Filed 7/16/15 P. v. Corzo and Figueroa CA2/4

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

BRONCO CORZO and 

BRIAN FIGUEROA,

Defendants and Appellants.

 B254650

 (Los Angeles County

 Super. Ct. No. LA070082)

APPEAL from judgments of the Superior Court of Los Angeles County,

Martin L. Herscovitz, Judge. Affirmed.

Stephen Temko, under appointment by the Court of Appeal, for Defendant 

and Appellant Bronco Corzo.

John Lanahan, under appointment by the Court of Appeal, for Defendant and 

Appellant Brian Figueroa.

Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant 

Attorney General, Lance E. Winters, Assistant Attorney General, Steven D. 

Matthews, Roberta L. Davis and John Yang, Deputy Attorneys General, for 

Plaintiff and Respondent.
2

A jury convicted defendants and appellants Bronco Corzo and Brian 

Figueroa of the second degree murder of Justin Dunlap. (Pen. Code, § 187, subd. 

(a).)1 The trial court found true allegations that appellants suffered one prior strike 

each. (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d).) The court sentenced 

appellants to terms of 30 years to life each. Appellants challenge their convictions 

on several grounds. They contend the jury instruction on voluntary intoxication

improperly precluded the jury from considering evidence of their intoxication as it 

related to their defenses of heat of passion and imperfect self-defense. Figueroa 

challenges the denial of his Wheeler/Batson motion. (People v. Wheeler (1978) 22 

Cal.3d 258, overruled in part by Johnson v. California (2005) 545 U.S. 162; 

Batson v. Kentucky (1986) 476 U.S. 79.) Figueroa also challenges the trial court’s 

finding that the prosecution exercised due diligence in attempting to procure a 

witness’s attendance at trial. Corzo contends that the evidence is insufficient to 

sustain his conviction and that he was denied the effective assistance of counsel. 

We find none of appellants’ contentions meritorious and affirm both convictions.

BACKGROUND

Prosecution Evidence

On February 1, 2012, around 6:00 p.m., J.D. Kelley was walking through a 

park in Sherman Oaks on his way to a store.2 Kelley saw two Hispanic men, later 

identified as appellants, fighting with Dunlap.

3

 Dunlap was disoriented and trying 

 

1 All undesignated statutory references are to the Penal Code.

2 Kelley’s preliminary hearing testimony was read at trial because he was found by 

the trial court to be unavailable. 

3 Kelley identified appellants in “field showups” conducted by the police. 
3

to get to his feet while appellants kicked and punched him. One of the Hispanic

men was holding a crowbar. He approached Kelley and said, “What’s up?” 

Kelley told him to go home and said he would “trash” appellants if they did not. 

Appellants spoke to each other in Spanish and started backing away. Kelley 

continued walking to the store. 

James Uloth and Mark Fry were walking through the park on February 1, 

2012, around 6:00 p.m. They saw an African American man, later identified as 

Dunlap, walking toward them. They thought Dunlap was drunk or homeless, so 

they avoided him. 

After passing Dunlap, Uloth and Fry heard shouting behind them. They 

turned around and saw appellants attacking Dunlap. Appellants were punching 

and kicking Dunlap in the head and chest. Uloth and Fry started to go closer to 

stop them when they saw appellants take out a crowbar. One of them used the 

crowbar to strike Dunlap in the head while the other kicked Dunlap. Dunlap fell to 

the ground and tried to protect himself, but one of the men sat on Dunlap and 

continued to punch him in the face. Uloth estimated that they struck Dunlap 

between 24 and 50 times. 

Appellants began to walk away toward a girl who had been yelling that they 

needed to go. Dunlap lay motionless on the ground. One of the appellants ran 

back and struck Dunlap six to 12 more times. 

Uloth called 911 when he saw appellants take out the crowbar. After 

appellants left, Uloth, a former paramedic, tried to help Dunlap, who was bleeding 

profusely and had a severe brain injury. 

Los Angeles Police Officers Anthony Lopez and Cesar Corona heard the call 

about the assault. They saw Corzo walking down the middle of the street and 

asked if they could speak with him. Corzo placed his hands on top of his head and 
4

replied, “I know why you’re here. Let’s get this over with.” Corzo told Officer 

Lopez that Dunlap “tried to buy my homeboy’s girlfriend and I just started socking 

that fool. I think I knocked him out with the first punch.” Corzo stated that he 

“picked up a pipe and started hitting [Dunlap]. [Corzo] said he thought he ‘killed 

that fool,’ and . . . ‘I hope I killed that black piece of shit.’” Officer Lopez smelled 

alcohol on Corzo’s breath, but Corzo “spoke clearly and he stood straight.” Corzo 

did not state that Dunlap attacked him. Corzo had blood, abrasions, and swelling 

on his left hand, but no other injuries. 

Officer Scott Nunez and his partner saw Desiree Estrada and Figueroa 

walking on the sidewalk and stopped to speak to them. Figueroa was carrying a 

bottle of tequila and smelled of alcohol. He had some dried blood on his shirt but 

no visible injuries. 

