Filed 8/31/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

NEIL EFREN DELRIO,

Defendant and Appellant.

 B298637

 (Los Angeles County

 Super. Ct. No. KA112231)

APPEAL from a judgment of the Superior Court of 

Los Angeles County, Bruce F. Marrs, Judge. Reversed.

Brad Kaiserman, under appointment by the Court of 

Appeal, for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Michael R. Johnsen, Supervising 

Deputy Attorney General, and Blythe J. Leskay, Deputy Attorney 

General, for Plaintiff and Respondent.

____________________
2

We reverse Neil DelRio’s murder conviction because the 

trial court erroneously excluded significant evidence of the 

victim’s violent character. Unmodified code citations are to the 

Evidence Code. 

I

We summarize a fatal shootout.

A

A two-man shootout left one unharmed and the other one 

dead. DelRio and his cousin Raul Prieto drew on each other in 

front of a house on a cul-de-sac. Prieto shot his nine-millimeter 

pistol 15 times but missed every time. DelRio fired his .40-

caliber pistol twice. Each bullet hit Prieto. Each was fatal. 

1

DelRio was the lone eyewitness at trial. We summarize his 

testimony.

Around 4:00 p.m. on December 21, 2015, DelRio gave his 

friend Dustin Beamon a loudspeaker. Prieto was there. The 

interaction was “normal” and “pleasant.” 

Around 7:00 p.m. that day, DelRio visited Beamon 

elsewhere: at Beamon’s rented side room, off the main house 

where the shooting occurred. DelRio went there to deliver some 

Wal-Mart items to Beamon. DelRio parked on the street and 

walked to the house. Beamon was with two others and there was 

some “drug use going on there.” DelRio did not see Prieto. 

DelRio was “[c]learheaded”; he did not drink or take drugs before 

or during his visit. He stayed for 10 or 15 minutes. 

DelRio carried his .40-caliber Glock pistol because he sold 

drugs and encountered dangerous people. He carried a gun only 

when he dealt drugs. He did not go to Beamon’s house to deal 

drugs, but planned “a transaction” after he left. 
3

DelRio knew his felony conviction made it illegal for him to 

possess the gun and ammunition. 

As DelRio walked back to his car, Prieto was walking 

towards the house. DelRio was in a hurry and the two did not 

shake hands or greet each other. Prieto “seemed kind of like 

upset, maybe bothered.” He spoke to DelRio aggressively, saying 

something like, “[Y]ou don’t have time just to say hi to me or 

anything like that?” or “[Y]ou think you’re too good or better than 

me and whatnot?” 

DelRio “told him he’s got it all wrong” and said “[i]t was 

nothing like that . . . .” DelRio was just “in a rush and in a hurry 

to leave.” 

Prieto accused DelRio of “acting like that with me lately 

and brushing me off and trying to, you know, not bother with me 

or deal with me . . . .” 

DelRio told Prieto if Prieto “chose to continue to do the 

things that he was doing, I didn’t want to have no part of it.” 

DelRio could not tell if Prieto was high. 

The conversation became hostile. 

Prieto drew a semiautomatic handgun, racked a round, and 

lifted the gun. He stepped towards DelRio. DelRio and Prieto 

were about 20 feet apart. DelRio was “in fear of [his] life” and 

acted on impulse. 

DelRio drew his own gun and fired once. Prieto fired once 

in return. DelRio ducked and heard the bullet “whiz by.” 

Prieto fell or crouched down. 

DelRio shot one more time as he was getting in his car. He 

heard gunshots, but no bullets hit his body. As he drove away, 

DelRio threw his gun on the floor of the car. Later he sold the 

gun to a friend. 
4

After the shooting, DelRio went for drinks with friends at a 

strip club. He kept quiet about what happened. He thought 

about turning himself in but “didn’t know how to go about it” and 

was “very scared.” 

2

Officers found 17 cartridge casings at the scene: two .40-

caliber casings and 15 nine-millimeter casings. The two .40-

caliber casings came from one gun. All 15 nine-millimeter 

casings came from another gun. The officers found two unfired 

nine-millimeter bullets in Prieto’s cargo shorts. 

