” (People 

v. Burgener (1986) 41 Cal.3d 505, 538, disapproved on other grounds by People v. Reyes

(1998) 19 Cal.4th 743.) If the charge as a whole is ambiguous, we consider whether 

there is a “reasonable likelihood” the jury misapplied the instruction. (Middleton v. 

McNeil (2004) 541 U.S. 433, 437.)

Here, to the extent there was any ambiguity, there is no reasonable likelihood the 

jury understood the given instructions to mean it could consider defendant’s mental 

disabilities in assessing his belief in the need for self-defense. While the court instructed 

the jury to consider “circumstances as they were known and appeared” to the defendant, 

this did not allow the jury to consider whether his perceptual or sensory processing 

disabilities made it more likely that self-defense would appear to be necessary to him. By 

contrast, the erroneous instruction explicitly limited the jury’s consideration of mental 

disabilities to the issue of whether he intended to kill. The court’s instruction was 

therefore erroneous.

The Attorney General also contends defendant was not entitled to any instruction 

on imperfect self-defense because the evidence did not support it. She argues that 

imperfect self-defense can only be supported by a true mistake of fact, not mental 

disabilities. For this proposition she relies on Elmore, supra, 59 Cal.4th 121.

In Elmore, the court held that a defendant who acts based solely on a delusional 

belief in the need for self-defense is not entitled to a jury instruction on imperfect selfdefense. The court distinguished a delusional belief from a true mistake of fact: “A 

defendant who makes a factual mistake misperceives the objective circumstances. A 

delusional defendant holds a belief that is divorced from the circumstances. The line 

between mere misperception and delusion is drawn at the absence of an objective 

correlate. A person who sees a stick and thinks it is a snake is mistaken, but that 
18

misinterpretation is not delusional. One who sees a snake where there is nothing 

snakelike, however, is deluded. Unreasonable self-defense was never intended to 

encompass reactions to threats that exist only in the defendant’s mind.” (Id. at p. 137.) 

The Attorney General argues that Elmore precludes any instruction on imperfect selfdefense here because, if defendant’s asserted belief in the need for self-defense was a 

consequence of his mental disabilities, then such a belief was necessarily delusional.

We disagree. We do not read Elmore as precluding imperfect self-defense in any 

case where mental disabilities affect the defendant’s beliefs or perceptions. The key 

distinction identified in Elmore is the “absence of an objective correlate.” (Elmore,

supra, 59 Cal.4th at p. 137.) Here, defendant claimed he saw Garcia pull a metal 

object—which defendant believed to be a gun—out of his waistband. The Attorney 

General suggests that such a belief, even if genuine, must have been purely delusional 

because no other witness saw Garcia make such a motion, and no gun or gun-like object 

was found on Garcia. But a single witness, even if not inherently credible, may provide

sufficient evidence to establish a fact. (People v. Zavala (2005) 130 Cal.App.4th 758, 

766, citing People v. Chavez (1985) 39 Cal.3d 823, 831; People v. Davis (1966) 

241 Cal.App.2d 51, 54.) Based on defendant’s statements, the jury reasonably could 

have inferred that Garcia actually made some threatening motion or pulled out a metallic 

object, such as a cell phone, from his waistband. Whether defendant’s statements were 

sufficiently credible or his beliefs purely delusional were questions of fact for the jury to 

decide. Elmore does not establish a heightened evidentiary standard requiring 

corroborating evidence independent of defendant’s statements to show his beliefs were 

not purely delusional.

For these reasons, the trial court erred by precluding the jury from considering 

evidence of defendant’s mental disabilities in deciding whether he harbored the state of 

mind required for imperfect self-defense. After carefully reviewing the record, however, 

we conclude this error was not prejudicial.
19

5. The Instructional Error Did Not Prejudice Defendant

We review the possibility of prejudice under the standard set forth in Watson, 

supra. Under this standard, we conclude it is not reasonably probable the jury would 

have reached an outcome more favorable to defendant in the absence of the instructional 

error.

As the Attorney General points out, the sole evidence supporting defendant’s 

claim of self-defense consisted of his own self-serving statements. The defense presented 

no evidence to corroborate defendant’s version of events. To the contrary, every other 

witness who saw defendant’s interactions with Garcia on the night of the shooting 

testified that Garcia did nothing to threaten defendant. No other witness saw defendant 

make any threatening movement before defendant shot him, and there was no evidence of 

any gun, weapon, or weapon-like object found on Garcia’s person after the shooting. 

