Filed 1/22/15 P. v. Zapata CA2/1 

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

SECOND APPELLATE DISTRICT 

DIVISION ONE 

THE PEOPLE, 

 Plaintiff and Respondent, 

 v. 

JOSE ZAPATA, 

 Defendant and Appellant. 

 B253025 

 (Los Ángeles County 

 Super. Ct. No. VA113297) 

APPEAL from a judgment of the Superior Court of Los Angeles County, Raul A. 

Sahagun, Judge. Affirmed as modified. 

Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

 Kamala D. Harris, Attorney General, Lance E. Winters, Senior Assistant Attorney 

General, Victoria B. Wilson, Supervising Deputy Attorney General, and Erika D. Jackson, 

Deputy Attorney General, for Plaintiff and Respondent. 

—————————— 
2

 Defendant Jose Zapata appeals from convictions for murder and attempted murder. 

He contends the evidence was insufficient to support the jury’s true findings as to carjacking, 

or that the crimes were committed for the benefit of a criminal street gang. Zapata also 

contends the court prejudicially erred in refusing to instruct the jury that the prosecution’s 

key witness was an accomplice, and as to self-defense. Finally, Zapata contends he is 

entitled to additional presentence custody credits. We conclude that Zapata’s final 

contention has merit, and the abstract of judgment must be modified to reflect additional 

credits. None of Zapata’s other contentions has merit and, as to those, we affirm. 

PROCEDURAL BACKGROUND 

 By Information, Zapata was charged with one count of first degree murder (Pen. 

Code,1 § 187, subd. (a); count 1) and one count of attempted willful, deliberate and 

premeditated murder (§§ 664, 187, subd. (a); count 2).2

 Special circumstances were alleged as to count 1, i.e., that the murder was committed 

while Zapata was engaged in the commission of a robbery and carjacking in violation of 

sections 211, 212.5, and 215, and that both offenses fell within the meaning of section 190.2, 

subdivision (a)(17). As to count 1, a further special circumstance was alleged that Zapata 

intentionally killed the victim while an active participant in a criminal street gang and the 

murder was carried out to further the gang’s activities pursuant to section 190.2, 

subdivision (a)(22). As to both Counts, the Information alleged that a principal personally 

discharged and used a firearm (handgun) within the meaning of section 12022.53, 

subdivisions (b), (c), (d), (e), and (e)(1), and that Zapata committed the underlying offense 

for the benefit of a criminal street gang within the meaning of section 186.22, 

subdivision (b)(1)(C). Also as to both counts 1 and 2, the Information alleged that Zapata 

personally discharged a firearm within the meaning of section 12022.53, subdivisions (b), 

 

1 All further statutory references are to the Penal Code unless otherwise indicated. 

2 Both counts were also alleged against Zapata’s codefendant Erick Rodriguez, who 

was ultimately acquitted. 
3

(c), and (d), and that he committed the underlying offenses for the benefit of a criminal street 

gang, within the meaning of section 186.22, subdivision (b)(1)(C). 

 A jury found Zapata guilty as charged and found true special circumstance, firearm 

and gang allegations. Zapata was sentenced to an aggregate prison term of 90 years to life, 

awarded presentence credits and ordered to pay various fees and fines. 

FACTUAL BACKGROUND 

Prosecution evidence 

Events leading up to and after the crimes 

 On December 6 or 7, 2009,3 Julio Cesar Serrano received a call from Zapata’s 

brother, “Little Risky.” Little Risky, whom Serrano knew was a gang member, asked 

Serrano if he knew anyone who wanted to buy a gun. Serrano spoke to his friend Kevin 

Gonzalez, who lived in San Francisco and wanted to buy a gun, and acted as a middleman 

between Gonzalez and Little Risky for the gun sale. On the evening of December 7, Serrano 

was with “Little Risky” and “Little Boy” (who was Zapata’s codefendant Rodriguez),4 when 

he received a call from Gonzalez who wanted to see the gun. Before leaving to meet 

Gonzalez, Serrano spent about 30 minutes in an apartment with Rodriguez and Zapata. 

Sometime after midnight (December 8), Serrano walked to meet Gonzalez at a store. 

Gonzalez was in his black BMW in the parking lot when Serrano arrived. 

 Serrano and Gonzalez drove to a house where “Little Risky,” Zapata and Rodriguez 

were located, and Gonzalez unloaded some luggage. Driving in the BMW, Serrano and 

Gonzalez followed Zapata and Rodriguez, who drove a Lexus, to some railroad tracks on 

Los Nietos Road. Everyone got out of the cars at the railroad tracks. Zapata pulled a gun 

 

3 Unless otherwise stated, all additional date references are to 2009. 

4 At trial, Serrano testified that he at first mistakenly identified Rodriguez as 

“Clever,” and Zapata as “Little Boy.” Serrano later testified that his identifications were 

mistaken; he had the two names switched. Zapata is “Clever,” and Rodriguez is “Little 

Boy.” Our factual recitation identifies Zapata and Rodriguez to reflect Serrano’s 

corrected identifications. 
4

from his waistband and showed it to Gonzalez. He described that gun as “light weight,” and 

said they were waiting for “Big Homey” to bring another one. Gonzalez and Serrano each 

handled the gun, which Serrano described as a .38 or .357 caliber semi-automatic, for 30 

seconds before Gonzalez returned it to Zapata. 

 At that point a helicopter flew near. Zapata said they had to go elsewhere because it 

was “getting hot.” Everyone got into the BMW, with Zapata and Rodriguez in the back seat, 

directing Gonzalez to drive to different railroad tracks in an industrial area nearby. They 

parked near a house and walked toward the tracks. Serrano noticed a lot of Los Nietos gang 

graffiti. The group talked for about 15 minutes, until Zapata told Serrano to check to see 

whether Big Homey was coming. After Serrano returned saying he saw no one, Zapata sent 

Rodriguez to see if Big Homey was coming while the others waited silently for his return. 

 When Rodriguez returned, Zapata stood in front of Serrano and Gonzalez, pulled out 

a gun, pointed it at them and told them to get on their knees. They did so. Zapata demanded 

the car keys, their cell phones and money. Gonzalez gave Rodriguez the car keys, and both 

men gave him their phones, money and wallets. Zapata asked if they had any last words. 

Gonzalez asked if he could call his mother or girlfriend to tell them he loved them and would 

not see them again. He was not allowed to make a call. Rodriguez told Zapata to “shoot him 

in the head.” Zapata shot Gonzalez about five times. He fell face first. There were no raised 

voices or arguments before the shooting, and no one issued any threat. Everything seemed 

normal to Serrano. At some point before the shooting, Zapata said, “This is Los Nietos. 

What the fuck are you doing here?” At trial, Serrano said this was true, but admitted he 

falsely told the police that Rodriguez and Zapata had stood behind him and Gonzalez. 