Near the sidewalk and grass, the officers found “a bag of 

crystallized substance resembling methamphetamine,” a red hat 

with the letter “P” on it, a blue lighter, and “an orange cap of a 

syringe.” They found no guns. 

Two abdominal gunshots killed Prieto. The coroner found a 

.40-caliber bullet in Prieto’s body. Prieto had gunshot residue on 

both hands, which meant it was possible he had fired a gun. 

3

Six people heard the shooting. Their recollections 

conflicted: they agreed neither on the number of shots fired nor 

about whether a pause separated the shots into groups. 

Police found 17 used casings at the scene, suggesting the 

shooters fired a total of 17 shots. No earwitness reported 17 

shots. 

A woman at the scene told a deputy she heard six to 10 

gunshots. There was no evidence she mentioned any pauses.

Neighbor Regina Gonzales heard about five pops that 

sounded like fireworks. She did not mention any pauses.
5

Neighbor Robert Haas told a detective he heard about “five 

to six shots coming from outside his home.” There was no 

evidence he mentioned any pauses.

Neighbor Yesenia Reyes told a detective she heard nine to 

10 shots. There was no evidence she mentioned any pauses.

Neighbor Bea Mancillas told a detective she heard one to 

two shots, followed by nine to 10 shots. 

Neighbor Joe Mancillas heard two sets of gunshots around 

7:30 p.m. Mancillas gave different versions of what he heard. 

First Mancillas testified there were “[a]bout one or two, 

three shots” in the first set and “more than four, less than seven” 

shots in the second set. That is, Mancillas heard a total of 

between five and 10 shots in this version of events.

According to a police report, Mancillas gave a different 

account: he told deputies he heard one to two shots followed by a 

pause, then about 10 rapid-fire shots. In this version of events, 

Mancillas heard 11 or 12 shots.

After reviewing his past statements, Mancillas testified 

there were two shots in the first set. 

Mancillas was familiar with firearms. He owned guns and 

shot at a range. Based on his experience, the two sets of 

gunshots sounded like different calibers. The second set sounded 

louder than the first. 

B

A traffic stop took place two weeks after the shootout, on 

January 4, 2016. 

A deputy stopped DelRio driving on Valley Boulevard. The 

officer found a backpack on the front passenger seat with 20 to 40 

live .40-caliber rounds. Two expended shell casings were in a 

pocket on the driver’s side door. Two cell phones were on the 
6

passenger seat. A sunglass case contained unfired .40-caliber 

cartridges. The .40-caliber rounds in the car had similar 

markings to the .40-caliber casings at the shooting scene. 

The car had five bullet holes and two bullet impacts. 

Bullets had hit both sides and the rear. Officers found a fired 

nine-millimeter bullet inside the rear door on the driver’s side. A 

white skull sticker covered a bullet hole on the driver’s side and 

another sticker covered a bullet hole above the right rear wheel 

well. The rear license plate frame covered a bullet hole. The 

brand of the right front tire was different from the brand of the 

other tires. 

DelRio had picked up the car from a body shop three days 

before the shooting, on December 18, 2015. At that time, the car 

had no bullet holes and no license plate frame around the rear 

license plate. All four tires were the same brand. DelRio 

testified he changed the right front tire the day after the shooting 

because it “had a slow leak.” He also testified he concealed the 

car’s bullet holes with the license plate frame and the stickers 

because he was worried about explaining the bullet holes to his 

mother. 

The same gun fired the nine-millimeter bullet found in 

DelRio’s car and the nine-millimeter bullet found at the scene. 

DelRio testified both cell phones in the car were his. Data 

from one phone placed it near the scene at the time of the 

shootout. 

