Filed 12/19/23 P. v. Gonzales 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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.

MICHAEL ALEX GONZALES,

Defendant and Appellant.

F085373

(Super. Ct. No. BF184265A)

OPINION

APPEAL from a judgment of the Superior Court of Kern County. John W. Lua, 

Judge.

Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and

Appellant.

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

General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill and 

Catherine Tennant Nieto, Deputy Attorneys General, for Plaintiff and Respondent.

-ooOoo-
2.

INTRODUCTION

Appellant and defendant Michael Alex Gonzales (defendant) was found guilty by 

jury of second degree murder, two counts of unlawful possession of a firearm, unlawful 

possession of ammunition and misdemeanor resisting arrest. 

Defendant argues first, the trial court improperly instructed the jury on CALCRIM 

No. 3475, that the instruction was irrelevant and prejudicial. Second, that substantial 

evidence does not support the conviction on count 3, felon in possession of a firearm. 

Finally, defendant argues he is entitled to one additional day of presentence custody 

credit. 

We affirm the conviction but remand the case to correct defendant’s presentence 

custody credits to reflect one additional day of credit. 

PROCEDURAL HISTORY

In an amended information filed September 16, 2022, the Kern County District 

Attorney charged defendant with the first degree murder of Ruben Vega (Pen. Code,

1

§ 187, subd. (a); count 1), with a discharge of a firearm causing great bodily injury or 

death enhancement (§ 12022.53, subd. (d)); two counts of unlawful possession of a 

firearm (§ 29800, subd. (a)(1); counts 2 and 3)2; unlawful possession of ammunition 

(§ 30305, subd. (a)(1); count 4)3; and misdemeanor resisting arrest (§ 148, subd. (a)(1); 

count 5).4

1 Unspecified statutory references are to the Penal Code. 

2 Having previously been convicted of unlawful possession of a firearm (§ 29800, 

subd. (a)(1)) and spousal injury (§ 273.5). 

3 Having previously been convicted of unlawful possession of a firearm (§ 29800, 

subd. (a)(1)) and spousal injury (§ 273.5). 

4 Designated “[c]ount 6” in the information due to the information erroneously 

listing a duplicate unlawful possession of ammunition charge as count 5. 
3.

As to counts 1 through 4, the information further alleged four aggravating factors: 

that defendant caused great bodily harm or the threat of great bodily harm, or other acts 

that disclosed a high degree of cruelty, viciousness or callousness (Cal. Rules of Court,5

rule 4.421(a)(1)), that defendant was armed with or used a weapon at the time of the 

crime (rule 4.421(a)(2)), that defendant had engaged in violent conduct which indicates a 

serious danger to society (rule 4.421(b)(1)), and that defendant has prior convictions as 

an adult that are numerous and increasing in seriousness (rule 4.421(b)(2)).

On September 30, 2022, the jury found defendant guilty of second degree murder 

and found the firearm allegation true. The jury also found defendant guilty on all 

remaining charges. In a bifurcated proceeding that same day, the prosecution dismissed 

two aggravating factor allegations as to counts 3 and 4 – that the crimes involved great 

bodily harm (rule 4.421(a)(1)) and that defendant used a weapon (rule 4.421(a)(2)). The 

jury found all remaining aggravating factors true. 

On December 1, 2022, the trial court sentenced defendant to 15 years to life for 

the second degree murder conviction, plus 25 years to life for the firearm enhancement. 

The court further sentenced defendant to three years on count 3, eight months on count 4, 

and one year concurrent on count 5. The court stayed the sentence on count 2 pursuant to 

section 654. Defendant was sentenced to an aggregate prison term of 43 years, eight 

months, to life. 

Defendant filed a timely notice of appeal on December 6, 2022. 

STATEMENT OF FACTS

Testimony of Pompeyo “Popeye” DeLeon 

On January 2, 2021, DeLeon and several other people were standing near a storage 

unit behind an apartment complex in Bakersfield, California. DeLeon worked at that

apartment complex. DeLeon testified that defendant, known also as “Kreeper,” and Jesus 

5 All further references to rules are to the California Rules of Court.
4.

Chavez, Jr., also known as “Jesse” approached DeLeon. Defendant lifted his shirt to 

reveal a firearm with a clip. Defendant asked DeLeon, “You know who I am?” DeLeon 

responded that he did. Defendant then said, “I’m . . . the one who shot Lokito on Haley 

Street,”6 and accused DeLeon of stealing his Bluetooth speaker. DeLeon denied stealing 

the speaker, and defendant said he was going to come back with the person who 

inculpated DeLeon. 

Defendant and Chavez then started walking toward the street, and DeLeon ran 

toward an alley. As DeLeon left, he could see defendant and Ruben Vega, who he only 

knew as “Temper,” arguing. As DeLeon entered the alley, he heard three gunshots. 

