THE PEOPLE, Plaintiff and Respondent, v. VICTOR DE LA ROSA, Defendant and Appellant.
C098721 (Super. Ct. No. 20FE010109)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Sacramento)
Filed 5/2/25
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered рublished for purposes of rule 8.1115.
Defendant Victor De La Rosa appeals following his conviction for murder with an enhancement for use of a firearm. He raises two general arguments.
First, he challenges three standard jury instructions—CALCRIM Nos. 522, 570, and 571—that the trial court used in this case. These instructions collectively state that a killing thаt would otherwise be murder is reduced to manslaughter when a person kills in a sudden quarrel, in a heat of passion, or in imperfect self-defense. CALCRIM Nos. 570 and 571 add that the prosecution has the burden to disprove these mitigating
Second, De La Rosa contends the trial сourt misunderstood its discretion to modify his firearm enhancement. The jury found true an alleged firearm enhancement under
We agree this case should be remanded for resentencing, as do the People. But we reject De La Rosa’s challenge to the jury instructions.
BACKGROUND
De La Rosa shot Roy Jimmerson to death in early 2020. According to De La Rosa, he approached Jimmerson after noticing Jimmerson attempting to break into a neighbor’s car. De La Rosa told him to stop. De La Rosa carried a handgun at the time but kept it in his pocket. After an exchange of words, Jimmerson moved toward De La Rosa and the two began shoving and punching each оther.
Following charges, a jury found De La Rosa guilty of second degree murder. (
Before sentencing, De La Rosa asked the trial court to strike the firearm enhancement—which, if left in place, would require the court to impose an additional and consecutive term of 25 years to life (
De La Rosa timely appealed in June 2023. His opening brief was filed in August 2024, and this case became fully briefed on February 24, 2025.
I
Jury Instructions
De La Rosa first challenges three standard jury instructions that the trial court used in this case—CALCRIM Nos. 522, 570, and 571, which all concern murder and manslaughter. He argues that all three instructions misstatе the law. We disagree.
Before addressing the merits, we consider the People’s assertion that De La Rosa forfeited his argument because he failed to raise it at trial. Case law explains that some, but not all, challenges to jury instructions are forfeited if not brought to the trial court’s attention. A claim, for example, that the trial court should have clarified an instruction is forfeited if raised untimely. (People v. Sattiewhite (2014) 59 Cal.4th 446, 475.) But a claim that the trial court gave an incorrect instruction on the law is not. (Ibid.) In this case, De La Rosa argues that his claim falls into the latter category and so is not forfeited. But binding precedent cuts against him. Our Supreme Court in People v. Parker (2022) 13 Cal.5th 1, most notably, found a nearly identical challenge to a heat of passion instruction forfeited for failure to object at trial. (Id. at p. 71 [finding forfeited a claim that the instruction altered the burden of proof].) Still, even if De La Rosa’s claim is forfeited, we will consider it nonetheless in light of his alternative claim of ineffective assistance of counsel.
Turning to the merits, we start with some background principles on murder and manslaughter. “Murder is the unlawful killing of a human being, or a fetus, with malice aforethought.” (
Heat of passion and imperfect self-defense are often at issue in murder cases. In those cases, the prosecution must disprove thesе mitigating circumstances to sustain a murder conviction. (Schuller, supra, 15 Cal.5th at p. 253.) That is because both heat of passion and imperfect self-defense negate an element of murder—namely, the element of malice aforethought (id. at p. 254)—and under due process principles, the prosecution has the burden to disprove mitigating circumstances (and defenses) that negate an element of the charged offense (id. at pp. 253, 259). Defendants, on the other hand, generally have the burden to prove defenses that ” ‘excuse[] conduct that would otherwise be punishable,’ but ‘do[] not controvert any of the elements of the offense itself.’ ” (Smith v. United States (2013) 568 U.S. 106, 110; see People v. Neidinger (2006) 40 Cal.4th 67, 72 [“it is constitutionally permissible to plаce on the defendant the burden of proving affirmative defenses by a preponderance of the evidence, as long as the defendant is not required to negate an element of the offense“].)
