People v. GarciaPeople v. Garcia
On appeal, Garcia claims the trial court erred by failing to instruct the jury sua sponte on voluntary manslaughter due to heat of passion and, alternatively, Garcia‘s defense counsel was prejudicially ineffective for failing to request that jury instruction.
For the reasons explained below, we affirm the judgment.
A. Procedural History
In July 2025, the Monterey County District Attorney filed a second amended information (information) charging Garcia with the first degree murder of Gabriel Campos Gutierrez (
In July 2025, the jury found Garcia not guilty of first degree murder but guilty of second degree murder (count 1). The jury also found Garcia guilty as charged of possession of a firearm by a felon (count 2) and possession of ammunition by a felon (count 3).2 Additionally, the jury found true the firearm use allegation attached to count 1.
At a bifurcated court trial on the two prior conviction allegations, the trial court found those allegations true.
On August 20, 2025, the trial court sentenced Garcia to an aggregate indeterminate term of 55 years to life in prison consecutive to a determinate term of two years eight months. The indeterminate term consists of 30 years to life on count 1 (15 years to life, doubled under the Three Strikes law) consecutive to 25 years to life for the firearm use enhancement (
B. Evidence Presented at Trial
1. Prosecution Evidence
Around noon on April 5, 2024,3 a surveillance camera captured Garcia parking his car outside of Bankers Casino in downtown Salinas. Garcia, wearing a large, baggy orange sweatshirt, entered the casino and remained there for over 10 hours. Around 10:31 p.m., Garcia exited the casino accompanied by a woman. Seven minutes later, the pair walked away from the casino‘s parking lot (leaving Garcia‘s car there).
Around 10:38 p.m., a surveillance camera outside the Last Call Bar and Grill (Last Call) captured S.O. and D.R.4 separately approaching and eventually entering the Last Call.5
At 10:43 p.m., the surveillance camera outside the Last Call captured Garcia and the woman walking into the bar. Around 30 seconds later, J.B. exited the bar.
A security guard who was working at the Last Call on the night of April 5 testified that the bar‘s security staff searched the patrons for weapons prior to their entry using a metal detector wand and pat downs. Around 11:00 p.m. that night, two women began fighting. The bar‘s staff broke up the fight. A few minutes later, the security guard learned that there was a person bleeding in the men‘s restroom. The security guard went there and saw Garcia “full of blood,” “[h]overing over the sink,” and cleaning his face. Garcia had an injury to his nose and blood on his face. There also was blood on the sink and floor.
When the security guard asked Garcia what had happened, Garcia said he was “jumped by four to five males.” Garcia did not identify the men. He also refused to have his picture taken and did not want any assistance from police or emergency medical personnel. The security guard gave Garcia a towel and escorted him out of the bar‘s side door around 11:18 p.m. Garcia was still bleeding “a lot.” Garcia said he was going to his car parked at Bankers Casino.
At 11:25 p.m., Garcia approached his car in the Bankers Casino parking lot; he was carrying a towel. Garcia opened the driver‘s door, either leaned or got into his car for around 10 seconds, then exited the car. Garcia next entered the casino (with apparent blood on his orange sweatshirt and slight redness/bruising in the area of his nose), walked around, spoke to a security guard, and exited at 11:30 p.m. Garcia got into his car and drove away.
At 11:33 p.m., Garcia drove into an alleyway behind Jaime‘s, parked his car, got out, and used his towel to seemingly clean out his nose. Surveillance footage shows that approximately two minutes later (around 11:35:09 p.m.), Garcia walked up to the front entrance of Jaime‘s. J.B. and two security guards (R.M. & S.E.) were standing outside Jaime‘s. Garcia pointed toward the entrance to the bar, spoke to the men, and pulled out the towel to wipe his nose again. Garcia was wearing the same baggy orange sweatshirt (which still had bloodstains on it). Garcia‘s gun was not visible. Around 25 seconds after Garcia arrived outside Jaimes‘s, J.B. looked inside the door to the bar and motioned with his hand, seemingly asking for someone to join him outside. In response, Gutierrez got up from his bar stool and walked outside at about 11:35:47 p.m.