DeLeon testified that he did not know Vega personally but had seen him around 

the apartments. DeLeon had asked a man named Joe, who lived in the front of the 

apartments, about Vega. Joe had told DeLeon that Vega was staying with him for a week 

or a couple weeks. When DeLeon would see Vega, he would see him at Joe’s apartment. 

Prior to the shooting, DeLeon testified that Vega had passed by when defendant was 

talking to DeLeon. Once he saw DeLeon and defendant, Vega returned to the front of the 

apartments. 

DeLeon also gave a statement to Kern County Sheriff’s Sergeant M. Chambless 

on January 6, 2021. In that statement, DeLeon said that he saw Temper come out of 

Joe’s apartment the day of the shooting. 

Testimony of Jesus “Jesse” Chavez, Jr.

On February 8, 2021, Chavez was taken into custody on an outstanding warrant in 

an unrelated matter and spoke with Chambless about the shooting of Vega. Chavez told 

Chambless that “this fool named Kreeper . . . he is the one that shot him . . . .” 

6 DeLeon testified that Lokito was DeLeon’s brother-in-law and they were “kind 

of related.”
5.

Chavez stated that defendant got a ride from defendant’s brother in a blue car with 

a sunroof top. Defendant had gotten out of the car “all pissed” because he thought 

“Popeye” had stolen his Bluetooth speaker. Defendant had a gun, but DeLeon denied 

taking defendant’s speaker and walked away. That was when Vega showed up and 

started arguing with defendant. 

Chavez described Vega appearing “out of nowhere.” He said Vega did not come 

out of Joe’s apartment because “we were just right there in the front, chilling” and Vega 

“just showed up.” Chambless asked him if Vega came from the street or another 

apartment, and Chavez responded, “We don’t know, everybody was just there we were 

like, ‘what the hell?’ ” 

Vega called defendant a “child molester,” then pushed defendant and tried to run. 

Vega was trying to run around a truck, dodging defendant when defendant chased him 

and shot him. Chavez identified defendant from a photographic lineup after speaking 

with Chambless. At trial, Chavez identified defendant as the shooter, stating that 

defendant shot Vega because Vega called defendant a child molester. 

Defendant’s Apprehension 

On February 8, 2021, a Kern County Sheriff’s deputy was working undercover 

when he spotted defendant exit a blue Nissan Altima. Defendant then got back into the 

car and he and another individual drove away. A marked patrol car attempted to stop the 

vehicle, but it led officers on a short pursuit until it crashed into another vehicle. 

Defendant was apprehended in a front yard west of the crash scene. Defendant 

was found carrying a glasses case that contained nine-millimeter and .22-caliber 

ammunition. Defendant alleged the case belonged to his brother, Andrew Gonzales, and 

that his brother had been armed with a firearm during the pursuit. 

During a subsequent interview, defendant initially denied knowing anything about 

the shooting, or about arguing with Vega. He said that while his brother was prohibited 

from owning firearms his brother had purchased two guns, and was “always trying to 
6.

stack up . . . he’s always getting in trouble for guns.” However, defendant denied 

knowing there was a gun in his brother’s car. 

Ultimately, defendant admitted that he went with his brother and Chavez to 

confront someone he believed stole his speaker. Defendant said the day before Vega had 

threatened him with a gun, but defendant did not see a gun on Vega when defendant shot 

him. Defendant said he did not know what happened to the gun he used to shoot Vega, 

only that “[i]t just disappeared.” 

Forensic Evidence

At the scene of Vega’s murder, officers found two spent ammunition casings, one 

from a nine-millimeter FC Luger, and one spent casing of an unspecified caliber. At the 

scene of the accident where defendant was apprehended, officers found a handgun and a 

baseball cap outside the car. There was no testimony regarding the distance the gun was 

from the car, although the prosecution described the distance as “five, ten feet” outside 

the driver’s door. Officers also found a loaded gun magazine in the center console of the 

car and a baggie of mixed, live ammunition comprised of nine-millimeter and .40-caliber 

rounds. 

Vega suffered one gunshot which traveled through his right arm and into his chest. 

The bullet pierced both of Vega’s lungs and his aorta, which caused profuse, rapid blood 

loss. 

DISCUSSION

I. The Trial Court Properly Instructed on CALCRIM No. 3475, and Any Error 

Was Harmless. 

Defendant argues there was no evidentiary basis for the trial court to give the 

CALCRIM No. 3475 instruction. Defendant argues the instruction was irrelevant and 

was highly prejudicial because it negated defendant’s theory of imperfect self-defense. 

We find that substantial evidence supports giving the instruction, and any error was 

harmless. 
7.