Furthermore, defendant lied multiple times in the course of his statement to the 

police. He initially denied being present at the party. He further lied about Ruiz’s 

conduct following the shooting. It is therefore not reasonably likely the jury would have 

credited defendant’s claims of self-defense while rejecting the prosecution’s evidence to 

the contrary. Absent defendant’s self-serving claims, the defense presented no evidence 

to support a theory of self-defense. Thus, even if the jury had been allowed to consider 

evidence of defendant’s mental disabilities in assessing his state of mind for imperfect 

self-defense, it is not reasonably probable the jury would have reached an outcome more 

favorable to him. We therefore conclude defendant was not prejudiced by the

instructional error.

B. Asserted Carter Error

Defendant contends the trial court erred by allowing the prosecution to present the 

testimony of a firearms expert in rebuttal to testimony by the defendant’s expert 

psychologist. The Attorney General argues that the firearm expert’s testimony 
20

constituted proper rebuttal. We conclude the trial court did not abuse its discretion by 

allowing the firearm expert to testify in rebuttal.

1. Legal Principles

During a trial, after the prosecution and defense have offered evidence in support 

of their cases, “[t]he parties may then respectively offer rebutting testimony only, unless 

the court, for good reason, in furtherance of justice, permit them to offer evidence upon 

their original case.” (Pen. Code, § 1093, subd. (d).) This restriction serves three 

purposes: (1) to ensure the orderly presentation of evidence so the trier of fact is not 

confused; (2) to prevent the prosecution from unduly magnifying certain evidence by 

dramatically introducing it late in the trial; and (3) to avoid unfair surprise to the 

defendant from sudden confrontation with an additional piece of crucial evidence. 

(People v. Carter (1957) 48 Cal.2d 737, 753 (Carter).) “Thus proper rebuttal evidence 

does not include a material part of the case in the prosecution’s possession that tends to 

establish the defendant’s commission of the crime. It is restricted to evidence made 

necessary by the defendant’s case in the sense that he [or she] has introduced new 

evidence or made assertions that were not implicit in his [or her] denial of guilt.” (Id. at 

pp. 753-754.) This restriction applies only to crucial or material evidence that properly 

belongs in the prosecution’s case-in-chief. (People v. Friend (2009) 47 Cal.4th 1, 44.) 

“The decision to admit rebuttal evidence rests largely within the discretion of the trial 

court and will not be disturbed on appeal in the absence of demonstrated abuse of that 

discretion.” (People v. Young (2005) 34 Cal.4th 1149, 1199.)

2. Admission of Lamb’s Testimony Was Not an Abuse of Discretion

Defendant put forth the expert testimony of Dr. Peery, summarized above in 

Section I.A.8.a., to establish the nature and degree of defendant’s mental disabilities, as 

well as their effect on his state of mind at the time of the shooting. On crossexamination, Dr. Peery opined about the effect of defendant’s mental disabilities on his 

motor skills and how they would have affected his ability to draw a gun in reaction to a 
21

threatening movement by Garcia. In response to questioning about whether defendant’s 

disabilities would have negatively affected his ability to draw a gun quickly, Dr. Peery 

drew a distinction between physical motor skills and the type of perceptual disabilities 

suffered by defendant. The prosecution then proffered the testimony of firearms expert 

Ronald Lamb, summarized above in Section I.A.9., concerning the length of time 

required to draw and fire a gun in self-defense. The trial court sua sponte raised the issue 

of whether Lamb’s testimony constituted proper rebuttal. In response, the prosecution 

identified the above testimony by Dr. Peery as providing a proper basis for the proffered 

rebuttal testimony.

Defendant disputed the prosecution’s characterization of Dr. Peery’s opinions and 

objected to Lamb’s testimony on this and other grounds. The court overruled defendant’s 

objections and found Lamb’s testimony “appropriate for rebuttal purposes in light of the 

testimony offered by Dr. Peery.” The trial court did not abuse its discretion in so ruling.

First, Dr. Peery’s testimony included “new evidence” and “assertions that were not 

implicit” in defendant’s initial denial of guilt. (Carter, supra, 48 Cal.2d at pp. 753-754.) 

Second, Lamb’s testimony was not so central to the prosecution’s case that it necessarily 

should have been included in the prosecution’s case-in-chief. Third, there was no danger 

of confusing the jury by presenting the evidence on rebuttal. And fourth, the introduction 

of Lamb’s testimony on rebuttal did not “unduly magnify” its importance or create 

“unfair surprise” by presenting a crucial piece of evidence at the last moment. (Id. at 

p. 753.) We thus conclude this claim is without merit.