Approximately 15 seconds later (at 11:36:02 p.m.), J.B. again looked inside Jaime‘s and beckoned to S.O. and D.R. Around the same time, Garcia folded his towel and began walking away from the entrance. Meanwhile, inside Jaime‘s, S.O., followed by D.R. and another man, walked through the bar toward the front entrance. Outside, J.B. and Gutierrez followed Garcia
At 11:36:16 p.m., as J.B., S.O., and Gutierrez stood a few feet from Garcia (essentially in a semicircle with Gutierrez and J.B. closest to Garcia and S.O. further away), Garcia reached toward his waistband and took a few steps backward (moving outside the view of the surveillance camera). Garcia pulled out a gun and fired it four times as J.B. and S.O. retreated toward the entrance to Jaime‘s (joining D.R. and the other man). Simultaneously, Gutierrez stepped to the side (toward the storefronts), held up his hands, and pointed his finger toward Garcia as Garcia drew and fired the gun. The video footage does not show the shooting or Gutierrez falling to the ground. After the shooting, Garcia ran quickly to his car and drove away from the area.
Around 11:37 p.m., police responded to the scene of the shooting. The police found Gutierrez lying on his back with a gunshot wound in his left abdomen. The bullet had entered Gutierrez‘s abdomen and exited from his lower back, traveling through Gutierrez‘s body from left to right and slightly downward. The police located four expended cartridge casings and a fired bullet at the scene. Gutierrez was transported to a hospital and died there at midnight; he was 46 years old.
D.R. and S.O. refused to cooperate with the police. J.B. told the police that he had walked out of Jaime‘s and saw his friend Gutierrez on the ground. J.B. refused to give the police his phone number. Jaime‘s security guard S.E. was subpoenaed but failed to appear at trial. Law enforcement could not locate the other security guard, R.M., around the time of trial.
2. Defense Evidence
Garcia‘s sole defense witness was the woman (D.P.) who had accompanied Garcia from Bankers Casino to the Last Call on April 5. D.P. testified that at some point that night, she left the Last Call with other friends. D.P. also testified that she did not see any “commotion” while she was at the bar or “see anything that looked as if Mr. Garcia was in trouble, or he was being assaulted.”
II. DISCUSSION
Garcia raises two claims of error in this appeal: (1) the trial court violated Garcia‘s constitutional rights by failing to instruct the jurors sua sponte on the necessarily lesser included offense of voluntary manslaughter under a theory of heat of passion; and (2) if the court had no sua sponte duty to instruct on voluntary manslaughter, Garcia‘s defense counsel provided prejudicial ineffective assistance of counsel (IAC) by failing to request a voluntary manslaughter instruction.
We address Garcia‘s claims concurrently.
A. Additional Background
Prior to the close of evidence at trial, the trial court and the parties discussed the potential jury instructions off the record. Subsequently, on the record, the court noted that it and the parties were “in complete agreement as to which jury instructions should be given,” including “the provocation jury instruction that was requested recently” (presumably by defense counsel).
During closing argument, the prosecutor asserted that Garcia “was looking for payback” after being beaten at the Last Call and committed the shooting with premeditation and deliberation. The prosecutor further asserted that Garcia had intended to shoot S.O. but hit Gutierrez instead and, thus, Garcia was guilty of murder under the transferred intent doctrine.
Garcia‘s defense counsel argued that the prosecution had failed to prove Garcia was the actual shooter of Gutierrez. Alternatively, counsel argued that if the jurors found Garcia to be the shooter, voluntary intoxication “may have an impact” on whether Garcia “formed intent to kill” or “premeditated and deliberated.” Counsel argued further that “provocation may apply in this case, given the facts and circumstances leading up to what happened out in front of Jaime‘s” and “provocation would make this a second-degree murder and not a first-degree murder.”
As mentioned ante (pt. I.A.), the jury acquitted Garcia of first degree murder but found him guilty of second degree murder.
B. Legal Principles
1. Murder and Voluntary Manslaughter
Murder is the unlawful killing of a human being with malice aforethought. (
“Manslaughter is the unlawful killing of a human being without malice.” (
” ‘The heat of passion requirement for manslaughter has both an objective and a subjective component.’ [Citations.] ‘The defendant must actually, subjectively, kill under the heat of passion.’ [Citation.] With respect to the objective component, ’ “this heat of passion must be such a
(People v. Choyce (2025) 18 Cal.5th 86, 104–105 (Choyce); see also People v. Parker (2025) 113 Cal.App.5th 1261, 1268 [“The provocative conduct need not be so extreme that it would prompt an ordinary person to kill. [Citation.] However, to be sufficient, the provocation must be such that it would cause an ordinary, sober person of average disposition to act rashly or without due deliberation and reflection.“].)
Provocation may also reduce murder from first to second degree when there is a reasonable doubt whether defendant acted with premeditation or deliberation. (People v. Rivera (2019) 7 Cal.5th 306, 328; People v. Thomas (1945) 25 Cal.2d 880, 903.) ” ’ “[T]he existence of provocation which is not ‘adequate’ to reduce the class of the offense [from murder to manslaughter] may nevertheless raise a reasonable doubt that the defendant formed the intent to kill upon, and carried it out after, deliberation and premeditation.” ’ ” (People v. Robbins (2018) 19 Cal.App.5th 660, 673.)