A. Background

CALCRIM No. 3475

During the jury instruction conference, the prosecution requested CALCRIM 

No. 3475: 

“[PROSECUTOR]: I also think the Court should consider the right 

to eject a trespasser since [defendant] had no right to be there. 

“THE COURT: [Defense counsel]?

“[DEFENSE COUNSEL]: I would object to that because the 

evidence was that Mr. Vega did not live there, I mean, so what right would 

he have to eject a trespasser? So I don’t think that applies. 

“[PROSECUTOR]: A guest in a home has every right to be there. 

A guest would be a friend of the individuals who live there. 

“[Defendant] was scaring everybody and threatening people. Mr. 

Vega comes around and is a friend of those people. He would have a right 

to eject a trespasser. 

“THE COURT: So you are referring to the alleged victim in this 

case as a lawful occupant of that property? 

“[PROSECUTOR]: Yes, your Honor.” 

The trial court then gave the CALCRIM No. 3475 instruction, which read: 

“The lawful occupant of a property may request that a trespasser 

leave the property. If the trespasser does not leave within a reasonable 

period of time and it would appear to a reasonable person that the trespasser 

poses a threat to the property or the occupants, the lawful occupant may use 

reasonable force to make the trespasser leave.

“ ‘Reasonable force’ means the amount of force that a reasonable 

person, in the same situation, would believe is necessary to make the 

trespasser leave. 

“If the trespasser resists, the lawful occupant may increase the 

amount of force he or she uses in proportion to the force used by the 

trespasser and the threat the trespasser poses to the property.
8.

“When deciding whether the defendant used reasonable force, 

consider all the circumstances as they were known to and appeared to the 

defendant and consider what a reasonable person in a similar situation with 

similar knowledge would have believed. If the defendant’s beliefs were 

reasonable, the danger does not need to have actually existed.

“The People have the burden of proving beyond a reasonable doubt 

that the defendant used more force than was reasonable. If the People have 

not met this burden, you must find the defendant not guilty of murder and 

manslaughter.” 

During closing argument, the prosecution argued, in relevant part: 

“But I want you to consider [defendant], with a questionable 

criminal history, comes around, start[s] waving a gun around, starts 

threatening people, starts threatening Mr. Vega’s friends at a place where 

he doesn’t even live. This is their home. This is their apartment complex. 

This is where they stay, where they hang out, and he’s coming over here 

waving a gun around and threatening people. . . .

“And when you see the pictures of Ruben Vega, he does not look 

like somebody you would bump in a hallway. Look at his ID. He’s six feet 

tall. He’s 240, 250 pounds, something like that. He’s as big as I am. He’s 

got tattoos on his face. And he doesn’t like [defendant] coming in and 

throwing weight around that he doesn’t deserve to throw around, and he 

confronts him, confronts him with the fact that he is not the person to be out 

there threatening people. [¶] . . . [¶]

“Now, there’s a couple other jury instructions that I want to talk to 

you briefly about before we move on. 

“The first is the right to eject a trespasser. 

“Now, the way it was phrased it kind of seemed like you’d be 

analyzing it as though [defendant] was the one ejecting a trespasser, and 

that’s really what the instruction was designed for, somebody’s kicking 

somebody off their property, gets violent, and somebody gets hurt, and then 

you go after the landowner. All right, well, we need to know that 

landowner’s rights. That’s the way it was phrased.

“But I want you to look at the law that’s there. A lawful occupant of 

property, somebody who gets to be there, gets to kick you out of their 

property if you don’t get to be there. 
9.

“So who was the lawful occupant? Ask Jesus Chavez. The police 

did. Can Ruben go around there? Does he get to be there? Does he get to 

hang out with you guys?

“Yeah, he comes around. He hangs around with us. He’s cool with 

us. He’s cool with my family. 

“Popeye, he gets to be there. All those people get to be there. But 

when [defendant] shows up with a loaded gun to make threats and to scare 

people, he doesn’t get to be there.

“Now, would it have been better if Ruben Vega had approached him 

and said kind sir, if you would please vacate the premises, you are a 

trespasser here, things might have gone better, but Ruben Vega was 

ejecting a trespasser, somebody who didn’t belong.

“Why is that important? Because Ruben Vega gets to do what he 

did. He gets to eject by pushing or by any level of reasonable force this 

interloper, this person who doesn’t belong there, this trespasser. He gets to 

push him out of there. And you don’t get to have a mitigation of your 

deliberate murder because you trespassed and you threatened people. [¶] 

. . . Ruben Vega gets to be there. He gets to push [defendant] away, get out 

of here.” 

In closing argument, defendant responded: 

“Now, the prosecutor mentioned instruction [CALCRIM No.] 3475,

right to eject trespasser from real property. 

“Well, you don’t eject a trespasser by calling them a child molester, 

green-lighting them in front of 20 individuals, and pushing them. That’s 

not how you just eject a trespasser. 