Dunlap died from blunt force trauma to his head. He suffered multiple 

lacerations and contusions, and the left side of his skull was depressed with 

multiple fractures from being struck numerous times. Dunlap also had contusions 

on his body from being kicked and punched. He had bruises on his forearms from 

trying to protect himself, but no contusions on his hands that would have indicated 

he struck someone. Dunlap had marijuana and alcohol in his system. 

Defense Evidence

1. Character Evidence Regarding Dunlap

On November 18, 2009, off-duty Los Angeles County Sheriff Sergeant 

Valerie Silgero and her husband, Allen Dollens, also a sergeant, were at a gas 

station with their children. Sergeant Dollens saw Dunlap thank someone at a 

nearby gas pump. When Dunlap approached Sergeant Dollens, Sergeant Dollens 

thought Dunlap was panhandling, so he told Dunlap to leave his family alone. 
5

Dunlap became angry and told Sergeant Dollens he did not want money but 

wanted a ride. Dunlap used profanities and continued to argue even after 

Sergeants Silgero and Dollens identified themselves as officers and pointed their 

weapons at him. Dunlap ran into the gas station. Sergeants Silgero and Dollens 

chased Dunlap and apprehended him inside the gas station. Dunlap held his hands 

up and said, “I’m not playing anymore. I don’t want any more.” 

Estrada was at the park with appellants on the evening of the assault.4 

Dunlap approached them and asked how they were doing. Estrada described 

Dunlap as “weird” and drunk. Estrada and Corzo went to use a restroom in a local 

restaurant while Figueroa stayed at the park with Dunlap. When Estrada and 

Corzo returned, she saw Dunlap try to hit appellants. Appellants “tried to defend 

themselves.”

2. Expert Testimony

a. Corzo

Corzo presented evidence regarding the effect of a blood alcohol level as 

high as Dunlap’s at the time of his death, which was approximately .35 percent. 

The expert testified that most people at that level would be unconscious, but it 

might be possible for someone with a high alcohol tolerance to “walk around and 

throw punches.” 

Corzo, who was 19 years old at the time of trial, presented expert testimony

about risky behavior and low impulse control in adolescents, as well as evidence 

that alcohol impairs judgment and can lead to an increase in reckless behavior. 

 

4

Estrada was found to be unavailable, so her preliminary hearing testimony was 

read at trial. 
6

Dr. Andrea Bernhard, a psychologist, testified that Corzo suffered from 

substance abuse issues, depression, and a history of trauma based on his father’s 

violent behavior. Until Corzo was six years old, his father lived with him and beat 

up Corzo’s mother when he became drunk. Dr. Bernhard testified that this 

experience triggered an instinctive reaction in Corzo to protect his loved ones. 

b. Figueroa

Dr. Kevin Booker, a trauma specialist, testified that Figueroa suffered from 

post-traumatic stress disorder from being assaulted at the age of 16 and from 

witnessing a good friend being shot and murdered. Figueroa was hypervigilant as 

a result, which meant he overreacted to situations. 

3. Corzo’s Testimony

Corzo testified that his father beat him, his mother, and his brother until he 

was about six years old. He started drinking alcohol when he was 10 years old and 

using drugs when he was 11 years old. In the summer of 2011, Corzo was arrested 

after he took someone’s skateboard and hit him with it. 

Corzo claimed that on the morning of the offense, he and Figueroa drank 

two 18-packs of beer in 30 minutes and “some 40-ouncers” of beer before going to 

the park with Estrada. They smoked marijuana and drank gin when they arrived at 

the park. 

Dunlap arrived with a bottle of tequila, introduced himself, and sat down and 

started drinking with them. Dunlap asked Corzo if Estrada was his girlfriend and 

offered to “buy her.” Corzo accompanied Estrada to the restroom and when they 

returned a few minutes later, Dunlap and Figueroa were fighting. Corzo testified 

that Figueroa was “getting beat up.” Dunlap swung a pipe at Corzo, so Corzo 
7

grabbed it and hit Dunlap with it. Corzo hit Dunlap repeatedly after he fell to the 

ground to ensure that he did not get up. After walking away with Figueroa and 

Estrada, Corzo ran back and hit Dunlap with the pipe again because he thought 

Dunlap still posed a threat, even though he was lying on the ground not moving. 

Corzo testified that the pipe was heavy and that he struck Dunlap in the head about 

10 times. 

4. Figueroa’s Testimony

Figueroa was 20 years old at the time of trial and 18 years old at the time of 

the offense. He testified that he became somewhat paranoid after he was assaulted 

at the age of 16. Figueroa also testified about the skateboard incident in the 

summer of 2011, stating that Corzo took the victim’s skateboard and hit him in the 

face with it. 

Similar to Corzo, Figueroa testified that on the day of the offense, they drank 

two 18-packs of beer, smoked marijuana, and drank gin. Dunlap approached 

Figueroa, Corzo, and Estrada in the park, introduced himself, and said he “wanted 

to hang out” with them. After Estrada and Corzo went to the restroom, Dunlap 

asked Figueroa if he could “buy” Estrada. Figueroa became angry and told Dunlap 

to “get the fuck out of here.” Dunlap became angry and punched Figueroa. 