One phone contained photos of a Glock 22—a .40-caliber 

handgun—next to a loaded magazine. An outgoing text message 

accompanying one of the photos read, “Glock 22, you same Cal as 

urs.” An outgoing text message at 1:31 a.m. the morning after 

the shooting read, “My bad rude dog I’ll get with you in the 
7

morning okay some shit popped off.” Another text message read, 

in part, “[D]o you know anyone that has tires or hookups for 

some, I need a tire ASAP I’ve been on a mission, my shit’s 

showing wires.” One of the phones showed several internet 

searches for tires that would fit DelRio’s car. The searches were 

the night of and morning after the shooting. 

One phone showed an internet search two days after the 

shooting for “On-Scene Video dot TV Valinda Deadly Shooting.” 

A detective ran the same search on his computer and found a 

story about the shooting in this case. 

Officers arrested and questioned DelRio. At trial, DelRio 

admitted he lied to the officers when he told them he did not have 

a phone number, did not own the cell phones in the car, and did 

not put the stickers on the car. 

C

The jury convicted DelRio of second degree murder and 

found firearm enhancement allegations true under Penal Code 

section 12022.53, subdivisions (b), (c), and (d). The trial court 

denied defense counsel’s motion to strike or dismiss the 

enhancements under Penal Code section 12022.53, subdivision 

(h). The trial court sentenced DelRio to life with the possibility of 

parole, plus a consecutive 25 years to life for the firearm 

enhancement under Penal Code section 12022.53, subdivision (d). 

The court stayed the firearm enhancement sentences under 

Penal Code section 12022.53, subdivisions (b) and (c). 

II

DelRio argues the trial court erroneously excluded several 

pieces of evidence under section 1103, subdivision (a). He 

contends the trial court should have admitted each item of 
8

evidence to prove Prieto previously engaged in violence. He 

offered, and the trial court excluded, evidence of the following: 

● a shooting Prieto allegedly committed 10 days before 

the shooting in this case; 

● Prieto’s past domestic violence; 

● Prieto’s prior firearm possession convictions; 

● Prieto’s schizophrenia linked with violent outbursts; 

and 

● methamphetamine in Prieto’s blood the night of the 

shooting.

We focus on the evidence of Prieto’s past domestic violence. 

The trial court erroneously excluded this violent victim evidence. 

The error was prejudicial. First we describe the error. Then we 

weigh the harm.

A

It was error for the trial court to exclude evidence that 

victim Prieto had a character for violence. On appeal, the 

prosecution concedes the trial court’s reasoning was erroneous. 

The Attorney General attempts to supply an alternative rationale 

for the mistaken ruling, but this revisionist effort fails. 

1

We begin by reviewing the law. 

We review evidentiary rulings for abuses of discretion. 

(People v. Scott (2011) 52 Cal.4th 452, 491.) 

The general rule bars character or propensity evidence. (§ 

1101, subd. (a).) That is, evidence of people’s character is 

inadmissible when offered to prove their conduct on specified 

occasions. (Ibid.) Thus, usually the law prevents you from trying 

to prove X acted some way because X had a propensity to act that 

way. There is a fable about the frog and the scorpion. It stresses 
9

the scorpion will sting, no matter what, because that is in its 

nature. The character evidence rule bans that kind of evidence. 

This rule stops prosecutors, for instance, from introducing 

defendants’ rap sheets to suggest once a criminal, always a 

criminal.

The character evidence rule has a handful of exceptions. 

The pertinent one is the violent victim rule. (§ 1103, subd. (a)(1).) 

This rule allows a defendant like DelRio to try to prove the 

conduct of a victim like Prieto conformed to his character. 

Specifically, this exception allows what is usually forbidden: it 

permits DelRio to introduce evidence Prieto had a propensity for 

violent aggression. This evidence would aid DelRio’s effort to 

prove that, at the crime scene, Prieto was violently aggressive,

which forced DelRio to resort to deadly self-defense. (E.g., People 

v. Wright (1985) 39 Cal.3d 576, 587 (Wright).)

