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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, Depu ty 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 irrelev ant 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 defend ant’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 degr ee murder of Ruben Vega (Pen. Code , 1 § 187 , subd. (a) ; count 1), with a discharg e 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 ammunit ion 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 C our t, 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 a dult 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 foun d 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 te rm 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, Cali fornia. DeLeon worked at that apartment complex. DeLeon testified that defendant , known also as “Kreeper,” and Jesus

5 All further r eferences 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

. De fendant asked DeLeo n , “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 t o 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 ent ered the alley, he heard three gunshots.
DeLeon testified that he did no t 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.
Test imony 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 defenda nt’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 n o t 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 defen dant 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 tr ial, 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 defend ant 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 Gonzale s , and
that his brother had been armed with a firearm during the pursui t. 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 t o6

.

stack up

. . . he’s always getting in trouble for guns.” However, defendant denied knowing there was a gun in his brother’s car. Ultimately, defend ant 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.”
Foren sic 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 ha ndgun 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 m ean, 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, i n 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 woul d 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
n ot 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, sta rt [ 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 he re 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 a s 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 pe ople. [¶] .

. . [¶]

“ 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 fami ly.

“ 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 s aid 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 o n 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 fro nt 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 murde r 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.

“ T he difference between complete self

- defense and imperfect self

defense 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 t hat 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 on e of those b eliefs 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 nea r 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 r easonable doubt that the defendant was not acting in imperfect self

- defense. If the People have not met this burd en, 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 qua rrel 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 [ defend ant] 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 c alls 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 dange rous words, a big ol’ target gets placed on [ defend ant’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 No s . 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 [ defend ant ] . He pushes [ defend ant ] . Temper is the firs t 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 sugges ting 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 (201 0) 190 Cal.App.4 th 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 (2 009) 180 Cal.App.4 th 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 suppor t 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. [Citation s .]” ( 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 jury13

.

applied the challenged instruction in an impermissible manner. ” ’ [Citation.]” ( People v. Gomez (2018) 6 Cal.5 th 243, 313.)

“ A party is entitled to a requested instruction if it is supported by substantial
evidence. [Citation.] Evidence is ‘ [s]ubstantial ’ fo r 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) 1 5 5 Cal .App.4 th 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

conc luded ” ’ that the specific facts supporting the instruction existed. [Citation.]” ( People v. Petznick (2003) 114 Cal.App.4 th 663, 677 , italics omitted .) Generally, CALCRIM No. 3475 applies to cases in which the owner or occupant of property is charged w ith using excessive force to remove a trespasser. ( People v.
Johnson (2009) 180 Cal.App.4 th 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 o f 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.4 th 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. Defend ant 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. H owever, 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 hi s 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.4 th at p. 132 7 , 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. 132 7 , 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 th ere. 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.5 th 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 ‘reasonabl y 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.4 th 935, 955.) Likewise, “ giving an irrelevant or inapplicable instruction is genera lly ‘ “ only a technical error which does not constitute ground for reversal. ” ’ ” ( People v. Cross (2008) 45 Cal.4 th 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 h is 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 [ defend ant’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.”
Alt hough 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
defend ant’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 o f 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 ’ ” a nd “ ‘ 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.
Defenda nt’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 thi s case. Finally, the evidence of defend ant’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 a ppears 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 whe n 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 light18

.

of these facts, it is not reasonably likely that the outcome would ha ve been more
favorable to defendant , had the jury not been instructed on CALCRIM No. 3475.
II. Substantial Evidence Supports Defenda nt’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 pr esented 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 reasonab le 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 t o 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 und er 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 weapo n 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 his19

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actual possession, is nonetheless under his dominion and control, either directly or through others. [Citations.]” ( People v. Pe ñ a (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’ [ c itation] or which is subject to the joint dominion and control of the accused and
another . [Citation s .]” ( 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 invo lved 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 av oid 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.4 th 398 ( Miranda ), the defendant was one of four occupants in a vehicle , which was suspected to have been involved in a shooting. Officer s pursued the vehicle and witnessed objects being tossed out of the back

9 Then , section 12031, subdivision (a).20

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windows of the vehicle, including pieces of a broken shotgun and liv e 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 p p . 404

– 405.) The appellate court affirmed the defendant’s possession of a firearm conviction. ( Miranda , supra , 192 Cal.App.4 th at p. 410.) The court found there was no dispute that
the defendant was in the vehicle during the pursuit. ( I bi d

. ) It could also be inferred that the shotgun was also in the vehicle because pieces of it were thrown out of the back windows. ( I

bi d

. ) 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] defe ndant ’ 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 p p . 410

– 411

. ) In this case, a gun was found five to 10 feet outside the driver’s door of
defend ant’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 am munition 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 ov er the gun while he was in his brother’s car.21

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Defendant argues People v. Sifuentes (2011) 195 Cal.App.4 th 1410 10 ( Sifuentes ) supports his position that he did not constructively possess the gun in the car. In Sifuentes , the defendant was found in a mote l 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 prosec ution 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.Ap p .4 th at p p

. 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
app ellate 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

mote l 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

ro om. ( Sifuentes , supra , 195 Cal.App.4 th 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

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III. Defendant Is Entitled t o One Additional Day o f 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.]” ( Peop le v. Valdes ( 2020) 5 3 Cal. App.5 th 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 a mend the abstract of judgment reflecting the
correction and to forward a copy to the appropriate authorities . The ju dgment is
otherwise affirmed.

DETJEN, Acting P. J. WE CONCUR:

FRANSON, J.

SMITH, J.