Figueroa punched him back but then tried to walk away. Dunlap followed him and 

continued punching him. Dunlap tried to hit him with a metal pole, but Corzo 

grabbed it. Figueroa told Corzo to relax, but Dunlap continued to try to hit them, 

even after Corzo hit him with the metal pole. Figueroa did not remember hitting 

Dunlap. 
8

Rebuttal Evidence

1. Character Evidence Regarding Dunlap

Reverend Dudley Chatman testified that Dunlap had been involved in his 

church since he was a youth and had always gotten along well with people at the 

church. Dunlap was 22 or 23 years old when he died. After Dunlap’s death, 

Reverend Chatman heard that Dunlap had had some difficulty with a police officer, 

but Reverend Chatman attributed that to the police force’s bias and lack of 

credibility in the community. 

2. Summer 2011 Skateboard Incident

Brett Allen testified that on June 28, 2011, around 5:00 p.m., Corzo ran up to 

him in the middle of the street, kicked him, punched him, and took his skateboard 

and hit him with it. Allen did not remember Figueroa attacking him, but a witness 

saw both Corzo and Figueroa attack Allen. The witness testified that he chased 

Figueroa and wanted to detain him for the police, but Figueroa told him his gang 

would kill him. Corzo and Figueroa were arrested for the attack. Corzo told police 

that he took Allen’s skateboard and hit him with it because he hated white people. 

3. Estrada’s Police Interview

Estrada told Detective Nuttall that prior to the incident, Dunlap and Figueroa 

were drinking and appeared to be getting along. However, when Estrada and 

Corzo returned from the restroom, Figueroa told them Dunlap tried to hit him. 

Dunlap was drunk and staggering, but he did not have any weapons. Figueroa was 

holding what appeared to be a stick. When Corzo tried to talk to Dunlap, Dunlap 

swung at him, so Corzo tackled him to the ground and held him down, and 

appellants began hitting him and kicking him. 
9

DISCUSSION

I. Wheeler/Batson

During jury selection, the prosecutor used peremptory challenges to excuse 

three Hispanic jurors, Juror Nos. 4, 22, and 36.

5

 Following the challenge to Juror 

No. 4, defense counsel for Figueroa made a Wheeler/Batson motion. The trial 

court found a prima facie case and asked the prosecutor’s reasons for excusing 

those jurors. After hearing the prosecutor’s explanations and defense counsel’s 

arguments, the trial court found that the prosecutor’s reasons were race-neutral, 

justifiable reasons. The court therefore denied the Wheeler/Batson motion. 

Figueroa contends that the trial court erred in denying his motion. We disagree.

The test for analyzing Wheeler/Batson claims is well-established. “‘First, 

the trial court must determine whether the defendant has made a prima facie 

showing that the prosecutor exercised a peremptory challenge based on race. 

Second, if the showing is made, the burden shifts to the prosecutor to demonstrate 

that the challenges were exercised for a race-neutral reason. Third, the court 

determines whether the defendant has proven purposeful discrimination. The 

ultimate burden of persuasion regarding racial motivation rests with, and never 

shifts from, the opponent of the strike. [Citation.] . . . [¶] ‘Review of a trial 

court’s denial of a Wheeler/Batson motion is deferential, examining only whether 

substantial evidence supports its conclusions. [Citation.] “. . . We presume that a 

prosecutor uses peremptory challenges in a constitutional manner and give great 

deference to the trial court’s ability to distinguish bona fide reasons from sham 

excuses. [Citation.] So long as the trial court makes a sincere and reasoned effort 

 

5 On appeal, Figueroa challenges only the excusal of Juror Nos. 4 and 22.
10

to evaluate the nondiscriminatory justifications offered, its conclusions are entitled 

to deference on appeal. [Citation.]” [Citation.]’ [Citation.]”6(People v. Taylor

(2009) 47 Cal.4th 850, 885-886 (Taylor).)

We discuss each challenged juror in turn. “As part of our analysis, we 

consider as ‘bearing on the trial court’s factual finding regarding discriminatory 

intent’ [citation] the comparisons of prospective jurors challenged and 

unchallenged that defendant expounds in his briefs . . . . At the same time, ‘we are 

mindful that comparative juror analysis on a cold appellate record has inherent 

limitations.’ [Citation.] In addition to the difficulty of assessing tone, expression 

and gesture from the written transcript of voir dire, we attempt to keep in mind the 

fluid character of the jury selection process and the complexity of the balance 

involved.” (Taylor, supra, 47 Cal.4th at p. 887.)

A. Juror No. 4

Juror No. 4 worked at a retail store and lived with her parents and her 

brother. She had no prior jury experience, stating that “I would feel a little bit 

weird doing it because it’s a lot of responsibility; but . . . I’m willing to take that 

chance.” When asked about the burden of proof, she stated that she thought “the 

playing field should be even,” but she could follow the law and apply the beyond-

 

6

The trial court here did not make explicit findings regarding the prosecutor’s 

stated reasons for the strikes. However, “[w]hen the trial court has inquired into the basis 

for an excusal, and a nondiscriminatory explanation has been provided, we . . . assume 

the court understands, and carries out, its duty to subject the proffered reasons to sincere 

and reasoned analysis, taking into account all the factors that bear on their credibility.” 