2 

DelRio offered to prove Prieto had a propensity for violent 

aggression with the following evidence. Police arrested Prieto for 

domestic violence in March 2012, April 2013, and June 2013. On 

March 3, 2012, a woman who lived with Prieto called 911 and 

told officers Prieto “was schizophrenic, not taking his medication, 

acting strangely and choked her, and furthermore had a firearm 

in their bedroom which scared her.” Prieto suffered convictions 

for the March 2012 and June 2013 incidents. 

At an in limine hearing, defense counsel invoked section 

1103 in an attempt to gain admission of evidence about the 

March 3, 2012 incident. Counsel specifically proposed offering 

the 911 call and her testimony at trial. He argued the evidence 

was “relevant in the context of a self defense as a prior violent 
10

act” showing Prieto’s “character for turbulence, provokeability, et 

cetera.” 

Defense counsel asked the trial court to admit other 

evidence under section 1103 as well, but stated the most 

probative incidents were the March 3, 2012 domestic violence 

incident and a shooting Prieto allegedly committed in 2015. 

DelRio also argued there was a proper basis for a self-defense 

jury instruction. Counsel observed, “[I]t seems like the Court 

may wish to reserve ruling to see if the defendant’s testimony will 

provide that substantial basis [for the self-defense instruction]. 

And if it does, then I believe that these prior acts are definitely 

admissible and definitely relevant.” The trial court deferred its 

ruling and noted the two incidents “might be relevant.” 

At trial, DelRio testified he did not know about Prieto’s 

domestic violence incidents. Defense counsel then offered to have 

the 911 caller testify about Prieto’s domestic violence, even if 

DelRio did not know about it, because it was “basically evidence 

of the victim’s character for violence which is relevant to who 

started the escalation towards deadly force.” Counsel argued “the 

jury is entitled to know that Mr. Prieto engaged in this type of 

force.” 

The prosecutor argued Prieto’s bad acts were irrelevant 

unless DelRio knew about them, and the court agreed. The court 

decided DelRio’s testimony was a basis for a self-defense 

instruction, but excluded evidence of Prieto’s bad acts because 

“[i]f he didn’t know about it, it did not enter into his decisionmaking process whatsoever and could not have influenced his 

analysis of what was happening in front of him.” 
11

3

The trial court’s analysis was incorrect by law. DelRio need 

not have known about Prieto’s past bad acts.

DelRio’s theory was Prieto’s violent character was 

circumstantial evidence of how Prieto acted at the scene. (E.g.,

People v. Castain (1981) 122 Cal.App.3d 138, 142 [evidence victim 

officer used excessive force on other occasions admissible as 

circumstantial evidence of officer’s conduct during incident in 

question] (Castain); Wright, supra, 39 Cal.3d at p. 587 [evidence 

of victim’s previous violent reaction admissible when defendant 

claimed self-defense in a homicide case]; Pitchess v. Superior 

Court (1974) 11 Cal.3d 531, 537 [deputies’ disciplinary records 

“unquestionably relevant and admissible” as character evidence

of deputies’ violent tendencies to support defendant’s self-defense 

theory]; Hinojosa v. Superior Court (1976) 55 Cal.App.3d 692, 696 

[evidence of bigotry or a proclivity for violence on the part of 

assault victims is admissible where conduct of victims in 

conformity with their character would tend to exculpate a 

defendant or mitigate the offense].) 

Whether DelRio knew of Prieto’s arrests for violence was 

not germane to this theory. “If this [violent] character was 

known to the defendant, the evidence tends to show the 

defendant’s apprehension of danger; if it was not known, the 

evidence nevertheless tends to show that the victim was probably 

the aggressor.” (1 Witkin, Cal. Evidence (5th ed. 2012) 

Circumstantial Evidence, § 59, p. 437. See also People v. 

Shoemaker (1982) 135 Cal.App.3d 442, 446–447 [where selfdefense is raised in a homicide prosecution, evidence of the 

victim’s violent character is admissible to show the victim was 
12

the aggressor]; People v. Rowland (1968) 262 Cal.App.2d 790, 

797–798 [same].)