 When Zapata shot Gonzalez, Serrano got up and ran. He was shot in his right arm 

and left foot as he ran, and fell. He lay on the ground until he heard Zapata and Rodriguez 

run away toward the parked BMW, then went into a nearby business to get someone to call 

911. Police and paramedics arrived and Serrano was taken to the hospital. 
5

 On December 8 Serrano identified Zapata as the shooter in a six-pack lineup. He also 

identified Zapata as the shooter at trial. From another six-pack lineup, Serrano identified 

Rodriguez as someone involved in the shooting.5

 At the preliminary hearing, Serrano testified that at the scene of the shooting, 

Rodriguez told Serrano he had Rodriguez’s name “fucked up from the beginning” and his 

name was not Little Boy, but “Spitty” or “Speedy.” At some point Serrano told police 

Rodriguez had carried a shotgun. At the preliminary hearing Serrano admitted this was not 

true and he told this story because he was angry that Zapata shot at him and killed his friend. 

Serrano had also told the police Zapata and Rodriguez had worn gloves, and that there had 

been a large duffle bag on the back seat of the BMW which Zapata had suggested be moved 

to make room for him and Rodriguez.6 At the preliminary hearing, Serrano testified that 

Gonzalez had just acquired a shotgun in San Diego, which was in the BMW’s trunk. 

 During questioning by police at the hospital, Serrano claimed he had been carjacked 

in front of his mother’s house and forced to drive to the railroad tracks, and did not recognize 

the suspects. He told police he was approached by two male Hispanics. Serrano had seen 

Zapata in the neighborhood and talked to him before the shooting. Zapata had a tattoo on his 

arm that said “L.N.,” and another “L.N.” tattoo on the back of his head. Serrano had seen but 

had never spoke to Rodriguez before the evening of the shooting. Rodriguez showed 

Serrano a tattoo on his chest that said “Los Nietos, TMS” at the railroad tracks the night of 

 

5 On one six-pack, Serrano circled photograph number 3 and wrote: “Clever, he is 

the shooter.” When shown this photograph at trial, Serrano admitted the photograph was 

of Zapata, not Rodriguez. Serrano admitted that, throughout his earlier trial testimony he 

had mistakenly identified Rodriguez as “Clever,” but Zapata was actually “Clever.” 

After changing his testimony, Serrano claimed that, as he ran away, he turned and saw 

Zapata point and fire the gun at Gonzalez. From a different six-pack photo lineup, 

Serrano had identified the person in photograph number 5 as “Little Boy,” an individual 

involved in the shooting. At trial, Serrano admitted he misidentified Zapata as “Little 

Boy” in his prior testimony; Rodriguez is “Little Boy.” 

6 At trial, the parties stipulated that, notwithstanding his testimony at the preliminary 

hearing, Serrano never told the police Zapata and Rodriguez had worn gloves or that there 

was any duffle bag in the BMW’s back seat. 
6

the shooting. Previously, Serrano said Rodriguez’s tattoo was on his back, and said “Los 

Nietos Malos.” At the preliminary hearing and at trial, Serrano testified that Rodriguez’s 

chest bore a “Los Nietos” tattoo. Serrano’s family received up to $6,000 in relocation 

assistance. Serrano had received about $300 himself for relocation expenses at the time of 

the preliminary hearing. Serrano has a tattoo that says “Sinaloa” to signify Sinaloa, Mexico, 

which is where his family is from. He testified he is not a gang member, does not associate 

with gang members and does not belong to a crew or cartel. Serrano, 23 years old at the time 

of trial, admitted having been convicted of a felony at age 14. 

 Officer Raymond Laffler was on patrol on December 8, and arrived at the industrial 

area on Dice Road in Santa Fe Springs around 12:22 a.m. Behind one business he found 

several employees and Serrano, who had been shot in an arm and a foot. Serrano was 

worried about a friend who had been with him. Officer Laffler found Gonzalez, who had 

also been shot, off the property nearby. 

 When Officer Guan Gorena arrived at the railroad tracks between Dice Road and 

Norwalk Boulevard at about 12:20 a.m., he saw a body which he described as on its knees, 

crouched in a fetal position, face down and leaning forward. He turned the body over and 

there was no response. He saw blood on the right hand, a hole in the sweatshirt and blood on 

the upper left chest. Forensics Specialist Chris Kraft was responsible for forensic 

photography, crime scene investigation, searching the scene for potential evidence, and 

documenting all recovered evidence, including Gonzalez’s body. He found the body lying 

face up near a building, found four nine millimeter casings within a 20-foot radius of the 

body, saw numerous footprints and took photos of the business and surrounding area. 

A medical examiner from the Coroner’s office conducted an autopsy on Gonzalez 

who had two gunshot wounds, one in left upper chest and the other in his front left thigh. 

The cause of death was multiple gunshot wounds, the fatal shot being one to the chest that 

perforated Gonzalez’s heart and caused a large amount of blood loss. Gonzalez had gunshot 

residue on his hands. Such residue can result from discharging a gun or if one’s hands are in 

the vicinity of a firearm being fired. Based on the position of Gonzalez’s body, the medical 
7

examiner opined that Gonzalez had likely been standing when shot and bent forward to cover 

himself. 

Apprehension of Zapata 

On December 9, Officer Wolfe located the Lexus in which Zapata and Rodriguez had 

driven in a parking lot at the school Zapata attended. The officer saw the same car at 

Zapata’s home on Francisquito in West Covina about 1:00 a.m. to 2:00 a.m. From the 

school, Officer Wolfe followed Zapata as he drove off in the Lexus, but lost sight of him 

after he pulled into the parking lot of an apartment complex on Glenoak Avenue and got out 

of the car. Officer Wolfe later saw Zapata return to the Lexus with another male, and they 

drove to the home on Francisquito. No one entered or exited the house and Zapata left again. 

The officer followed Zapata through several cities before Zapata got onto the freeway at 

which point, believing his surveillance had been compromised, he requested a traffic stop. 

Recovery of evidence 

The Lexus was taken to a police tow yard and searched by forensics specialist Kraft. 

He recovered a blue steel nine millimeter compact Walter P1 from between the driver’s seat 

cushion and seat assembly. He also found 12-gauge rounds in the trunk, but no 

accompanying weapon. Stereo equipment (a stereo, two speaker subwoofer boxes and a 

Bazooka amplifier) found in the trunk was incompatible with the Lexus’s sound system. 

Serrano identified the Lexus as the car Zapata and Rodriguez had driven, and identified the 

stereo equipment found in the Lexus as having been in Gonzalez’s BMW. Gonzalez’s 

BMW was recovered a few days after the shooting from a location 1.8 miles from Zapata’s 

home. Both cars were subjected to forensic examinations. A search of the BMW’s trunk by 

Officer Kraft yielded an installation manual for a Bazooka amplifier, and revealed cut power 

cables and speaker wires. Officer Kraft was able to connect the stereo equipment recovered 

from the Lexus to wires in the BMW. 