“And this is happening on the street, a public thoroughfare. That’s 

not his place. That’s not his abode.” 

In rebuttal, the prosecution concluded: 

“And at the same time [defendant is] claiming that Mr. Vega had no 

right to eject [defendant] from the property, [defendant is] also arguing that 

he was everybody’s buddy there. He was their homie. He was their friend. 

Yeah, that gives him a right to eject a trespasser.
10.

“Somebody breaks into your home while you’re in making 

cucumber sandwiches, you expect your buddy in the front room to tell them 

to get out. 

“Mr. Vega had every right to push him to the curb just like he did. 

[Defendant] set up his own situation. He put himself there, his wrongful 

conduct, and now the just and proper response.” 

Self-Defense Instructions

The trial court instructed the jury on imperfect self-defense as follows: 

“A killing that would otherwise be murder is reduced to voluntary 

manslaughter if the defendant killed a person because he acted in imperfect 

self-defense. 

“If you conclude that defendant acted in complete self-defense, his 

action was lawful and you must find him not guilty of any crime. 

“The difference between complete self-defense and imperfect selfdefense depends on whether the defendant’s beliefs in the need to use 

deadly force was reasonable. 

“The defendant acted in imperfect self-defense if: 

“One, the defendant actually believed that he was in imminent 

danger of being killed or suffering great bodily injury;

“And, two . . . . [¶] . . . the defendant actually believed that the 

immediate use of deadly force was necessary to defendant against the 

danger, but at least one of those beliefs was unreasonable. 

“Belief in future harm is not sufficient, no matter how great or how 

likely the harm is believed to be. 

“In evaluating the defendant’s beliefs, consider all of the 

circumstances as they were known and appeared to the defendant.

“A danger is imminent if when the fatal wound occurred the danger 

actually existed or the defendant believed it existed. The danger must seem 

immediate and present so that it must be instantly dealt with. It may not be 

merely prospective or in the near future. 

“Imperfect self-defense does not apply when the defendant, through 

his own wrongful conduct, has created circumstances that justify his 

adversary’s use of force. 
11.

“If you find that Ruben Vega threatened or harmed the defendant in 

the past, you may consider that information in evaluating the defendant’s 

beliefs. 

“If you find that the defendant knew that Ruben Vega had threatened 

or harmed others in the past, you may consider that information in 

evaluating the defendant’s beliefs. 

“ ‘Great bodily injury’ means significant or substantial physical 

injury. It is an injury that is greater than minor and moderate harm. 

“The People have the burden of proving beyond a reasonable doubt 

that the defendant was not acting in imperfect self-defense. If the People 

have not met this burden, you must find the defendant not guilty of murder. 

“A person does not have the right to self-defense if he or she 

provokes a fight or quarrel with the intent to create an excuse to use force. 

“The right to use force in self-defense continues only as long as the 

danger exists or reasonably appears to exist. When the attacker withdraws 

or no longer appears capable of inflicting any injury, then the right to use 

force ends.”7 

Defendant’s theory of imperfect self-defense was based on Vega calling defendant 

a child molester in front of a group of people and pushing him, which defendant argued 

put him in immediate, life-threatening danger: 

“ ‘You are a child molester,’ that’s what Ruben Vega, aka Temper, 

calls [defendant] to his face, a child molester, the single worst thing you 

could ever call another person, a child molester, a monster, reviled, hated, 

not worthy of life, and Ruben Vega calls him that out loud, in front of 20 

people right there. ‘You’re a child molester.’

“Fear, anger, outrage, incredulousness, oh, my God, what is 

everyone thinking, sheer panic, sudden vulnerability. ‘You’re a child 

molester.’ And with those very dangerous words, a big ol’ target gets 

placed on [defendant’s] back, a blazing bull’s-eye placed squarely on his 

back. It was a green light to kill him or attack him. He had just been green 

lit.

7 The instructions are pursuant to CALCRIM Nos. 571, 3472, and 3474.
12.

“Temper didn’t need a gun. He didn’t need a knife. He didn’t need 

his fists. He didn’t need any of those things. His words, his battle cry, was 

the weapon. [¶] . . . [¶]

“And after saying those very dangerous words, ‘You’re a child 

molester,’ Temper pushes [defendant]. He pushes [defendant]. Temper is 

the first to apply physical force. Temper is the first to instigate with his 

words and with his body, by uttering that accusation then applying physical 

force.” 

General Instructions

The jury was also instructed on CALCRIM No. 200, which in relevant part reads: 

“Some of these instructions may not apply, depending on your 

findings about the facts of the case. Do not assume just because I give a 

particular instruction that I am suggesting anything about the facts. After 

you have decided what the facts are, follow the instructions that do apply to 

the facts as you find them.” 