In contrast to the heat of passion requirement for voluntary manslaughter, “[t]he test of whether provocation or heat of passion can negate deliberation and premeditation so as to reduce first degree murder to second degree murder . . . is subjective.” (People v. Padilla (2002) 103 Cal.App.4th 675, 678.) The subjective test “inquires whether the defendant
2. Jury Instructions
“A trial court has a sua sponte duty to instruct the jury on a lesser included uncharged offense if there is substantial evidence that would absolve the defendant from guilt of the greater, but not the lesser, offense. [Citation.] Substantial evidence is evidence from which a jury could conclude beyond a reasonable doubt that the lesser offense was committed. [Citations.] Speculative, minimal, or insubstantial evidence is insufficient to require an instruction on a lesser included offense.” (People v. Simon (2016) 1 Cal.5th 98, 132; see also People v. Williams (1995) 40 Cal.App.4th 446, 454 [“[T]o justify the giving of voluntary manslaughter instructions it is not enough that there is some evidence of heat of passion. [Citation.] There must be ‘evidence substantial enough to merit consideration.’ “].)
“We review the trial court‘s failure to instruct on a lesser included offense de novo [citations] considering the evidence in the light most favorable to the defendant.” (People v. Brothers (2015) 236 Cal.App.4th 24, 30; see also People v. Nieves (2021) 11 Cal.5th 404, 463; People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.)
Garcia contends the trial court erred in failing to instruct on voluntary manslaughter because the record contains substantial evidence from which the jury reasonably could have concluded he was guilty of voluntary manslaughter based on heat of passion. Garcia states that he was “viciously assaulted at the Last Call [], leaving his face bloodied and his clothing stained with blood.” He also notes that he only drew his gun and fired it after J.B., S.O., and Gutierrez “approached and confronted him.” Garcia argues that “[i]n this case of transferred intent, the jury properly could have considered the group‘s extremely recent violence against [Garcia] in assessing both the objective reasonableness of his response as well as his subjective belief in the need to do so.” Garcia further claims there was sufficient evidence supporting the heat of passion instruction “from the perspective of a [reasonable] person who had just been assaulted and who, a mere hour later, was again menacingly confronted by his assailants as he was walking away.”
Preliminarily, we note that Garcia asserts in his appellate briefing that J.B. “very likely was one of [Garcia‘s] assailants” at the Last Call. Although that assertion is not dispositive to our denial of Garcia‘s claims for relief post, even viewing the record in the light most favorable to Garcia, his assertion that J.B. likely participated in the altercation at the Last Call is not supported by substantial, nonspeculative evidence. As detailed ante (pt. I.B.1.), the surveillance footage proves that J.B. exited the Last Call about 30 seconds after Garcia arrived there at 10:43 p.m. There was no evidence showing that J.B. reentered the Last Call that night. Furthermore, in accord with the security guard‘s testimony about the disruptions that occurred beginning around 11:00 p.m., the surveillance footage shows that D.R. and S.O. exited the Last Call at 11:09 p.m., and Garcia was escorted out
Turning to the objective component of heat of passion, as discussed ante (pt. II.B.1.), to satisfy that requirement, a defendant‘s heat of passion must be due to sufficient provocation. (Choyce, supra, 18 Cal.5th at p. 105.) Provocation is legally sufficient when such provocation would induce a person of average disposition ” ’ “to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.” ’ ” (People v. Nelson (2016) 1 Cal.5th 513, 538, quoting People v. Beltran (2013) 56 Cal.4th 935, 948 (Beltran).) “A voluntary manslaughter instruction is unwarranted where the alleged provocation was no more than taunting words, a technical battery, a slight touching, or simple assault.” (People v. Odell (2023) 92 Cal.App.5th 307, 318; see also People v. Gutierrez (2009) 45 Cal 4th 789, 827 [“Simple assault, such as the tussle defendant described, also does not rise to the level of provocation necessary to support a voluntary manslaughter instruction.“].)