C. Trial Counsel’s Failure to Seek Exclusion of Defendant’s Statements to Police 

Based on an Incomplete Miranda Warning

In their initial interview of defendant after the shooting, police informed defendant 

of his Miranda rights by stating, in relevant part: “Anything you say may be used in 

court, do you understand that?” This admonition did not warn defendant that his 
22

statement could be used against him, but in all other respects the warning complied with 

Miranda. 

Defendant claims the above-quoted portion of the warning was constitutionally 

defective because police did not warn him that his statement to police could be used 

against him in court. But trial counsel did not assert this omission as a basis for 

exclusion, even though she moved in limine to exclude defendant’s statement on other 

grounds.

The trial court ultimately denied defendant’s motion to exclude his statement to 

police. Defendant now contends trial counsel provided ineffective assistance by failing 

to seek exclusion of his statement on the ground that the Miranda warning was defective. 

The Attorney General argues that any deviation from the usual Miranda warnings was 

not significant enough to require reversal because the given warnings adequately advised 

defendant of his privilege against self-incrimination. 

1. Legal Principles

The United States Supreme Court established the requirement for the

administration of warnings regarding a person’s privilege against self-incrimination in the 

seminal case of Miranda, supra. The court held: “The warning of the right to remain 

silent must be accompanied by the explanation that anything said can and will be used 

against the individual in court. This warning is needed in order to make him [or her]

aware not only of the privilege, but also of the consequences of forgoing it. It is only 

through an awareness of these consequences that there can be any assurance of real 

understanding and intelligent exercise of the privilege. Moreover, this warning may 

serve to make the individual more acutely aware that he [or she] is faced with a phase of 

the adversary system—that he [or she] is not in the presence of persons acting solely in 

his [or her] interest.” (Miranda, supra, 384 U.S. at p. 469.) Miranda warnings, however,

need not be given “in the exact form described in that decision.” (Duckworth v. Eagan

(1989) 492 U.S. 195, 202.) “Thus, a reviewing court need not examine a Miranda
23

warning for accuracy as if construing a legal document, but rather simply must determine 

whether the warnings reasonably would convey to a suspect his or her rights as required 

by Miranda.” (People v. Samayoa (1997) 15 Cal.4th 795, 830.)

To demonstrate ineffective assistance of counsel, a defendant must first show 

counsel’s performance was deficient because counsel’s representation fell below an 

objective standard of reasonableness under prevailing professional norms. (Strickland v. 

Washington, supra, 466 U.S. at pp. 687-688.) Second, he or she must show prejudice 

flowing from counsel’s performance or lack thereof. (Id. at pp. 691-692.) “The 

defendant must show that there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different. A 

reasonable probability is a probability sufficient to undermine confidence in the 

outcome.” (Id. at p. 694.)

2. Defendant Was Not Prejudiced by any Failure of his Trial Counsel to Seek 

Exclusion of his Statement to Police 

We first consider defendant’s argument that the Miranda warning was 

constitutionally defective. For this proposition, defendant relies on People v. Bradford

(2008) 169 Cal.App.4th 843, and United States v. Tillman (6th Cir. 1992) 963 F.2d 137. 

In both cases, police neglected to inform the defendant that his statement could be used 

against him. And in both cases, the police failed to warn the defendant that his statement

could be used in court. Neither case is squarely on point because the police here warned 

defendant his statements “may be used in court,” but without warning defendant his 

statements could be used against him. The Attorney General contends the wording of the 

admonishment, while incomplete, was sufficient to convey the full substance of the 

warning to defendant. 

Arguably, a warning that one’s statement “may be used in court” reasonably 

conveys the notion that one’s statement can be used against him or her. This would be 

especially true where, as here, the interview is administered by police who have arrested 
24

the interviewee and taken him or her into custody at a jailhouse. On the other hand, 

police commonly use the tactic of implying that making a statement to them about an 

incident under investigation might benefit the declarant in some fashion. For example, 

the police here repeatedly told defendant that other witnesses were blaming him, and they

wanted to “give [him] a chance” to “explain [his] side of it.” They further told defendant

that if he failed to give his version of events, “[t]hey’re gonna see you as a coldblooded 

dude who’s gonna kill somebody,” and they claimed they did not want to see defendant 

“flush [his] life down the toilet.” Arguably, defendant might have been less susceptible 

to these tactics if police had first made clear that defendant’s statements were going to be 

used against him—i.e., “that he [was] faced with a phase of the adversary system—that 

he [was] not in the presence of persons acting solely in his interest.” (Miranda, supra,