B. Legal Standard

We review de novo whether jury instructions state the law correctly. (People v. 

Jackson (2010) 190 Cal.App.4th 918, 923.) “When instructions are claimed to be 

conflicting or ambiguous, ‘we inquire whether the jury was “reasonably likely” to have 

construed them in a manner that violates the defendant’s rights.’ [Citation.]” (People v. 

Franco (2009) 180 Cal.App.4th 713, 720.) “We assume that the jurors are ‘ “ ‘intelligent 

persons and capable of understanding and correlating all jury instructions . . . given.’ ” ’

[Citation.] If reasonably possible, we will interpret the instructions to support the 

judgment rather than to defeat it. [Citation.] Instructional error affects a defendant’s 

substantial rights if the error was prejudicial under the applicable standard for 

determining harmless error. [Citations.]” (Ibid., italics omitted.)

“ ‘ “When an appellate court addresses a claim of jury misinstruction, it must 

assess the instructions as a whole, viewing the challenged instruction in context with 

other instructions, in order to determine if there was a reasonable likelihood the jury 
13.

applied the challenged instruction in an impermissible manner.” ’ [Citation.]” (People v. 

Gomez (2018) 6 Cal.5th 243, 313.) 

“A party is entitled to a requested instruction if it is supported by substantial 

evidence. [Citation.] Evidence is ‘[s]ubstantial’ for this purpose if it is ‘sufficient to 

“deserve consideration by the jury,” that is, evidence that a reasonable jury could find 

persuasive.’ [Citation.] At the same time, instructions not supported by substantial 

evidence should not be given. [Citation.] ‘It is error to give an instruction which, while 

correctly stating a principle of law, has no application to the facts of the case. [Citation.]’

[Citation.]” (People v. Ross (2007) 155 Cal.App.4th 1033, 1049–1050, italics omitted.) 

“[T]he test is not whether any evidence is presented, no matter how weak. Instead, the 

jury must be instructed when there is evidence that ‘deserve[s] consideration by the jury, 

i.e., “evidence from which a jury composed of reasonable [people] could have 

concluded” ’ that the specific facts supporting the instruction existed. [Citation.]” 

(People v. Petznick (2003) 114 Cal.App.4th 663, 677, italics omitted.) 

Generally, CALCRIM No. 3475 applies to cases in which the owner or occupant 

of property is charged with using excessive force to remove a trespasser. (People v. 

Johnson (2009) 180 Cal.App.4th 702, 709 (Johnson).) “The principles set forth in 

CALCRIM No. 3475 might also apply when there is an issue of whether a trespasser had 

any right to defend himself against the use of force by the owner/occupant of the 

property. In general, if an owner/occupant lawfully uses force to defend himself against 

aggression by a trespasser, then the trespasser has no right of self-defense against the 

owner/occupant’s use of force.” (Id. at pp. 709–710, italics omitted.) This likewise 

applies to a defendant’s claim of imperfect self-defense. (People v. Watie (2002) 100 

Cal.App.4th 866, 878.) 
14.

C. Analysis

i. Substantial evidence supports giving the CALCRIM No. 3475 instruction. 

Defendant argues evidence failed to support the CALCRIM No. 3475 instruction, 

because there was no evidence that Vega was a lawful occupant of the apartment 

complex or that the confrontation between Vega and defendant happened on private 

property. Defendant argues all evidence points to the shooting occurring in the public 

street. We disagree.

Based on the evidence presented in this case, a reasonable jury could find 

persuasive that Vega was a lawful occupant of Joe’s apartment. DeLeon testified that Joe 

told him Vega was staying with Joe for a week or a couple weeks. Every time DeLeon 

would see Vega, it was around Joe’s apartment. In a statement made to Chambless, 

DeLeon said on the day of the shooting, DeLeon saw Vega come out of Joe’s apartment. 

These facts tend to support a finding that Vega was an invited guest or lawful occupant of 

the apartment, and therefore the apartment complex. 

Defendant appears to argue that to be a lawful occupant, Vega must have actually 

lived in Joe’s apartment. However, residency is legally distinct from lawful occupancy 

and confers different rights. For example, “California law declares to be justifiable, 

homicide committed in reasonable defense of habitation ( . . . § 197; People v. Gleghorn

(1987) 193 Cal.App.3d 196, 200), but it extends the presumption of ‘a reasonable fear of 

imminent peril of death or great bodily injury’ only to residents ( . . . § 198.5).” (People 

v. Silvey (1997) 58 Cal.App.4th 1320, 1326 (Silvey).) 