Forensic specialists swabbed various parts of the BMW and the nine-millimeter 

handgun for DNA evidence. A criminalist examined several items of evidence from the 

BMW and the gun found in the Lexus for DNA using reference samples from Zapata, 

Rodriguez, Serrano and Gonzalez. A partial DNA profile taken from swabs of the gun 
8

showed Zapata was a possible contributor but excluded the other three. A partial DNA 

sample from the BMW’s steering wheel showed Gonzalez as a possible contributor and 

excluded the others. Partial DNA profiles taken from swabs of the interior driver side door 

and interior left rear door handles included a mixture of two contributors, among which only 

Gonzalez was included. A sample from the interior right passenger side door handle 

included a mixture of two contributors, of which Zapata was one and the other three were 

excluded. A sample from the interior right passenger side door was a mixture of two 

contributors, among whom only Gonzalez was a possible contributor. A firearms expert 

testified that he received and examined four expended cartridges, a fired bullet and a ninemillimeter firearm. The barrel of the pistol had been cut down, but the gun worked fine. He 

test fired the gun and, based on his testing, examination and analysis, the firearms expert 

determined that all the recovered ammunition came from the nine-millimeter gun. 

Officers executed a search warrant at Zapata’s residence on December 9. A 

notebook bearing Zapata’s name was found near papers containing lyrics about killing 

people and two photographs. One photo was of two members of the Los Nietos gang and the 

other was of Zapata’s deceased brother, who had belonged to Los Nietos. 

Gang evidence 

Officer John Draper testified as a gang expert. He was assigned to the Problem 

Oriented Policing team and assisted investigations on gang- and narcotics-related cases in 

Santa Fe Springs. He had previously worked patrol during which he had contacted gang 

members and conducted follow-up investigations. Officer Draper received gang training 

while at the academy, as well as additional formal training. He has encountered gang 

members on the street and in custody, and asks them about their gang affiliation, monikers 

and criminal history. Some gang members are reluctant to talk, others are not. 

Officer Draper is familiar with the Los Nietos gang, its territory, signs, symbols, 

monikers and some of its tagging and criminal acts. The primary criminal activities of the 

Los Nietos gang include murder, assault with a deadly weapon, robbery and the sale of 

illegal drugs. Officer Draper has personally had contact with approximately 15 members of 

the Los Nietos gang, which has about 130 members total. He has also spoken with his 
9

superiors and community members about problems with the Los Nietos gang. The gang’s 

hand symbols form an “L” and an “N,” and its tattoos and graffiti Officer Draper has seen are 

“LN,” “Los Nietos” or “GC” (for “grandchildren,” the English translation of los nietos). The 

gang claims the territory bordered by Los Nietos Road, Washington Boulevard, Westman 

and Pioneer Boulevard. Gonzalez was shot in Los Nietos territory. 

Zapata has a tattoo of “LN” on the back of his head and on his hand, and has a 

“Southeast LN” tattoo. Zapata’s forearm bears a tattoo reading “RIP Risky.” Zapata’s 

brother Jesus, who’s gang moniker was “Risky,” was killed in 2008. Officer Draper does not 

know and has not had personal contact with Zapata or Rodriguez. He was asked to 

investigate Zapata’s possible gang affiliation. As part of his investigation he spoke to other 

officers who had had contact with Zapata, reviewed Zapata’s field identification cards, 

booking photos and photos of Zapata’s tattoos, and Zapata’s criminal history. Officers from 

West Covina and Pico Rivera informed Officer Draper that Zapata claimed to be a member 

of Los Nietos, and his moniker was “Goofy.” 

 Officer Draper also spoke to other officers about Rodriguez’s gang affiliation, and 

reviewed his field identification cards, booking photos and criminal history. He learned 

Rodriguez also claimed membership in Los Nietos and his moniker had been “Lonely,” or 

“Chacho,” before he became known as “Little Boy.” Rodriguez has Los Nietos tattoos on 

his back, chest and abdomen. Based on his investigation, Officer Draper opined that Zapata 

and Rodriguez were members of the Los Nietos gang. 

 Members of the Los Nietos gang were convicted of a violation of Health and Safety 

Code section 11378 committed in 2005 and of attempted robbery committed in 2007. 

 Officer Draper was shown a photograph of graffiti on the wall of the building where 

the shooting took place. The graffiti said “LNR” with the “R” crossed out, which signaled 

disrespect of a Los Nietos rival gang, “Canta Ranas.” 

 In response to a hypothetical posed by the prosecution based on its version of events, 

Officer Draper opined that when two members of the Los Nietos gang took two victims’ 

property and shot both victims, wounding one and killing the other, the crime was committed 

for the benefit of the Los Nietos criminal street gang. The two gang members were at the 
10

same location before the gun transaction, worked together to commit the crimes, acted as 

lookouts for “Big Homey,” and left the scene together. The shootings took place on Los 

Nietos’s turf, which showed the gang’s power and authority. The crime boosted the two 

individuals’ reputation as well as that of the Los Nietos gang, and would cause rival gangs 

and the community to fear Los Nietos. Locals would be afraid to report the gang’s crimes, 

which in turn allowed the gang freely to commit more crimes. The gang could maintain its 

territory and conduct its “business” without fear of interference. 

 Officer Draper testified that Gonzalez had “Joker” tattooed on his abdomen. With 

such a tattoo, combined with the fact that he had a shotgun in his vehicle, wanted to buy a 

.45-caliber gun and had marijuana in his system, Officer Draper believed there was a 60 to 

80 percent chance Gonzalez was a gang member or associate, but needed more information 

before he could conclude that was true. Officer Draper believed that someone with a 

“Sinaloa” tattoo (Serrano), who was in a vehicle with a shotgun and participated in the 

purchase of a weapon, could be associated with a gang, but needed more information before 

he could draw that conclusion. 

Defense case 

Zapata did not present any affirmative evidence in his defense. 

DISCUSSION 

1. Sufficient evidence supports the carjacking conviction 

 Zapata contends the evidence is insufficient to sustain his conviction for carjacking 

because it failed to show he took the BMW from Gonzalez’s immediate presence. We 

disagree. 

“Generally, in reviewing a claim based on the sufficiency of the evidence, the 

appellate court views the record in the light most favorable to the verdict below to 

determine whether it discloses 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. [Citation.] All conflicts in the evidence and questions of credibility are resolved 

in favor of the verdict, and every reasonable inference the jury could draw from the 

evidence is indulged. [Citation.]” (People v. Coleman (2007) 146 Cal.App.4th 1363, 
11

1367.) Reversal “is unwarranted unless it appears ‘that upon no hypothesis whatever is 

there sufficient substantial evidence to support [the conviction].’ [Citation.]” (People v. 

Bolin (1998) 18 Cal.4th 297, 331.) 

Zapata contends that the evidence failed to show that the BMW was within 

Gonzalez’s immediate presence as he was a significant distance away (one or two 

minutes’ walk), could not see the car from his location, and could not exercise physical 

control over it from that distance when Zapata accosted him and took the keys. He is 

wrong. 