(People v. Mai (2013) 57 Cal.4th 986, 1049, fn. 26; see also People v. Williams (2013) 56 

Cal.4th 630, 653 [“‘When the prosecutor’s stated reasons are both inherently plausible 

and supported by the record, the trial court need not question the prosecutor or make 

detailed findings. . . .’ [Citation.]”].)
11

a-reasonable-doubt standard. When asked to explain what she meant by “weird,” 

she stated that she was “just nervous.”

The prosecutor explained that he excused Juror No. 4 because she was 

young, lived with her parents, and “used weird to describe the burden of proof and 

seemed . . . tentative about that.” He was planning to keep her on the jury until he 

saw older, “more seasoned” people whom he preferred to have on the jury. 

The prosecutor offered “‘permissible race-neutral justifications’” for 

excusing Juror No. 4: her youth and her expression of disagreement with the 

burden of proof. (People v. Montes (2014) 58 Cal.4th 809, 847.) The burden thus 

shifted to Figueroa to prove purposeful racial discrimination. (Ibid.) “‘The 

ultimate burden of persuasion regarding [discriminatory] motivation rests with, and 

never shifts from, the [defendant].’ [Citation.]” (People v. Manibusan (2013) 58 

Cal.4th 40, 75 (Manibusan).)

Figueroa contends that the prosecutor’s reasons were not race-neutral

because there was no evidence of Juror No. 4’s age, and because her response 

regarding the burden of proof actually indicated that she would have favored the 

prosecution, not the defense. Figueroa’s arguments do not satisfy his burden to 

prove purposeful racial discrimination. (See Manibusan, supra, 58 Cal.4th at p. 

75.)

The lack of evidence regarding Juror No. 4’s exact age is irrelevant. The 

prosecutor was able to see her and assess her age and maturity level for himself. 

(See People v. Lomax (2010) 49 Cal.4th 530, 575 [“A potential juror’s youth and 

apparent immaturity are race-neutral reasons that can support a peremptory 

challenge. [Citation.]”], italics added; People v. Perez (1994) 29 Cal.App.4th 

1313, 1328 [“Limited life experience is a race-neutral explanation.”].) The fact 

that there were other prospective jurors with no prior jury service does not 
12

establish purposeful racial discrimination in the prosecutor’s excusal of Juror No. 

4. 

Whether Juror No. 4’s expression of discomfort with the burden of proof 

favored the prosecution or the defense is similarly irrelevant. The prosecutor’s 

stated justification that Juror No. 4 seemed tentative about applying the proper 

burden of proof is a race-neutral justification. (See People v. Calvin (2008) 159 

Cal.App.4th 1377, 1386 [“[S]kepticism about the fairness of the criminal justice 

system is a valid ground for excusing jurors. [Citations.]”]

B. Juror No. 22

Juror No. 22 lived with her two parents and two brothers and had no prior 

jury experience. She had two uncles and a grandfather who had been charged with 

or convicted of domestic violence, robbery, and possession of weapons, both 

recently and in the past. The prosecutor explained that he excused her because her 

experience of having multiple family members recently accused of these crimes 

could affect her sympathy for the defendants. 

Figueroa points out that the prosecutor did not challenge two other jurors 

who had family members with experience in the criminal justice system. Juror No. 

16 had a brother who had been convicted of armed robbery 10 years earlier. Juror 

No. 17 had a son who had been charged with a DUI several months earlier. 

When discussing these jurors in the trial court, the prosecutor explained that 

Juror No. 16 was older than Juror No. 22 and that Juror No. 16’s brother had

“served time . . . a long time ago.” As to Juror No. 17, the prosecutor stated that 

her son’s charge was only a misdemeanor DUI. 

A comparison of Juror No. 22 with Juror Nos. 16 and 17 reveals substantial 

differences among them. Juror No. 22 had three family members who faced very 
13

serious charges, and her experience was recent. By contrast, Juror No. 16’s 

brother’s experience was 10 years old, and Juror No. 17’s son faced only a DUI 

charge. Substantial evidence supports the trial court’s finding that the prosecutor’s 

justifications for the excusals were not race based.

II. Admission of Kelley’s Preliminary Hearing Testimony

Figueroa challenges the trial court’s finding that Kelley was unavailable at 

trial and the resultant admission of Kelley’s preliminary hearing testimony. 

Figueroa argues that the trial court erred in finding that the prosecution exercised 

reasonable diligence in attempting to locate Kelley. The record demonstrates to 

the contrary.

“A criminal defendant has the right, guaranteed by the confrontation clauses 

of both the federal and state Constitutions, to confront the prosecution’s witnesses. 

[Citations.] . . . [¶] Although important, the constitutional right of confrontation 

is not absolute. [Citations.] ‘Traditionally, there has been “an exception to the 

confrontation requirement where a witness is unavailable and has given testimony 

at previous judicial proceedings against the same defendant [and] which was 

subject to cross-examination . . . .” [Citation.]’ [Citation.] Pursuant to this 

exception, the preliminary hearing testimony of an unavailable witness may be 

admitted at trial without violating a defendant’s confrontation right. [Citation.]” 

(People v. Herrera (2010) 49 Cal.4th 613, 620-621 (Herrera).) 