In Silvey, the defendant, who shot his friend’s ex-boyfriend while in his friend’s 

trailer, was found to be a lawful occupant of the trailer but not a resident. (Silvey, supra,

58 Cal.App.4th at p. 1327, fn. 3.) The defendant was a regular visitor – he had a key to 

the trailer, would shower there once a day and occasionally slept over. (Id. at pp. 1323–
15.

1324.) The trial court instructed the jury on CALJIC No. 5.40,

8

the right of an occupant 

to eject a trespasser, but no one suggested the defendant was a resident. (Silvey, at 

p. 1327, fn. 3.) 

Similarly, in this case, substantial evidence supports the conclusion that Vega was 

either a regular visitor or a short-term occupant of Joe’s apartment, and therefore a lawful 

occupant. For CALCRIM No. 3475 to apply, Vega need not be a resident.

Next, while the facts appear to indicate that the shooting happened on the public 

street, the facts also show Vega was not on the street when he pushed defendant. 

Although Chavez did not see Vega come out of Joe’s apartment, Chavez told Chambless 

that “we were just right there in the front, chilling.” Chavez’s statement can reasonably 

be interpreted as Chavez was either at or near the front of Joe’s apartment, when Vega 

confronted defendant. Chavez also told Chambless that after Vega pushed defendant, he 

tried to run. This implies that the confrontation ended in a different location from where 

it started. 

The prosecution’s use of the instruction was also limited to Vega pushing 

defendant. The prosecution argued, “And you don’t get to have a mitigation of your 

deliberate murder because you trespassed and you threatened people. [¶] . . . Vega gets 

to be there. He gets to push [defendant] away, get out of here.” A reasonable jury could 

consider that Vega was attempting to eject defendant as a trespasser from the apartment 

complex to the public street – property where Vega was a lawful occupant. Therefore,

evidence is sufficient to warrant giving the CALCRIM No. 3475 instruction.

ii. Any error was harmless.

In evaluating for prejudice, “[t]he ‘generally applicable California test for 

harmless error’ is set forth in [People v. Watson (1956)] 46 Cal.2d 818.” (People v. 

Hendrix (2022) 13 Cal.5th 933, 942.) “Under the Watson test, we deem an error 

8 This instruction is the CALJIC corollary to CALCRIM No. 3475.
16.

harmless unless it is ‘reasonably probable’ the outcome would have been different in the 

absence of the error. [Citation.]” (Ibid.) This includes “ ‘ “incorrect, ambiguous, 

conflicting, or wrongly omitted instructions that do not amount to federal constitutional 

error . . . .” ’ ” (People v. Beltran (2013) 56 Cal.4th 935, 955.) Likewise, “giving an 

irrelevant or inapplicable instruction is generally ‘ “only a technical error which does not 

constitute ground for reversal.” ’ ” (People v. Cross (2008) 45 Cal.4th 58, 67.)

Primarily, the jury in this case was instructed that “[s]ome of these instructions 

may not apply” and to “follow the instructions that do apply to the facts as you find 

them.” If CALCRIM No. 3475 was irrelevant, for example if the jury found Vega was 

not a lawful occupant or Vega did not confront defendant on private property, the jury 

was directed to disregard the instruction. We presume that the jury followed the 

instructions given. (People v. Sutic (1953) 41 Cal.2d 483, 494.) 

Defendant argues if irrelevant, the instruction was not harmless because it denied 

him his due process right to present a complete defense. Defendant argues it entirely 

negated his imperfect self-defense claim. 

The prosecution argued, and the jury was instructed that “[i]mperfect self-defense 

does not apply when the defendant, through his own wrongful conduct, has created 

circumstances that justify his adversary’s use of force.” However, the prosecution 

posited that defendant cannot claim self-defense when Vega pushed him. Defendant, in 

turn, did not make that argument.

Defendant’s imperfect self-defense claim rested on the claim that defendant

believed Vega calling him a child molester “green-lit” defendant for imminent violence. 

In closing, defendant argued: 

“ ‘You’re a child molester.’ And with those very dangerous words, a big 

ol’ target gets placed on [defendant’s] back, a blazing bull’s-eye placed 

squarely on his back. It was a green light to kill him or attack him. . . .

Temper didn’t need a gun. He didn’t need a knife. He didn’t need his fists. 
17.

He didn’t need any of those things. His words, his battle cry, was the 

weapon.” 

Although defendant argued Vega pushed him first, he did not argue that the 

physical contact put him in fear for his life – rather, Vega’s words did. In the context of 

defendant’s argument, the jury would not have considered CALCRIM No. 3475 when 

determining whether Vega’s words led to defendant harboring an unreasonable belief that 

he was in imminent danger of being killed or suffering great bodily injury, and use of 

deadly force was necessary to defend against the danger.