 “‘Carjacking’ is the felonious taking of a motor vehicle in the possession of 

another, from his or her person or immediate presence, . . . against his or her will and 

with the intent to either permanently or temporarily deprive the person in possession of 

the motor vehicle of his or her possession, accomplished by means of force or fear.” 

(§ 215, subd. (a).) The elements of the offense are: (1) “[a] person had possession of a 

motor vehicle”; (2) “the motor vehicle was taken from his or her person or immediate 

presence”; (3) “[t]he motor vehicle was taken against the will of the person in 

possession”; (4) “[t]he taking was accomplished by means of force or fear”; and 

(5) “[t]he person taking the vehicle had the intent to either permanently or temporarily 

deprive the person in possession of the vehicle of that possession.” (CALJIC No. 9.46 

(2014 ed.); CALCRIM No. 1650.) 

 The carjacking statute was modeled on the robbery statute, and the term 

“immediate presence” has been given the same expansive reading under both statutes. 

(People v. Medina (1995) 39 Cal.App.4th 643, 650 (Medina).) Under the robbery statute, 

“[t]he generally accepted definition of immediate presence . . . is that ‘“[a] thing is in the 

[immediate] presence of a person, . . . which is so within his reach, inspection, 

observation or control, that he could, if not overcome by violence or prevented by fear, 

retain his possession of it.”’ [Citations.]” (People v. Hayes (1990) 52 Cal.3d 577, 626–

627; § 211.) Similarly, a vehicle is within a person’s immediate presence for purposes of 

carjacking if it is sufficiently within his control so that he could retain possession of it if 
12

not prevented from doing so by force or fear. (Medina, at p. 648; § 215, subd. (a); 

CALCRIM No. 1650.) 

 In Medina, supra, 39 Cal.App.4th 643, defendant’s accomplice lured the victim 

into a motel room where the defendant and accomplices bound the victim and took his 

car keys and car. The defendant challenged his conviction for carjacking, arguing that 

“actual physical proximity of the victim to the vehicle is required.” (Id. at p. 649.) The 

court rejected the defendant’s argument, explaining that the “only reason [the victim] was 

not in the car when it was taken . . . , was because he had been lured away from it by trick 

or device.” (Id. at pp. 651–652.) There is no requirement that the victim be in or 

touching the vehicle when it is taken. (Id. at p. 650.) 

Relying on the interpretation articulated in People v. Hayes, supra, 52 Cal.3d 577 

and Medina, supra, 39 Cal.App.4th 643, courts have also found the victim need not be 

within eyesight of the stolen property to satisfy the immediate presence element. In 

People v. Webster (1991) 54 Cal.3d 411, the California Supreme Court found the 

immediate presence element satisfied even though the victim was lured a quarter mile 

away from his car before he was killed and robbed of his car. (Id. at pp. 440–441.) 

There, the court found that notwithstanding the distance, the victim’s “relative proximity 

to the car would have allowed him to take effective physical steps to retain control of the 

vehicle, and to prevent defendant and his companions from stealing it.” (Ibid.) In People 

v. Harris (1994) 9 Cal.4th 407, the court found the immediate presence element satisfied 

even though the victim remained guarded in his car while items were taken from his 

office 35 feet away and his house, which was around the corner. (Id. at pp. 419–423.) 

In People v. Hoard (2002) 103 Cal.App.4th 599, 602, defendant entered a jewelry 

store and ordered two employees to give him the keys to the jewelry cases and to the car 

belonging to one of the employees. The employees complied and were then directed into 

a back room and bound. (Ibid.) Defendant took jewelry from the cases and the 

employee’s car. (Ibid.) Relying on Medina, supra, 39 Cal.App.4th 643, the court stated 

the victim need not be physically present in the vehicle when the confrontation occurs. 

The court affirmed defendant’s carjacking conviction by explaining: “Although [the 
13

employee] was not physically present in the parking lot when [defendant] drove the car 

away, she had been forced to relinquish her car keys. Otherwise, she could have kept 

possession and control of the keys and her car.” (Hoard, at p. 609.) 

Zapata places heavy but misplaced reliance on People v. Coleman, supra, 146 

Cal.App.4th 1363. In Coleman, a shop owner drove his truck to work in the morning, put 

the truck keys in a rear work area and drove away in a work vehicle. After the owner 

left, the defendant entered the shop, pointed a gun at the office manager and demanded 

the keys to the truck. (Id. at p. 1366.) The office manager went into the back of the shop, 

got the keys and gave them to the defendant. (Ibid.) The defendant was convicted of 

robbery and carjacking. (Id. at p. 1365.) The carjacking conviction was reversed. (Id. at 

p. 1374.) The court “acknowledge[d] that a carjacking may occur where neither the 

possessor nor the passenger is inside or adjacent to the vehicle,” but said the 

circumstances there were “simply too far removed from the type of conduct that [the 

carjacking statute] was designed to address.” (Id. at p. 1373.) The court reasoned that 

the office manager “was not within any physical proximity to the [truck], the keys she 

relinquished were not her own and there was no evidence that she had ever been or would 

be a driver of or passenger in the [truck].” (Ibid.) The Coleman decision turned on the 

element of whether the office manager had possession, not the issue of immediate 

presence. (Id. at pp. 1371–1373.) Because the manager had never had responsibility for 

the truck, the appellate court refused to imply a rule of constructive possession into the 

carjacking statute. (Id. at pp. 1371–1372.) 

 More recently, in People v. Gomez (2011) 192 Cal.App.4th 609, the victim was 

assaulted on the grounds of his apartment complex away from the parking area; the 

assailants beat him and either took his keys or found them on the ground during the 

attack, and then drove off in their own car. The assailants returned 10 or 20 minutes 

later, after the victim had fled into his apartment and watched the assailants try to enter 

the apartment. After failing to gain entry, the assailants went to the victim’s truck parked 

about 10 feet from the apartment, used the key and drove away. (Id. at pp. 613–615.) 

The defendant argued there was insufficient evidence he took the car from the victim’s 
14

immediate presence. (Id. at p. 618.) Relying on Medina, supra, 39 Cal.App.4th 643, the 

court found that the immediate presence requirement was easily met, despite the location 

of the victim in his apartment 10 feet away. (Gomez, at p. 624.) The court held that the 

jury could reasonably find that the victim’s fear of further assault prevented him from 

acting to retain possession of his truck. (Ibid.) 

 We conclude that substantial evidence established that Gonzalez’s car was 

sufficiently within his reach or control, such that the jury could reasonably find that he 

could have retained possession of it had Zapata not kept him from doing so by force or 

fear. The car was nearby and could be reached by a short walk; the keys were on 

Gonzalez’s person; Zapata confronted him and forced him to relinquish the keys at 

gunpoint, then used the keys to take Gonzalez’s car after he shot him. But for Zapata’s 

use of force, it was not unreasonable for the jury to conclude the BMW was within 

Gonzalez’s reach or control, such that he could have retained possession of it had he not 

been overcome by violence or prevented by fear from doing so. The immediate presence 

element was thus satisfied. (Cf. Gomez, supra, 192 Cal.App.4th at p. 624.) 