This exception is codified in California Evidence Code section 1291, 

subdivision (a)(2), which provides that “‘former testimony,’ such as preliminary 

hearing testimony, is not made inadmissible by the hearsay rule if ‘the declarant is 

unavailable as a witness,’ and ‘[t]he party against whom the former testimony is 

offered was a party to the action or proceeding in which the testimony was given 
14

and had the right and opportunity to cross-examine the declarant with an interest 

and motive similar to that which he has at the hearing.’” (Herrera, supra, 49 

Cal.4th at p. 621, fn. omitted.) 

Under Evidence Code section 240, subdivision (a)(5), “a witness is 

unavailable when he or she is ‘[a]bsent from the hearing and the proponent of his 

or her statement has exercised reasonable diligence but has been unable to procure 

his or her attendance by the court’s process.’ (Italics added.) The term 

‘[r]easonable diligence, often called “due diligence” in case law, “‘connotes 

persevering application, untiring efforts in good earnest, [and] efforts of a 

substantial character.’”’ [Citation.] Considerations relevant to the due diligence 

inquiry ‘include the timeliness of the search, the importance of the proffered 

testimony, and whether leads of the witness’s possible location were competently 

explored.’ [Citation.]” (Herrera, supra, 49 Cal.4th at p. 622.) 

“[T]he burden is on the government to prove it has exercised good faith and 

due diligence in attempting to secure a witness’s attendance for trial. [Citation.] 

On review of this issue, we must defer to the trial court’s factual findings that are 

supported by substantial evidence, but we ‘independently review whether the facts 

demonstrate prosecutorial good faith and due diligence.’ [Citation.]” (People v. 

Roldan (2012) 205 Cal.App.4th 969, 980.) 

Detective James Nuttall testified at an Evidence Code section 402 hearing. 

He stated that Kelley was cooperative when Detective Nuttall served him with a 

subpoena prior to the preliminary hearing. Detective Nuttall maintained monthly 

telephone contact with Kelley after the preliminary hearing. However, Kelley 

worked in the trucking business and moved to Florida approximately six months 

before trial. After Kelley moved, he told Detective Nuttall he was destitute and

had lost his home and his business. Detective Nuttall told him the prosecutor 
15

would make travel arrangements to fly him out for trial. The trial was continued 

several times, and each time Detective Nuttall spoke with Kelley to remind him he 

was under subpoena to appear. Kelley would not give Detective Nuttall a new 

address, and Detective Nuttall assumed this was because he was homeless. 

Detective Nuttall attempted to contact the Department of Motor Vehicles to obtain 

a pink slip so that Kelley could sell his truck to raise money to come to California, 

but to no avail. 

Detective Nuttall spoke to Kelley by telephone a week before the Evidence 

Code section 402 hearing and learned that he was in Michigan. However, a few 

days before the hearing, Detective Nuttall’s calls to Kelley went to voicemail and 

were not returned. Detective Nuttall went to Kelley’s last known address in 

California, but the building manager did not have a forwarding address, explaining 

that she was attempting to find Kelley because he owed $2000 in lease payments. 

Detective Nuttall did not contact Michigan law enforcement to try to find Kelley. 

He further testified that the police department would attempt to track someone’s 

cell phone if “live suspects or missing persons” were involved, but not in this 

situation. 

The trial court found that the prosecution took reasonable steps to obtain 

Kelley’s presence at trial by, inter alia, talking to him, trying to convince him to be 

available, and checking with his previous landlord. The court therefore declared 

Kelley unavailable as a witness. 

In challenging the court’s ruling, Figueroa relies on People v. Cogswell

(2010) 48 Cal.4th 467 (Cogswell) as an example of what constitutes due diligence. 

The witness who did not appear in Cogswell was the sexual assault victim of the 

charge for which defendant was on trial. She came to California from her 

Colorado home to testify at his preliminary hearing but refused to return for trial. 
16

The prosecution relied on the Uniform Act to Secure the Attendance of Witnesses 

from without the State in Criminal Cases to issue a subpoena, round trip airplane 

ticket, and a daily allowance, but it declined to ask that the witness be taken into 

custody and brought to California for the trial. The California Supreme Court 

reversed the Court of Appeal’s holding that by failing to have the witness taken 

into custody, the prosecution did not use reasonable diligence in obtaining her 

presence. (Id. at pp. 471, 479.) The Supreme Court reasoned that taking the 

witness into custody was a drastic measure that was unlikely to result in her 

becoming a cooperative witness. (Id. at pp. 477-479.)

The decision in Cogswell does not suggest that efforts less vigorous than 

those employed in that case cannot constitute due diligence. To the contrary, 

“‘[t]rial courts “do not have to take extreme actions before making a finding of 

unavailability.”’ [Citation.]” (Cogswell, supra, 48 Cal.4th at p. 479.)

The record here establishes that the prosecution exercised reasonable 

diligence in attempting to procure Kelley’s attendance at trial. Detective Nuttall 

maintained regular telephone contact with Kelley through several trial 

continuances and through Kelley’s moves from California to Florida and 

Michigan. He attempted to help Kelley improve his financial situation by helping 

him obtain a pink slip to sell his truck, and he offered to make travel arrangements 

to fly him out for trial. Detective Nuttall kept Kelley apprised of the trial dates and 

reminded him of his obligation to appear, and when he lost contact with Kelley, he 

went to his former address to speak with the landlord. Detective Nuttall’s 

testimony indicate that he exercised “‘“persevering application, untiring efforts in 

good earnest, [and] efforts of a substantial character”’” in attempting to obtain 

Kelley’s presence at trial. (Herrera, supra, 49 Cal.4th at p. 622.) 
17

The reasonableness of the prosecution’s efforts is supported by the 

circumstance that Kelley’s testimony was not of critical importance at trial. 