Defendant also argues the length of the jury’s deliberation is proof of the 

prejudicial impact of the error. Defendant argues that while the case is not factually 

complex, the jury deliberated for three days, requested legal definitions of 

“ ‘premeditated/premeditation,’ ” “ ‘willful’ ” and “ ‘deliberate’ ” and requested a 

readback of Chavez’s testimony before reaching a verdict. 

The jury in this case was tasked with making a challenging decision between first 

and second degree murder. The jury’s questions show the jury struggled with 

premeditation and ultimately concluded that defendant committed second degree murder. 

Defendant’s argument is mere conjecture. Nothing in the jury’s questions indicates the 

jury struggled with CALCRIM No. 3475 or its effect on the degree of murder in this case. 

Finally, the evidence of defendant’s guilt is overwhelming. The jury was 

instructed “[t]he right to use force in self-defense continues only as long as the danger 

exists or reasonably appears to exist. When the attacker withdraws or no longer appears 

capable of inflicting any injury, then the right to use force ends.” The facts show Vega 

ran almost immediately after calling defendant a child molester and pushing him, thereby 

withdrawing. Vega’s injuries indicate he was not facing defendant when he was shot, 

consistent with Chavez’s testimony that Vega was running away from defendant, trying 

to “dodge” him. Defendant nonetheless chased Vega and shot him as Vega ran. In light 
18.

of these facts, it is not reasonably likely that the outcome would have been more 

favorable to defendant, had the jury not been instructed on CALCRIM No. 3475. 

II. Substantial Evidence Supports Defendant’s Possession of a Firearm 

Conviction

Defendant argues there is insufficient evidence to support the possession of a 

firearm conviction in count 3. Defendant argues the gun was found on the street, no 

evidence was presented about where the gun was before it landed on the street, and no 

evidence was presented that defendant had access to or exercised any dominion or control 

over the gun. We find substantial evidence supports the conviction. 

A. Legal Standard

In reviewing a judgment for substantial evidence, this court “ ‘must determine 

whether a reasonable trier of fact could have found the prosecution sustained its burden 

of proving the defendant guilty beyond a reasonable doubt.’ ” (People v. Johnson (1980) 

26 Cal.3d 557, 576.) We “examine the whole record in the light most favorable to the 

judgment to determine whether it discloses substantial evidence—evidence that is 

reasonable, credible and of solid value—such that a reasonable trier of fact could find the 

defendant guilty beyond a reasonable doubt.” (People v. Kraft (2000) 23 Cal.4th 978, 

1053.) “To entitle a reviewing court to set aside a jury’s finding of guilt, the evidence of 

identity must be so weak as to constitute practically no evidence at all.” (People v. Braun

(1939) 14 Cal.2d 1, 5.) 

“Any person who has been convicted of a felony under the laws of the United 

States, the State of California, or any other state . . . who owns, purchases, receives, or 

has in possession or under custody or control any firearm is guilty of a felony.” 

(§ 29800, subd. (a)(1).)

“A defendant possesses a weapon when it is under his dominion and control. 

[Citation.] A defendant has actual possession when the weapon is in his immediate 

possession or control. He has constructive possession when the weapon, while not in his 
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actual possession, is nonetheless under his dominion and control, either directly or 

through others. [Citations.]” (People v. Peña (1999) 74 Cal.App.4th 1078, 1083–1084.)

“ ‘Possession may be imputed when the contraband is found in a location which is 

immediately and exclusively accessible to the accused and subject to his dominion and 

control’ [citation] or which is subject to the joint dominion and control of the accused and 

another. [Citations.]” (People v. Francis (1969) 71 Cal.2d 66, 71.) 

B. Analysis

Sufficient evidence supports a finding that defendant had constructive possession 

of the gun in his brother’s car. 

In People v. Taylor (1984) 151 Cal.App.3d 432 (Taylor), the defendant obtained 

the keys to his girlfriend’s father’s car without permission and took it. The car was 

reported missing, and officers spotted it the following day, occupied by two males. (Id.

at p. 434.) As officers pursued the car, they saw a gun thrown from the passenger 

window into bushes. (Ibid.) The car was ultimately involved in an accident, the 

defendant fled the scene, and was later apprehended. (Id. at p. 435.) 

The defendant was charged with, in relevant part, possession of a loaded firearm 

in public.9 The appellate court affirmed the conviction, finding that although the 

defendant was the driver and the gun was thrown from the passenger side, it was thrown 

soon after the chase began and the defendant’s driving represented “an unequivocal 

attempt to avoid capture.” (Taylor, supra, 151 Cal.App.3d at p. 436.) The appellate 

court concluded there was sufficient evidence that the defendant had constructive 

possession of the firearm. (Ibid.) 