2. Sufficient evidence supports the finding on the gang enhancement 

Zapata contends that, apart from an expert’s opinion that the crimes were 

committed by two members of the Los Nietos gang acting together to benefit the gang, 

there is insufficient evidence to support the jury’s true finding that the murder was 

committed for the benefit of a criminal street gang under section 186.22, subdivision 

(b)(1)(C). He insists that by virtue of its acquittal of Rodriguez on all charges the jury 

necessarily found that Rodriguez “was not the alleged gang member with [Zapata],” a 

finding disproving the prosecution’s theory that the crimes were committed for the 

benefit of the gang, and which “torpedoed the foundation” of the expert’s opinion. We 

disagree. 

 Section 186.22 provides for a sentence enhancement where a felony is “committed 

for the benefit of, at the direction of, or in association with any criminal street gang, with 

the specific intent to promote, further, or assist in any criminal conduct by gang 

members. . . .” (§ 186.22, subd. (b)(1); People v. Gardeley (1996) 14 Cal.4th 605, 623.) 
15

Collateral effects of a crime, including increased respect or fear of the gang and revenge, 

have all been found to constitute a “benefit” to the gang. (See Gardeley, at p. 619; 

People v. Olguin (1994) 31 Cal.App.4th 1355, 1384.) Although a specific intent to 

promote, further, or assist in criminal conduct by gang members is required, there need 

not be a specific intent to benefit the gang. (People v. Morales (2003) 112 Cal.App.4th 

1176, 1198 (Morales).) 

We review a challenge to a true finding on a gang enhancement for sufficiency of 

evidence. (People v. Albillar (2010) 51 Cal.4th 47, 59–60; People v. Vy (2004) 122 

Cal.App.4th 1209, 1224 [appellate court reviews sufficiency of the evidence to support 

true finding on enhancement under same standard as for a conviction].) 

 Gang allegations may be proven by expert testimony. (People v. Gardeley, supra, 

14 Cal.4th at pp. 617–620; People v. Hernandez (2004) 33 Cal.4th 1040, 1047–1048.) 

An expert’s opinion that particular criminal conduct benefited a gang by enhancing its 

reputation for violence can be sufficient to raise the inference that the conduct was 

“committed for the benefit of . . . a[] criminal street gang” within the meaning of section 

186.22, subdivision (b)(1). (People v. Vazquez (2009) 178 Cal.App.4th 347, 353.) 

 Although not every crime committed by a gang member is gang related, a crime 

may satisfy the first prong of section 186.22, subdivision (b)(1) if it is committed in 

association with or for the benefit of his or her gang. (People v. Albillar, supra, 51 

Cal.4th at p. 60; Morales, supra, 112 Cal.App.4th at pp. 1197–1198.) “Commission of a 

crime in concert with known gang members is substantial evidence which supports the 

inference that the defendant acted with the specific intent to promote, further or assist 

gang members in the commission of the crime.” (People v. Villalobos (2006) 145 

Cal.App.4th 310, 322.) The crucial element, however, requires that the crime be 

committed for the benefit of, at the direction of, or in association with a gang. The fact 

that a defendant committed the charged crime in association with one or more fellow 

gang members is substantial evidence of the requisite “association” element. (Morales, at 

p. 1198.) 
16

 Officer Draper was asked to assume the critical facts of this case. He was then 

asked whether, in his opinion, such hypothetical crimes were committed for the benefit of 

or in association with the Los Nietos criminal street gang. Officer Draper testified that 

they “absolutely” were. He had knowledge of the Los Nietos gang, its graffiti and 

criminal activities, which included robbery, murder and narcotics sales, and had 

researched Zapata’s and Rodriguez’s memberships in Los Nietos, an affiliation each 

previously admitted. Officer Draper explained that the crimes involved two gang 

members acting in association with one another. The two gang members met at an 

apartment complex in Los Nietos territory, traveled together to the site of the transaction, 

worked together and left the crime scene together. These facts, combined with evidence 

that the shooting occurred on Los Nietos turf with the gang’s insignia prominently 

displayed near where the shooting occurred, demonstrated the gang members’ “power 

and authority.” The crime benefited the gang by increasing its power in the area, and 

enabled it to carry on its criminal “business” without fear its crimes would be reported. 

 The foregoing testimony constitutes sufficient evidence from which the jury could 

find the gang enhancement true beyond a reasonable doubt. It shows how murdering 

Gonzalez—murder being one of the gang’s primary activities—benefited the gang. The 

expert’s testimony is bolstered by the fact that Los Nietos graffiti was displayed nearby 

(evidence the crimes occurred in the gang’s territory), and testimony that Zapata said, 

“this is Los Nietos,” before shooting. 

 Zapata argues that the jury could not have relied on evidence that he committed a 

crime in association with another gang member because, by acquitting Rodriguez “of all 

charges, including the special circumstance and enhancement allegations,” the jury 

necessarily “concluded Rodriguez was not the other Los Nietos gang member.” Absent 

evidence of the involvement of some other member of the Los Nietos gang, Zapata 

asserts “there was no competent evidence two Los Nietos gang members acted together.” 

(Boldface omitted.) This logical leap is unjustified. That the jury voted to acquit 

Rodriguez does not show that it necessarily found he was not a member of the Los Nietos 

gang. The record reflects that the jury appropriately made no further findings as to 
17

Rodriguez once it concluded he was not guilty of murder or attempted murder. The 

jury’s conclusion that the prosecution failed to prove beyond a reasonable doubt that 

Rodriguez committed the charged offenses does not show that the jury necessarily 

believed he was not a member of Los Nietos gang; it simply never addressed that 

question. Viewing the evidence in the light most favorable to the judgment, it is quite 

conceivable the jury believed Rodriguez was a member of Los Nietos but did not commit 

the charged crimes. 

Morales, supra, 112 Cal.App.4th 1176 is instructive. In that case, the defendant 

and two fellow gang members committed a robbery and other offenses. Based upon a 

hypothetical question, the gang expert testified the crimes were committed for the benefit 

of, at the direction of, or in association with a criminal street gang because “they involved 

three gang members acting in association with each other. The gang provided ‘a readymade manpower pool . . . .’ That is, one gang member would choose to commit a crime 

in association with other gang members because he could count on their loyalty. They 

would ‘watch his back . . . .’” “The crime would benefit the individual gang members 

with notoriety among the gang, and the gang with notoriety among rival gang members 

and the general public.” (Id. at p. 1197.) Morales rejected the defendant’s argument that 

there was insufficient evidence that he committed the offenses to benefit his gang, and 

instead noted the gang expert’s focus was on “a crime committed, not just by a gang 

member, but by several gang members, acting in association with each other. Also, [the 

expert] did not testify that such a crime necessarily would benefit the gang, merely that it 

would be committed either for the benefit of, or at the direction of, or in association with 

the gang.” (Ibid.) 