(People v. Fuiava (2012) 53 Cal.4th 622, 676.) Kelley’s testimony that he saw 

appellants beating Dunlap was supported by the testimony of both Uloth and Fry, 

who also were eyewitnesses to the attack on Dunlap. Figueroa contends that 

Kelley was the only witness who unequivocally stated that Figueroa used the 

crowbar to attack Dunlap, but that is incorrect. Fry testified that both appellants 

used the crowbar to strike Dunlap in the head. Kelley’s testimony accordingly was 

not critical to the prosecution’s case. 

Based on Detective Nuttall’s testimony, we conclude that the trial court 

correctly found that the prosecution exercised reasonable diligence in attempting to 

procure Kelley’s attendance at trial.

III. Jury Instruction on Voluntary Intoxication

Figueroa and Corzo both challenge the jury instruction on voluntary 

intoxication. The trial court instructed the jury pursuant to CALCRIM No. 625 as 

follows: “You may consider evidence, if any, of the defendant’s voluntary 

intoxication only in a limited way. You may consider that evidence only in 

deciding whether the defendant acted with an intent to kill, or the defendant acted 

with deliberation and premeditation. [¶] A person is voluntarily intoxicated if he 

or she becomes intoxicated by willingly using any intoxicating drug, drink, or 

other substance knowing that it could produce an intoxicating effect, or willingly 

assuming the risk of that effect. [¶] You may not consider evidence of voluntary 

intoxication for any other purpose.” 
18

Appellants contend that the instruction erroneously prevented the jury from 

considering evidence of their intoxication as it relates to a finding of express 

malice. They acknowledge that this contention was not raised in the trial court. 

“‘Generally, a party forfeits any challenge to a jury instruction that was 

correct in law and responsive to the evidence if the party fails to object in the trial 

court.’ [Citation.]” (People v. McPheeters (2013) 218 Cal.App.4th 124, 132.) 

However, where a defendant claims that “the instruction is not correct in law, and 

that it violated his federal constitutional rights, [the] claim need not be preserved 

by objection before an appellate court can address the issue.” (Ibid.) “Strong 

policy reasons support [the forfeiture] rule: ‘It is both unfair and inefficient to 

permit a claim of error on appeal that, if timely brought to the attention of the trial 

court, could have been easily corrected or avoided. [Citations.]’ [Citation.]” 

(People v. Stowell (2003) 31 Cal.4th 1107, 1114.)

Appellants contend that their claim is cognizable on appeal because the jury 

instruction affected their right to have the jury consider all the evidence related to 

their defenses. They do not, however, contend that the instruction was erroneous 

as a matter of law. Appellants therefore have forfeited their challenge to the jury 

instruction. (See People v. Saille (1991) 54 Cal.3d 1103, 1120 [trial court has no 

duty to instruct sua sponte on voluntary intoxication; duty is on defendant to 

request an instruction relating the evidence of his intoxication to an element of the 

crime, such as premeditation and deliberation].) Even if not forfeited, their claim 

is not meritorious.

“We review de novo whether a jury instruction correctly states the law. 

[Citations.] Our task is to determine whether the trial court ‘“fully and fairly 

instructed on the applicable law.” [Citation.]’ [Citation.]” (People v. Franco

(2009) 180 Cal.App.4th 713, 720 (Franco).) 
19

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

(§ 187, subd. (a).) First degree murder is a “willful, deliberate, and premeditated 

killing.” (§ 189.) “Second degree murder is defined as the unlawful killing of a 

human being with malice aforethought, but without the additional elements – i.e., 

willfulness, premeditation, and deliberation – that would support a conviction of 

first degree murder. [Citations.]” (People v. Nieto Benitez (1992) 4 Cal.4th 91, 

102.) “California law . . . recognizes three theories of second degree murder.” 

(People v. Swain (1996) 12 Cal.4th 593, 601.) These are unpremeditated murder 

with express malice, implied malice murder, and second degree felony murder. 

(Ibid.)

Malice aforethought “‘“is express when there is manifested a deliberate 

intention unlawfully to take away the life of a fellow creature. It is implied, when 

no considerable provocation appears, or when the circumstances attending the 

killing show an abandoned and malignant heart.” [Citation.] . . .’ [Citation.]” 

(People v. Sanchez (2013) 221 Cal.App.4th 1012, 1027-1028 (Sanchez).)

“Implied malice may be proven by circumstantial evidence and has both a 

physical and mental component. [Citation.] The physical component is satisfied 

by the performance of an act, the natural consequences of which are dangerous to 

life. [Citation.] The mental component is established where the defendant knows 

that his conduct endangers the life of another and acts with conscious disregard for 

life. [Citation.]” (People v. McNally (2015) 236 Cal.App.4th 1419, 1425 

(McNally).)