California law accords with the national rule. (E.g., 

McCormick, Evidence (8th ed. 2020) Character of victim in cases 

of assault, murder, and rape, § 193 [“This line of proof and 

counterproof openly relies on the victim’s tendency to act in 

accordance with a general trait of character—a violent or a 

peaceful disposition. Consequently, it does not require proof that 

the defendant was aware of the victim’s violent reputation or 

acts.”].)

4

On appeal, the prosecution concedes the court’s reasoning 

was faulty. But the Attorney General argues the court properly 

could have excluded DelRio’s proposed evidence under section 

352. This argument fails. (See Castain, supra, 122 Cal.App.3d at 

pp. 142–144.)

Section 352 gives the trial court discretion to exclude 

evidence if its probative value is substantially outweighed by the 

probability its admission will necessitate undue consumption of 

time or create substantial danger of undue prejudice, of confusing 

the issues, or of misleading the jury. 

The Attorney General hypothesizes that, had the court 

admitted DelRio’s evidence about Prieto’s violence, the prosecutor 

merely would have countered with evidence about DelRio’s own 

bad acts, thus negating evidence of Prieto’s violent past. The 

suggestion is admission would have only wasted time.

This argument is misplaced for two reasons. 

a

First, this argument underestimates the potential value of 

DelRio’s evidence in this factual context. The probative value of 
13

the evidence was high because this factual context is one of 

uncertainty. 

We are uncertain what happened at the scene. We have a 

gun fight with no independent witnesses and with no motive for a 

murder. We know both men had loaded guns, both men fired at 

each other, and DelRio killed Prieto. We know DelRio’s version, 

but a person on trial for murder has a motive to fabricate.

Who drew first? That question is key. If Prieto was first 

with his hand on a gun, the prosecution would have a hard time 

disproving DelRio’s defense of self-defense, for a man with a gun 

in hand can be an instant and deadly threat. 

The crucial factual question for the jury thus was whether 

Prieto was the aggressor. The trial court instructed the jury on 

justifiable homicide in self-defense. Evidence tending to show 

Prieto by nature was violently aggressive would have been 

directly on point. The probative value of this evidence potentially 

was great. Concerns about efficient time management must ebb 

when evidence directly can advance the search for decisive truth.

b

Second, it would have been an abuse of discretion to 

exclude this evidence under section 352. The prosecution did not 

object under section 352. Had the prosecution objected on that 

basis, the court would have had to engage in balancing to address 

concerns about undue prejudice or confusing the issues. 

Excluding the domestic violence evidence after engaging in 

a section 352 analysis would have been an abuse of discretion. 

When a trial court does balance, we review its decisionmaking 

with deference: the trial judge is in the cockpit, with a clearer 

view of the whole situation and a better ability to apply practical 

and timely wisdom. (People v. Clark (2016) 63 Cal.4th 522, 572.) 
14

When a proffer contains some proof of high value mixed with 

other less vital material, it is traditional and proper under 

section 352 for a trial court to tailor the presentation in a 

discretionary way. It would have been an abuse of discretion, 

however, simply to exclude everything.

B

Under any standard of review, this error was not harmless 

in this close case. The only eyewitness testified to classic selfdefense: DelRio shot after Prieto aggressively racked and aimed 

a semiautomatic at DelRio. DelRio’s testimony was self-serving 

but fit all physical evidence. The witnesses who heard shots were 

nearly useless, for none knew whether Prieto or DelRio first 

raised a gun. No evidence suggested DelRio had a motive to 

shoot his cousin. DelRio did show consciousness of guilt, but his 

testimony portrayed him as a dealer in illegal drugs, as a 

convicted felon who knew he could not legally carry a gun, and as 

one scared of the law—and his mother’s judgment should she 

learn the truth. DelRio had reasons besides murder to feel guilt. 

This error was not harmless. (See Castain, supra, 122 

Cal.App.3d at p. 144.)

We reverse DelRio’s conviction without reaching other 

issues. 
15

DISPOSITION

The judgment is reversed and remanded for further 

proceedings.

WILEY, J.

We concur: 

GRIMES, Acting P. J. 

STRATTON, J.