 In People v. Martinez (2008) 158 Cal.App.4th 1324, the defendant argued that the 

evidence was insufficient to support the gang finding because, among other things, it was 

not established that he or his gang cohort identified themselves as gang members while 

committing the charged robbery. Rejecting this assertion, the Martinez court noted that 

the gang tattoos of the two perpetrators were “clearly visible.” Although the victim and a 

witness had “identified defendant as participating in the robbery immediately after it 
18

occurred, at trial neither could remember whom he had identified. This raises a 

reasonable inference they were too afraid to do so at trial based on defendant's gang 

status . . . .” (Id. at p. 1333.) 

 As in Morales, supra, 112 Cal.App.4th 117 and People v. Martinez, supra, 158 

Cal.App.4th 1324, the record reflects that the victims had reason to know Zapata and 

Rodriguez’s gang status. They announced themselves as Los Nietos gang members, each 

had visible “LN” tattoos and the crimes were committed in Los Nietos’s area, clearly 

marked by graffiti. Zapata, an admitted Los Nietos associate or member, committed 

murder and attempted murder while acting together with Rodriguez, another admitted 

gang member. Based on a hypothetical mirroring the evidence presented at trial, 

Officer Draper testified the crimes were committed for the benefit of and in association 

with Los Nietos, because they involved at least one gang member and an associate 

working together. Further, the crimes benefitted Zapata by elevating his notoriety within 

Los Nietos, and benefited Los Nietos by increasing its notoriety locally. 

 To the extent Zapata contends there was insufficient evidence of specific intent, 

we reiterate specific intent to benefit the gang is not required. There need be only “the 

‘specific intent to promote, further, or assist in any criminal conduct by gang 

members . . . .’” (Morales, supra, 112 Cal.App.4th at p. 1198.) If “substantial evidence 

establishes that the defendant intended to and did commit the charged felony with known 

members of a gang, the jury may fairly infer that the defendant had the specific intent to 

promote, further, or assist criminal conduct by those gang members.” (People v. Albillar,

supra, 51 Cal.4th at p. 68.) Here, there was evidence Zapata intended to commit the 

crimes in association with Rodriguez, whom he knew to be a member of Los Nietos. 

Thus, the jury could reasonably infer that Zapata had the specific intent to “to promote, 

further, or assist in any criminal conduct by gang members . . . .” (§ 186.22, 

subd. (b)(1).) 

 We are similarly unpersuaded by Zapata’s argument that an expert opinion must 

be supplemented with evidence demonstrating the crime was committed to benefit a 

gang. As the California Supreme Court recently held: “‘Expert opinion that particular 
19

criminal conduct benefited a gang’ is not only permissible but can be sufficient to support 

the . . . section 186.22, subdivision (b)(1), gang enhancement. [Citation.]” (People v. 

Vang (2011) 52 Cal.4th 1038, 1048.) The evidence adduced at trial was sufficient to 

support the jury’s true finding on the gang enhancement. 

3. No accomplice instruction was required 

 Zapata contends the trial court prejudicially erred by failing to instruct the jury 

that the prosecution’s key witness Serrano was an accomplice whose testimony requires 

corroboration and should be viewed with distrust. (CALCRIM Nos. 334, 335.) We 

conclude the evidence does not support a finding that Serrano was an accomplice and any 

error in failing to give accomplice instructions would have been harmless. 

 A defendant may not be convicted upon uncorroborated testimony of an 

accomplice. (§ 1111.) An accomplice is “one who is liable to prosecution for the 

identical offense charged against the defendant on trial in the cause in which the 

testimony of the accomplice is given.” (§ 1111.) An accomplice acts “‘with knowledge 

of the criminal purpose of the perpetrator and with an intent or purpose either of 

committing, or of encouraging or facilitating commission of, the offense. [Citations.]’” 

(People v. Stankewitz (1990) 51 Cal.3d 72, 90–91; People v. Beeman (1984) 35 Cal.3d 

547, 561.) 

 The trial court has a sua sponte obligation to instruct on these points if there is 

sufficient evidence that a witness is an accomplice. (People v. Tobias (2001) 25 Cal.4th 

327, 331.) Two pattern instructions govern accomplice testimony, CALCRIM Nos. 334 

and 335. An instruction modeled after CALCRIM No. 334 is appropriate when there is a 

dispute in the evidence regarding whether a witness is, in fact, an accomplice; an 

instruction modeled after CALCRIM No. 335 should be used if the evidence is 

undisputed or unequivocally demonstrates a witness is an accomplice as a matter of law. 

(People v. Verlinde (2002) 100 Cal.App.4th 1146, 1159, 1161.) The former instruction 

permits the jury to determine whether a witness is an accomplice and, accordingly, 

whether his or her testimony required corroboration and should be viewed with suspicion. 

The latter instruction removes the issue from the jurors’ consideration, and dictates that 
20

they consider the witness’s testimony as that of an accomplice. It was Zapata’s burden to 

establish by a preponderance of the evidence that Serrano was an accomplice. (People v. 

Snyder (2003) 112 Cal.App.4th 1200, 1219.) 

a. The court was not required to give CALCRIM No. 335 

 Zapata contends that Serrano was an accomplice as a matter of law because he 

aided and abetted an illegal sale of a firearm between gang members7 in an isolated 

location on one gang’s turf, and the crimes of robbery, murder and attempted murder are 

reasonably foreseeable consequences of that offense under the natural and probable 

consequences doctrine. 

“The natural and probable consequences doctrine is based on the recognition that 

those who aid and abet should be responsible for the harm they have naturally, probably, 

and foreseeably put in motion.” (People v. Avila (2006) 38 Cal.4th 491, 567.) 

Accordingly, one “who knowingly aids and abets criminal conduct is guilty of not only 

the intended crime [target offense] but also of any other crime the perpetrator actually 

commits [nontarget offense] that is a natural and probable consequence of the intended 

crime.” (People v. Mendoza (1998) 18 Cal.4th 1114, 1133; People v. Prettyman (1996) 

14 Cal.4th 248, 260–262.) The question is “not whether the aider and abettor actually

foresaw the additional crime, but whether, judged objectively, it was reasonably

foreseeable.” (Mendoza, at p. 1133; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 

106–107.) To find a defendant guilty of a nontarget crime as “an accomplice under the 

‘natural and probable consequences’ doctrine, the jury must find that, with knowledge of 

the perpetrator’s unlawful purpose, and with the intent of committing, encouraging, or 

facilitating the commission of the target crime, the defendant aided, promoted, 

 

7 There is a dispute whether Gonzalez or Serrano were gang members. The only 

indication they may have been was their respective tattoos, and evidence Gonzalez got a 

shotgun in San Diego. Officer Draper believed there was a 60 to 80 percent chance 

Gonzalez was a gang member, and that it was likely Serrano was as well. However, 

Officer Draper lacked sufficient information to render a definitive opinion. 
21

encouraged, or instigated the commission of the target crime. The jury must also find 

that the defendant’s confederate committed an offense other than the target crime, and 

that the nontarget offense perpetrated by the confederate was a ‘natural and probable 

consequence’ of the target crime that the defendant assisted or encouraged.” (Prettyman,

at p. 254; see CALCRIM Nos. 402, 403.) 