“Voluntary manslaughter is ‘the unlawful killing of a human being without 

malice’ ‘upon a sudden quarrel or heat of passion.’ (§ 192, subd. (a).) An 

unlawful killing is voluntary manslaughter only ‘if the killer’s reason was actually 

obscured as the result of a strong passion aroused by a “provocation” sufficient to 
20

cause an “‘ordinary [person] of average disposition . . . to act rashly or without due 

deliberation and reflection, and from this passion rather than from judgment.’” 

[Citations.]’ [Citation.] ‘The provocation must be such that an average, sober

person would be so inflamed that he or she would lose reason and judgment. 

Adequate provocation . . . must be affirmatively demonstrated.’ [Citation.]” 

(People v. Thomas (2012) 53 Cal.4th 771, 813, italics added (Thomas).)

Appellants contend that the jury was improperly precluded from considering 

evidence of their voluntary intoxication as to their theories of heat of passion and 

imperfect self-defense, thus precluding the jury from finding them guilty of 

voluntary manslaughter instead of second degree murder. They cite section 29.4, 

subdivision (b), which provides: “Evidence of voluntary intoxication is admissible 

solely on the issue of whether or not the defendant actually formed a required 

specific intent, or, when charged with murder, whether the defendant premeditated, 

deliberated, or harbored express malice aforethought.”

Appellants rely on People v. Cameron (1994) 30 Cal.App.4th 591, in which 

the defendant was charged with second degree murder with implied malice. (Id. at 

p. 599.) The appellate court held that the trial court erred in giving a voluntary 

intoxication instruction that implied that voluntary intoxication could not negate 

implied malice. (Id. at pp. 599-600.) Cameron does not help appellants for several 

reasons.

First, former section 22, the predecessor to section 29.4, was amended in 

1995, after the decision in Cameron. (People v. Turk (2008) 164 Cal.App.4th 

1361, 1374 (Turk).) As pertinent here, the amendment made voluntary 

intoxication inadmissible to negate implied malice where the defendant is charged 

with murder. (Id. at p. 1375.) Subsequent to this amendment, courts consistently

have held that “[v]oluntary intoxication does not negate implied malice.” 
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(McNally, supra, 236 Cal.App.4th at pp. 1431-1432; Turk, supra, 164 Cal.App.4th 

at p. 1375; People v. Timms (2007) 151 Cal.App.4th 1292, 1298; People v. Martin

(2000) 78 Cal.App.4th 1107, 1114-1115.) Cameron’s holding thus has been 

abrogated.

Second, evidence of voluntary intoxication is not relevant to the objective 

requirement of adequate provocation which reduces murder to voluntary 

manslaughter. (See People v. Lee (1999) 20 Cal.4th 47, 60 (Lee) [“The test of 

adequate provocation is an objective one.”].) Instead, “‘[t]he provocation must be 

such that an average, sober person would be so inflamed that he or she would lose 

reason and judgment. . . .’ [Citation.]” (Thomas, supra, 53 Cal.4th at p. 813, 

italics added.)

Third, even if the instruction did not explicitly state that evidence of 

voluntary intoxication may be considered in deciding whether the defendant acted 

with express malice, the jury was adequately instructed that it could do so. The 

trial court instructed the jury that “[t]he defendant acted with express malice if he 

unlawfully intended to kill.” The court further instructed the jury that it could 

consider evidence of voluntary intoxication in deciding whether the defendant 

acted with an intent to kill. “[T]he California Supreme Court has repeatedly stated 

that intent to kill and express malice are ‘in essence’ the same concept. 

[Citations.]” (Turk, supra, 164 Cal.App.4th at p. 1382.) Thus, the instructions 

“adequately informed the jury that it could consider evidence of [appellants’] 

voluntary intoxication on the issue of express malice.” (Id. at p. 1383.) The trial 

court therefore “‘“fully and fairly instructed on the applicable law.” [Citation.]’ 

[Citation.]” (Franco, supra, 180 Cal.App.4th at p. 720.) 

Finally, even if the instruction was erroneous, it is not reasonably probable 

appellants would have obtained a more favorable outcome absent the error. 
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(People v. Breverman (1998) 19 Cal.4th 142, 178.) There was considerable 

evidence that appellants acted with malice. In addition, there was scant evidence

either that appellants were so intoxicated as to negate the element of malice or that 

Dunlap “did or said anything sufficiently provocative that [his] conduct would 

cause an average person to react with deadly passion. Nor was there direct 

evidence that [appellants] acted under the influence of such passion.” (Lee, supra, 

20 Cal.4th at p. 59.)

According to the eyewitness testimony of Kelley, Uloth, and Fry, both 

appellants brutally kicked, punched, and attacked Dunlap with a crowbar in the 

head and chest, even after Dunlap had fallen to the ground and was trying to 

protect himself. Corzo testified that he hit Dunlap in the head 10 times with a 

heavy pipe, even after Dunlap was lying on the ground not moving. Corzo also 

told Officer Lopez that he was punching Dunlap and hitting him with a pipe, 

adding, “I hope I killed that black piece of shit.” Kicking, punching, and hitting 

someone in the head with a crowbar certainly are actions whose natural 

consequences are dangerous to life. (McNally, supra, 236 Cal.App.4th at p. 1425.) 