In People v. Miranda (2011) 192 Cal.App.4th 398 (Miranda), the defendant was 

one of four occupants in a vehicle, which was suspected to have been involved in a 

shooting. Officers pursued the vehicle and witnessed objects being tossed out of the back 

9 Then, section 12031, subdivision (a). 
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windows of the vehicle, including pieces of a broken shotgun and live ammunition. (Id.

at p. 404.) The vehicle ultimately crashed into a fence and the occupants fled. (Ibid.) 

When the defendant was apprehended, he said he was in the front passenger seat, did not 

know there were any firearms in the car, and did not know anything was being tossed out 

of the car. (Id. at pp. 404–405.) 

The appellate court affirmed the defendant’s possession of a firearm conviction. 

(Miranda, supra, 192 Cal.App.4th at p. 410.) The court found there was no dispute that 

the defendant was in the vehicle during the pursuit. (Ibid.) It could also be inferred that 

the shotgun was also in the vehicle because pieces of it were thrown out of the back 

windows. (Ibid.) The court concluded: 

“[I]t stands to reason that the shotgun was in the [vehicle] before the attack 

at the gas station and the jury reasonably could have inferred [the] 

defendant and the others were aware of its presence. This, after all, was a 

shotgun not a handgun. The jury also was free to disbelieve [the] 

defendant’s testimony that he was unaware of the shotgun. Sufficient 

circumstantial evidence exists from which the jury could infer that [the] 

defendant had at least joint dominion and control over the shotgun before it 

was tossed out of the car window.” (Id. at pp. 410–411.)

In this case, a gun was found five to 10 feet outside the driver’s door of

defendant’s brother’s car. Defendant knew his brother had purchased two guns and was 

“always getting in trouble for guns.” When defendant was apprehended, he said that his 

brother was armed with a firearm during the pursuit, although he later denied knowing 

there was a gun in the car. Defendant had live ammunition in a glasses case on his 

person, and a search of the car revealed a loaded magazine and a baggie of ammunition in 

the center console of the car. These facts present circumstantial evidence that defendant

had at least joint dominion and control over the gun while he was in his brother’s car. 
21.

Defendant argues People v. Sifuentes (2011) 195 Cal.App.4th 141010 (Sifuentes) 

supports his position that he did not constructively possess the gun in the car. In 

Sifuentes, the defendant was found in a motel room shared with two women and a man. 

(Id. at p. 1414.) The defendant was laying on the bed nearest the door, and the man was 

kneeling next to the farther bed. Officers found a loaded handgun under the mattress in 

the farther bed. (Ibid.) 

The prosecution presented evidence that the defendant was a member of the same 

gang as the other man in the room, and that gang guns were “ ‘accessible’ ” to gang 

members “ ‘at most times.’ ” (Sifuentes, supra, 195 Cal.App.4th at pp. 1415, 1417.) The

prosecution was not able to elicit any evidence on whether the defendant had actual 

access to the firearm, and there did not appear to be any evidence presented about 

whether the defendant even knew the firearm was in the room. (Id. at p. 1418.) The 

appellate court found that the evidence fell short of providing substantial evidence that 

the defendant had the right to control the firearm in this case. (Id. at p. 1419.) 

However, Sifuentes is distinguishable on its facts. The case involved a shared 

motel room, where the defendant was found in a different part of the room from the gun. 

The gun was hidden under the far bed’s mattress, not easily accessible. And the 

prosecution did not elicit evidence about whether the defendant knew the gun was in the 

room. (Sifuentes, supra, 195 Cal.App.4th at p. 1417.) 

Circumstantial evidence in this case supports a finding that defendant was in the 

car with the gun, and knew the gun was there both because he knew his brother bought 

and possessed guns, and because he told officers his brother was armed during the 

pursuit. Just as in Taylor and Miranda, the evidence is sufficient to support a jury finding 

that defendant was in constructive possession of the gun while in his brother’s car. 

10 Disapproved on other grounds in People v. Farwell (2018) 5 Cal.5th 295, 304, 

footnote 6.
22.

III. Defendant Is Entitled to One Additional Day of Credit

Defendant argues he is entitled to one additional day of custody credit. The 

Attorney General agrees. 

“ ‘Calculation of custody credit begins on the day of arrest and continues through 

the day of sentencing.’ [Citation.]” (People v. Valdes (2020) 53 Cal.App.5th 953, 955.) 

Defendant was arrested on February 8, 2021, and sentenced on December 1, 2022, for a 

total of 662 days counting the day of sentencing. Defendant received 661 days of actual 

credit, one day short. This case will therefore be remanded to correct this error. 

DISPOSITION

The case is remanded with instructions to correct the finding of actual time served 

for presentence custody to 662 days, and to amend the abstract of judgment reflecting the 

correction and to forward a copy to the appropriate authorities. The judgment is 

otherwise affirmed. 

DETJEN, Acting P. J.

WE CONCUR:

FRANSON, J.

SMITH, J.