Zapata argues that, because Serrano knowingly facilitated or participated in, and 

could have been charged with, an illegal firearm sale between gang members, he was an 

aider and abettor to the natural and probable consequences of that crime, that is, robbery, 

murder and attempted murder. Because it follows that a natural and probable 

consequence of an illegal gun sale between gang members is robbery and murder, Zapata 

argues that Serrano could have been charged with special circumstance murder. Serrano 

arranged for the illegal gun sale, got the parties together, accompanied the buyer to the 

sale in an isolated area of Los Nietos’s territory and acted as a lookout. Zapata maintains 

there is overwhelming evidence establishing that Serrano was guilty of directly 

participating in the illegal sale of firearms, or at the very least aiding and abetting that 

crime; therefore, he was subject to prosecution for murder under the natural and probable 

consequences doctrine. (See, e.g., People v. Medina (2009) 46 Cal.4th 913 [finding 

sufficient evidence that the nontarget offenses of murder and attempted murder were a 

natural and probable consequence of the target offense of simple assault, which 

defendants aided and abetted]; People v. Olguin, supra, 31 Cal.App.4th at p. 1376 

[defendant’s punching of victim during gang confrontation foreseeably led to fatal 

shooting of victim by fellow gang member]; People v. Ayala (2010) 181 Cal.App.4th 

1440, 1450 [fatal shooting was a natural and probable consequence of assault with a 

deadly weapon].) These cases support the proposition that a jury’s finding of a factual 

nexus between gang-related violence and murder would be sustained on appeal against an 

insufficiency of the evidence claim. They do not support the proposition that a person 

who has some connection to a gang-related gun sale that led to robbery and murder must, 

for purposes of jury instructions, necessarily be deemed an accomplice. 
22

Here, a reasonable juror could find Serrano participated in or intended to assist 

Zapata and Gonzalez in an illegal firearm sale. A reasonable juror could also conclude 

that robbery would ensue from a gun transaction between gang members because that 

crime was a natural and probable consequence of such a transaction. The problem with 

Zapata’s argument is that a reasonable juror was not required to draw such a conclusion 

because the evidence was not clear and undisputed. Because it was the jury’s task to 

decide what Serrano intended or did, if anything, regarding the initial illegal transaction, 

and whether robbery, murder and attempted murder were natural and probable 

consequences of that crime, the trial court correctly chose not to instruct the jury that 

Serrano was an accomplice as a matter of law. 

b. The court was not required to give CALCRIM No. 334 

There is a dispute as to whether Serrano participated in the transaction or merely 

accompanied his friend after putting Gonzalez in touch with Zapata and Rodriguez. It is 

well settled that neither mere presence at the scene of the crime which does not itself 

assist the commission of the crime, nor knowledge that a crime is being committed and 

failure to prevent it, amount to aiding and abetting. (See CALJIC No. 3.01.) Evidence 

showing that a person was present at the scene of a crime, drove a defendant to the scene 

of a crime, or observed the crime being committed, cannot by itself constitute sufficient 

evidence to establish that the person was an accomplice. (People v. Sully (1991) 53 

Cal.3d 1195, 1228.) Nor does evidence showing that a person had knowledge of an 

impending crime necessarily make the person an accomplice. (People v. Lewis (2001) 26 

Cal.4th 334, 369.) An accomplice for purposes of giving an accomplice testimony 

instruction means the person was a co-principal or an aider and abettor—one who 

“actually knows and shares the full extent of the perpetrator’s specific criminal intent, 

and actively promotes, encourages or assists the perpetrator with the intent and purpose 

of advancing the perpetrator’s successful commission of the target offense.” (People v. 

Snyder, supra, 112 Cal.App.4th at p. 1220.) 

The only evidence connecting Serrano to a crime is his testimony that he put 

Gonzalez in contact with Zapata and Rodriguez to buy a gun, and accompanied his friend 
23

to the sale. Serrano was a victim of robbery and attempted murder himself, and ran away 

when Zapata began shooting. The evidence definitively establishes nothing more than 

Serrano’s presence and is not sufficient to support an inference that he aided and abetted. 

The evidence points to the conclusion that it was at least disputed whether Serrano was 

an accomplice. The very existence of this dispute implies Serrano could also not be an 

accomplice. 

 If there is substantial evidence from which the jury could find that a witness is an 

accomplice to the crime charged, the court must instruct the jury on accomplice 

testimony. (People v. Verlinde, supra, 100 Cal.App.4th at pp. 1157–1159.) Substantial 

evidence is not any evidence, no matter how weak, but “evidence sufficient to ‘deserve 

consideration by the jury.’” (People v. Williams (1992) 4 Cal.4th 354, 361; People v. 

Lewis, supra, 26 Cal.4th at p. 369.) The evidence on which Zapata relies to support his 

argument that accomplice instructions were in order was not substantial but speculative. 

Serrano was undeniably at the scene, had knowledge of the planned transaction and 

received relocation expenses. These facts, without more, mean only that he was an 

eyewitness. (See People v. Stankewitz, supra, 51 Cal.3d at p. 90.) Nothing in the record 

reasonably supports a conclusion that Serrano was an accomplice to the crimes of which 

Zapata was convicted, or that he played a part in robbery, carjacking, murder or 

attempted murder. Thus, the evidence is insufficient that Serrano aided and abetted 

Zapata in his crimes. 

c. Any error was harmless 

 Even if the trial court erred by failing to give accomplice instructions, we would 

find the error harmless. At trial, Serrano’s testimony was repeatedly inconsistent and at 

odds with statements he made before trial and his previous testimony. The jury knew 

Serrano reversed the identities of Zapata and Rodriguez and heard inconsistencies in his 

identification of Rodriguez. The jury also heard inconsistencies in Serrano’s description 

of the shooting, heard about his criminal history and knew he received relocation funds. 

The jury was instructed that in considering Serrano’s credibility it was to take into 

account any prior consistent or inconsistent statements, and that it was free to disbelieve 
24

anything he said if it found he had deliberately lied about something significant. 

(CALCRIM Nos. 226 [credibility], 302 [evaluating conflicting evidence], 316 [felony 

conviction].) We presume the jury followed these instructions. (People v. Carter (2005) 

36 Cal.4th 1114, 1176–1177. Further, in closing argument, Zapata’s counsel repeatedly 

emphasized credibility issues with Serrano’s testimony, and his role in facilitating and 

participating in the gun sale. Our review of the record reveals it is not reasonably 

probable Zapata would have received a more favorable verdict on the charges had 

accomplice instructions been given. (See People v. Box (2000) 23 Cal.4th 1153, 1209; 

People v. Watson (1956) 46 Cal.2d 818, 836.) 

 Further, “[a] court’s failure to instruct on accomplice liability . . . is harmless if 

there is sufficient corroborating evidence in the record.” (Lewis, supra, 26 Cal.4th at 

p. 370; People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 303.) “Corroborating 

evidence is sufficient if it tends to implicate the defendant and thus relates to some act or 

fact that is an element of the crime.” (People v. Avila, supra, 38 Cal.4th at p. 562.) 