The jury instructions challenged here discuss these concepts. CALCRIM No. 522 states, among other things, that provocatiоn “may reduce a murder to manslaughter.” Similarly, CALCRIM Nos. 570 and 571 explain this principle in the context of heat of passion and imperfect self-defense, respectively. They state that “[a] killing that would otherwise be murder is reduced to voluntary manslaughter” if (1) the defendant killed someone because of a sudden quarrel or in the hеat of passion (CALCRIM No. 570) or (2) the defendant killed someone based on imperfect self-defense (CALCRIM No. 571). They then describe the circumstances that establish heat of passion (CALCRIM No. 570) and imperfect self-defense (CALCRIM No. 571). And they explain that the prosecution
De La Rosa maintains that all three instructions misstate the law, largely focusing on the word “reduce.” In his view, the instructions should not say that murder is reduced to manslaughter if the defendant killed someone because of one of thesе mitigating circumstances; they should instead say that manslaughter is increased to murder if the defendant did not kill someone because of one of these mitigating circumstances. Nor, in his view, should the instructions describe the circumstances that establish heat of passion and imperfect self-defense; he should instead, he suggests, describe the circumstances that do not establish hеat of passion and imperfect self-defense. As currently phrased, De La Rosa maintains, these instructions improperly “set second degree murder as the default, and place[] the burden squarely on the defense to shift the needle downward.”
De La Rosa’s claim is unpersuasive. The instructions he challenges follow directly from our Supreme Court’s precedent. Time and again, our Supreme Court has explained that heat of passion and imperfect self-defense ” ‘reduce an intentional, unlawful killing from murder to voluntary manslaughter “by negating the element of malice that otherwise inheres in such a homicide.” ’ ” (Schuller, supra, 15 Cal.5th at p. 252, italics added, original italics omitted; see People v. Freel (1874) 48 Cal. 436, 437 [a killing in the heat of passion “will reduce the offense to manslaughter“].) This is not a new concept. For California courts, it goes back to the time of our state’s founding. (People v. Freeland (1856) 6 Cal. 96, 98 [“In order to reduce the offense to manslaughter, it was necessary to establish some provocation apparently sufficient to
Our Supreme Court, moreover, has already rejected the very type of argument De La Rosa raises here—though neither party discusses this authority. In People v. Parker, supra, 13 Cal.5th 1, the dеfendant challenged the predecessor to CALCRIM No. 570, CALJIC No. 8.42, which similarly states that an unlawful killing can be “reduce[d]” from murder to “manslaughter upon the ground of sudden quarrel or heat of passion.” (Parker, at p. 70 & fn. 22.) Echoing De La Rosa’s claim here, the defendant asserted that this instruction “improperly permitted jurors to presume murder was the default offense and could be reduced or excused by certain mental states, the presence of which were defendant’s burden to prove.” (Id. at p. 70.) But our Supreme Court disagreed. It said it had earlier “upheld the propriety” of this instruction, noted the instructions as a whole explained that the prosecution bore the burden of proof, and said jurors are presumed to follow the instructions given. (Id. at p. 71.) That reasoning is fatal to De La Rosa’s claim here. (Ibid.; see also People v. Howard (2024) 104 Cal.App.5th 625, 661-662 [rejecting similar challenge to CALCRIM Nos. 570 & 571].)
Nor are we persuaded to find differently based on studies, cited for the first time on appeal, stating that jurors often misunderstand jury instructions. De La Rosa cites two articles stating generally that jurors often struggle to understand jury instructions. (Marder, Bringing Jury Instructions Into the Twenty-First Century (2006) 81 Notrе Dame L.Rev. 449, 451; Reifman et al., Real Jurors’ Understanding of the Law in Real Cases (1992) 16 Law & Hum. Behav. 539, 540.) He also cites a draft study finding that in a sample of nearly 900 respondents, most misunderstood who held the burden of proof under CALCRIM No. 570. (Redbird, The Impact of Jury Instructions on Heat of Passion Manslaughter Determinations (Jan. 27, 2022) Northwestern Inst. for Policy Researсh, 5 <https://www.ipr.northwestern.edu/documents/working-papers/2022/wp-22-08.pdf> [as
II
Firearm Enhancement
De La Rosa next argues that the trial court misunderstood its discretion to modify his firearm enhancement and that remand for resentencing is thus appropriate. The People agree, as do we.
Several statutes provide for firearm enhancements. The two relevant here are
Trial courts generally must sentence a defendant under
Here, the jury found true an allegation that in committing murder, De La Rosa personally and intentionally discharged a firearm causing death. That finding generally required the trial court to sentence De La Rosa to an additional and consecutive term of 25 years to life under
Because the trial court misunderstood the scope of its sentencing discretion, as McDavid now makes clear, we will reverse. Defendants are entitled to sentencing decisions made through the exercise of informed discretion. “A court acting while unaware of the full scope of its discretion is deemed to have abused it.” (McDavid, supra, 15 Cal.5th at p. 1023.) That is the case here, as all parties agree. And because we
DISPOSITION
The sentence is vacated and the matter is remаnded to the trial court for resentencing. The judgment is otherwise affirmed. Following resentencing, the trial court must prepare an amended abstract of judgment and forward a certified copy to the Department of Corrections and Rehabilitation.
/s/
BOULWARE EURIE, Acting P. J.
We concur:
/s/
MESIWALA, J.
/s/
WISEMAN, J.*
* Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.