The undisputed testimony regarding appellants’ actions supports a finding that 

appellants acted with conscious disregard for life. (Ibid.)

There is little evidence that appellants were so intoxicated that they were 

unable to act with the implied malice required to sustain their convictions for 

second degree murder. (See McNally, supra, 236 Cal.App.4th at p. 1424.) Corzo 

argues that the evidence of his intoxication was undisputed, pointing out that every 

officer who contacted him smelled alcohol on his breath. However, Officer Lopez 

testified that, although he smelled alcohol on Corzo’s breath, Corzo “spoke clearly 

and he stood straight.” Officer Corona similarly testified that, although he smelled 

alcohol on Corzo’s breath, Corzo did not appear to be drunk or impaired. 
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Detective Nuttall testified that when he interviewed Figueroa, Figueroa appeared to 

have been drinking, but he was coherent. Estrada stated during her police 

interview that prior to the assault, Figueroa was not drunk and that she and Corzo 

were “barely even drinking.” 

Corzo cites his own testimony that he and Figueroa consumed two 18-packs 

of beer in 30 minutes and “some 40-ouncers.” But Corzo’s testimony is belied by 

his statement during his police interview that he had not drunk very much that day, 

stating, “I’m not that drunk. I can tell you straight up right now.”

Finally, there was very little evidence to support a claim of imperfect selfdefense. Contrary to the self-serving testimony of both appellants, Dunlap had no 

abrasions on his hands that would have indicated that he struck someone, and 

Corzo and Figueroa had no visible injuries, other than swelling on Corzo’s hands. 

Estrada told Detective Nuttall that Dunlap did not have any weapons. Even if 

Dunlap had instigated the fight, the testimony of Kelley, Uloth, and Fry was that 

appellants kicked, punched, and hit Dunlap with a crowbar repeatedly after Dunlap 

was disoriented and on the ground trying to protect himself. Accordingly, 

appellants did not suffer prejudice from any alleged instructional error.

IV. Ineffective Assistance of Counsel

Corzo contends that his trial counsel’s failure to challenge the voluntary 

intoxication jury instruction constituted ineffective assistance of counsel.

“The standard for showing ineffective assistance of counsel is well settled. 

‘In assessing claims of ineffective assistance of trial counsel, we consider whether 

counsel’s representation fell below an objective standard of reasonableness under 

prevailing professional norms and whether the defendant suffered prejudice to a

reasonable probability, that is, a probability sufficient to undermine confidence in 
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the outcome. [Citations.] A reviewing court will indulge in a presumption that 

counsel’s performance fell within the wide range of professional competence and 

that counsel’s actions and inactions can be explained as a matter of sound trial 

strategy. Defendant thus bears the burden of establishing constitutionally 

inadequate assistance of counsel. [Citations.] If the record on appeal sheds no 

light on why counsel acted or failed to act in the manner challenged, an appellate 

claim of ineffective assistance of counsel must be rejected unless counsel was 

asked for an explanation and failed to provide one, or there simply could be no 

satisfactory explanation. [Citation.] Otherwise, the claim is more appropriately 

raised in a petition for writ of habeas corpus.’ [Citation.]” (People v. Gray (2005) 

37 Cal.4th 168, 206-207.) “Further, ‘a court need not determine whether counsel’s 

performance was deficient before examining the prejudice suffered by the 

defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an 

ineffectiveness claim on the ground of lack of sufficient prejudice, which we 

expect will often be so, that course should be followed.’ [Citation.]” (People v. 

Carrasco (2014) 59 Cal.4th 924, 982.)

As discussed above, there was no error in the jury instruction. Moreover, as

we also discussed above, it is not reasonably probable that but for the alleged error, 

a more favorable determination would have resulted. Corzo thus has failed to 

show his counsel acted unreasonably and has failed to demonstrate prejudice.

V. Sufficiency of the Evidence to Support Corzo’s Conviction

Corzo contends the evidence is insufficient to support his conviction for 

second degree murder. We disagree.

“When the sufficiency of the evidence to support a conviction is challenged 

on appeal, we review the entire record in the light most favorable to the judgment 
25

to determine whether it contains evidence that is reasonable, credible, and of solid 

value from which a reasonable trier of fact could find the defendant guilty beyond 

a reasonable doubt. [Citation.] ‘Conflicts and even testimony which is subject to 

justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive 

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

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

Unless it describes facts or events that are physically impossible or inherently 

improbable, the testimony of a single witness is sufficient to support a conviction. 

[Citation.]” (People v. Elliott (2012) 53 Cal.4th 535, 585.)

Corzo contends that “the uncontroverted evidence” shows he killed Dunlap 

during a sudden quarrel or heat of passion, or under the unreasonable belief in the 

need to defend himself. We need not reiterate the evidence discussed above, which

showed that Corzo was not objectively provoked and that his brutal beating of 

Dunlap constituted a “conscious disregard for life. [Citation.]” (McNally, supra, 

236 Cal.App.4th at p. 1425.) In short, Corzo’s conviction for second degree 

murder is supported by substantial evidence.
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DISPOSITION

The judgments are affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

WILLHITE, J.

We concur:

EPSTEIN, P. J.

COLLINS, J.