384 U.S. at p. 469.)

But even assuming the warning was constitutionally defective, and assuming 

counsel should have sought to exclude the statement on that ground, defendant cannot 

show he was prejudiced by counsel’s failure to do so. Defendant’s admission to the 

shooting was not central to the prosecution’s case. Abundant evidence established that 

defendant was the shooter. Three witnesses testified to the facts supporting his identity 

as the shooter, and his immediate flight from the scene with the assistance of Ruiz also 

pointed to that conclusion. Also, defendant made a phone call the morning after the 

shooting warning a witness not to talk to the police and asking whether the victim was 

still alive, five spent shell casings were found in Ruiz’s purse, and police found a receipt 

showing the ammunition was purchased just hours before the party. Furthermore, as the 

Attorney General points out, without his statement to the police, defendant had no 

evidence to support his claim of self-defense. For these reasons, we conclude it is not 

reasonably probable the jury would have reached a more favorable verdict even if 

defendant’s statement to police had been excluded. Absent a showing of prejudice under 

Strickland, this claim is without merit.
25

D. Imposition of a Full Consecutive Term for the Assault Conviction

Defendant contends the trial court erred by imposing a full consecutive three-year 

term on Count Three, the assault conviction. The Attorney General concedes the merit of 

this claim. We agree with the parties and accept the Attorney General’s concession.

As set forth above in Section I.B., the trial court imposed the upper term of nine 

years for Count Two, the attempted murder conviction. Based on the firearm 

enhancement, the court also imposed a term of 25 years to life on that count. The court 

characterized this as “a total indeterminate term of 34 years to life.” On Count Three, the 

court imposed the middle term of three years. The court then ordered the term of 

34 years to life on Count Two to run consecutive to the three-year term on Count Three. 

Defendant contends the imposition of a full consecutive term on Count Three violated 

Penal Code section 1170.1 (Section 1170.1), which required the court to impose one-third

the middle term on that count. We agree.

Section 1170.1 governs sentencing for multiple felony offenses punishable by a 

determinate low, middle, or upper term. (People v. Neely (2009) 176 Cal.App.4th 787, 

797.) The trial court first selects a base term—either the low, middle or upper term—for 

each offense. (Id. at p. 798; Pen. Code, § 1170; Cal. Rules of Court, rule 4.405(2).) If a 

consecutive sentence is merited, the court designates the offense with the greatest 

selected base term as the principal term, including any additional terms for applicable 

enhancements. (Pen. Code, § 1170.1, subd. (a).) The court then imposes the full base 

term for the principal term offense followed by one-third the middle term for any 

consecutive term. (Ibid.)

It appears the trial court and the probation report categorized the term of 34 years 

to life on Count Two as an indeterminate sentence and, therefore, a term not subject to 

Section 1170.1. But that section applied to sentencing on all three counts based on the 

determinate term of nine years for the attempted murder conviction, notwithstanding the 

indeterminate term imposed for the firearm enhancement. “[A]n indeterminate 
26

enhancement does not merge with the determinate offense to make the entire term 

encompassed by the indeterminate sentencing law.” (People v. Sanders (2010) 

189 Cal.App.4th 543, 558, citing People v. Montes (2003) 31 Cal.4th 350, 358-359.) 

“That is, the sentence imposed for the offense does not merge with the sentence on the 

enhancement. [Citation.] In legal contemplation, the count and the enhancement remain 

distinct.” (Ibid.)

The trial court should have sentenced defendant on all counts as required by 

Section 1170.1, under which the punishment for any term consecutive to the base term 

should have consisted of one-third the applicable middle term. Accordingly, we will 

reverse and remand for resentencing.

III. DISPOSITION

The judgment is reversed and the matter is remanded for resentencing in 

accordance with this opinion.
_______________________________

Márquez, J.

WE CONCUR:

_______________________________

 Rushing, P.J.

_______________________________

 Premo, J.

No. H041157

The People v. Ocegueda
Trial Court: Santa Cruz County

Superior Court No.: F22019

Trial Judge: The Honorable Timothy R. Volkmann

Attorney for Defendant and Appellant Paul Couenhoven

José De Jesús Ocegueda: under appointment by the Court of 

Appeal for Appellant

Attorneys for Plaintiff and Respondent Kamala D. Harris,

The People: Attorney General

Gerald A Engler,

Chief Assistant Attorney General

Jeffrey M. Laurence,

Senior Assistant Attorney General

Catherine A. Rivlin,

Supervising Deputy Attorney General

Gregg E. Zywicke

Deputy Attorney General

H041157

The People v. Ocegueda