Corroborating evidence may be slight. The evidence “is sufficient if it tends to connect 

the defendant with the crime in such a way as to satisfy the jury that the accomplice is 

telling the truth.” (Gonzales, at p. 303.) Serrano’s testimony was sufficiently 

corroborated. He testified that Zapata shot Gonzalez. A partial DNA profile taken from 

swabs of the gun used to kill Gonzalez showed that Zapata alone among the four people 

present at the scene of the shooting was a possible contributor. The police also recovered 

stereo equipment from Zapata’s car, which Serrano identified as having been in 

Gonzalez’s car and which the police were able to reconnect to cut cables in Gonzalez’s 

car. The evidence is sufficient to corroborate Serrano’s testimony and connects Zapata to 

the crimes. (People v. Williams (2008) 43 Cal.4th 584, 636.) Any error was harmless. 

4. Self-defense instruction 

 Zapata contends the trial court erred when it refused his request to instruct the jury 

on self-defense. We disagree. 
25

 a. Relevant proceedings 

Before Zapata was advised of his right not to testify, his attorney asked the court 

to instruct the jury on self-defense. Defense counsel based his request on “the totality of 

the circumstances,” evidence suggesting both victims were members or affiliates of gangs 

who had access to or were buying firearms, and forensic inconsistencies of the crime 

scene. The trial court denied the request, stating: 

“No, I’m not inclined to give any self-defense instruction. I don’t think there’s 

any evidence to support that. Even if we assumed that the victims were gang members, 

even if we were to assume that the surviving victim was a Sinaloa drug cartel member, 

there is no evidence that they did anything, any aggressive act toward the 

defendants. . . . So, no, I would not be inclined to give self-defense instructions.” 

After an in chambers discussion regarding the instructions, defense counsel 

renewed his request. He argued the jury should have a chance to consider the issue of 

self-defense taking all circumstances in the case into account, including the forensic 

evidence, the shotgun in Gonzalez’s car, evidence that both victims had gang ties and 

were buying a firearm, inconsistencies in Serrano’s story and testimony and gunshot 

residue found on Gonzalez’s hands. 

The trial court again disagreed, finding no evidence to support an instruction on 

self-defense or imperfect self-defense. The court observed that any firearm Serrano or 

Gonzalez had access to had been left in Gonzalez’s car parked some distance away, and 

there was “no evidence that there was any quarrel, any aggressive act by either 

[Gonzalez] or . . . Serrano.” 

b. Governing law 

The doctrine of self-defense applies if one actually and reasonably believes in the 

need to defend oneself from imminent danger of death or great bodily injury. (People v. 

Randle (2005) 35 Cal.4th 987, 994, disapproved on another ground by People v. Chun 

(2009) 45 Cal.4th 1172, 1201.) A homicide is justifiable if the actor possessed both an 

actual and reasonable belief in the need to defend. (People v. Barton (1995) 12 Cal.4th 

186, 199–200.) 
26

The trial court must instruct on issues presented by the evidence, including selfdefense, if substantial evidence supports the defense. (People v. Salas (2006) 37 Cal.4th 

967, 982; People v. Michaels (2002) 28 Cal.4th 486, 529.) In making this determination, 

the trial court must determine whether there is “evidence which, if believed by the jury, 

[is] sufficient to raise a reasonable doubt.” (People v. Jones (2003) 112 Cal.App.4th 341, 

351.) Any doubt as “‘“‘to the sufficiency of the evidence to warrant instructions should 

be resolved in favor of the accused.’”’” (People v. Larsen (2012) 205 Cal.App.4th 810, 

824.) But a jury instruction need not be given simply because some evidence is 

presented, no matter how weak. There is no need to instruct on a theory “‘the jury could 

not reasonably find to exist.’” (People v. Strozier (1993) 20 Cal.App.4th 55, 63; see 

People v. Marshall (1997) 15 Cal.4th 1, 40.) 

c. No Instruction on self-defense was required 

Zapata maintains there was evidence from which the jury could have found he 

acted in self-defense. Specifically: (1) there was gunshot residue on Gonzalez’s hands 

and expert testimony that he may have shot a gun or had his hands exposed to gunshot 

residue; (2) Serrano’s testimony regarding the number of shots he heard and that 

Gonzalez was shot while on his knees was at odds with forensic evidence that only four 

casings were found, and there were no abrasions on Gonzalez’s face and hands; and 

(3) that circumstances of the gun transaction and tattoos on Serrano and Gonzalez 

indicated one or both men had gang affiliations. Serrano also testified that nothing 

unusual happened before he and Gonzalez arrived at the location of the shooting, there 

were no threats or arguments, and neither he nor Gonzalez had a weapon, made an 

aggressive move or tried to attack. Zapata fails to explain how any of this constitutes 

evidence that either victim acted in a way to cause him to fear he would be killed or 

suffer great bodily injury. No evidence was presented from which the jury could 

reasonably conclude Zapata shot Gonzalez because he actually and reasonably believed 

he was in imminent danger. Absent such evidence, no self-defense instruction was in 

order. (People v. Oropeza (2007) 151 Cal.App.4th 73, 82.) The trial court properly 

refused Zapata’s request for an instruction on self-defense. 
27

5. Additional custody credits are due 

Zapata argues the trial court miscalculated and he is entitled to additional credit 

for time spent in custody while the current charges were pending. (§ 2900.5.) 

A defendant sentenced to state prison is entitled to credit against the term of 

imprisonment for all days spent in custody prior to sentencing. (People v. Johnson

(2002) 28 Cal.4th 1050, 1053.) The trial court must calculate “the exact number of days 

the defendant has been in custody ‘prior to sentencing.’” (People v. Buckhalter (2001) 26 

Cal.4th 20, 30.) The record reflects that Zapata was in custody from December 9, 2009, 

when he was arrested, until sentencing on December 3, 2013. This was a total of 1,456 

days. At sentencing, Zapata was awarded 1,442 days of custody credit. He maintains he 

was entitled to 24 additional custody credits (for 1,466 days). 

Although Zapata did not raise the issue of the issue of calculation of credits in the 

trial court, the Attorney General concedes that Zapata is entitled to additional credit, but 

argues only an additional 14 days of credit are due under section 2900.5. We accept the 

concession and the Attorney General’s calculation. 
28

DISPOSITION 

The judgment is modified to reflect that Jose Zapata is entitled to an additional 14 

days of presentence custody credits. As so modified, the judgment is affirmed. The trial 

court is directed to amend the abstract of judgment to reflect this modification and to 

forward a copy of the amended abstract to the Department of Corrections and 

Rehabilitation. 

 NOT TO BE PUBLISHED. 

 JOHNSON, J. 

We concur: 

 CHANEY, Acting P. J. 

 BENDIX, J.*

 

* Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant 

to article VI, section 6 of the California Constitution.