Even viewing the trial evidence most favorably to Garcia, we are not persuaded that there is substantial evidence supporting the objective component of heat of passion at the time of the killing. As detailed ante (pt. I.B.1.), the trial record establishes that sometime between approximately 11:00 p.m. and 11:09 p.m., four or five men (including D.R. and S.O.) “jumped” Garcia inside the Last Call and hit Garcia in the face, causing him to bleed profusely. The blood most likely emanated from inside Garcia‘s nose given the lack of evidence that Garcia suffered any cut or laceration to the skin on his nose or face. When the bar‘s security guard spoke to Garcia in the
Approximately 30 minutes after Garcia had been beaten at the Last Call, he arrived at Jaime‘s and spoke to J.B. and the two security guards outside. One minute later, Garcia began walking away from the bar‘s entrance. J.B. and Gutierrez followed. Within a matter of seconds, Garica stopped and turned toward J.B. and Gutierrez. The men did not touch Garcia and remained a few feet away. A few seconds later, S.O. exited Jaime‘s and walked toward Garcia, J.B., and Gutierrez. As S.O. approached, Garcia pulled out his gun and fired it. He then ran off and drove away.
Although the record amply supports that Garcia had suffered an attack from S.O., D.R., and others at the Last Call that included a blow to his nose, malice is not negated by passion when ” ‘sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return.’ ” (Beltran, supra, 56 Cal.4th at p. 951; see also People v. Hach (2009) 176 Cal.App.4th 1450, 1458 [” ’ “[T]he rule is that, if sufficient time has ela[ps]ed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter.” ’ “].) As little as 30 to 40 minutes may be a sufficient cooling-off period. (People v. Dixon (1961) 192 Cal.App.2d 88, 90.) The instant trial evidence shows that Garcia left the Last Call about nine minutes after D.R. and S.O. An additional 15 minutes passed while Garcia walked from the Last Call back to and through Bankers Casino, spoke to a security guard, and then drove to Jaime‘s. During this period, Garcia
Relatedly, the brief interaction that occurred between Garcia, Gutierrez, J.B., and S.O. outside Jaime‘s does not, as Garcia contends, amount to “obvious provocation.” There is no evidence regarding the words that may have been spoken outside Jaime‘s before or when Garcia walked away, stopped, turned toward Gutierrez and J.B., and pulled out his gun. In addition, Gutierrez, J.B., and S.O. were several feet away from Garcia when he drew his weapon, and the trio did not make any overtly hostile or sudden movements toward Garcia. On this record, without engaging in speculation, we decide that the interaction outside Jaime‘s amounted to a minimal confrontation that would not have caused an average person in Garcia‘s circumstances to experience additional arousal of passion. (See People v. Najera (2006) 138 Cal.App.4th 212, 226 [” ’ “A provocation of slight and trifling character, such as words of reproach, however grievous they may be, or gestures, or an assault, or even a blow, is not recognized as sufficient to arouse, in a reasonable man, such passion as reduces an unlawful killing with a deadly weapon to manslaughter.” ’ “].)
Not only did Garcia have sufficient time to reflect and regain clear reasoning and judgment after the attack at the Last Call, his calm and deliberate behavior after he left the Last Call suggests that he armed himself and fired his gun at Gutierrez, J.B., and S.O. out of a desire for revenge against S.O. and the others who beat him. “[A] passion for revenge[, however,] cannot satisfy the objective requirement for provocation.” (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 301; see also People v. Gutierrez (2002) 28 Cal.4th 1083, 1144 [“passion for revenge . . . will not serve to reduce murder to manslaughter“].)
Under the present circumstance, even viewing the evidence in the light most favorable to Garcia, we conclude that an ordinary person of average disposition who suffered an attack like that perpetrated on Garcia would have gained, and not lost, his clear reasoning and judgment by the time of the shooting outside Jaime‘s and would not have acted rashly or without due deliberation or reflection in killing Gutierrez.7 (See People v. Moye (2009) 47 Cal.4th 537, 550–552.) We thus discern no error in the trial court‘s failure to instruct the jurors on voluntary manslaughter based on heat of passion.
Turning to Garcia‘s alternative IAC claim, Garica contends his defense counsel was ineffective in failing to request a jury instruction on heat of passion voluntary manslaughter. To make out an IAC claim, Garcia ” ‘must first show counsel‘s performance was deficient, in that it fell below an objective standard of reasonableness under prevailing professional norms. Second, [Garcia] must show resulting prejudice, i.e., a reasonable probability that, but for counsel‘s deficient performance, the outcome of the proceeding would have been different.’ ” (People v. Hoyt (2020) 8 Cal.5th 892, 958; see also People v. Mai (2013) 57 Cal.4th 986, 1009.) We can reject the claim on either element of the standard. (People v. Kirkpatrick (1994) 7 Cal.4th 988, 1008, disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
As discussed ante, we have decided there is no substantial evidence to support the objective component of the heat of passion requirement. Hence, any request by counsel for a heat of passion voluntary manslaughter instruction would not have been successful, and an IAC claim on that basis necessarily fails. (See People v. Gray (2005) 37 Cal.4th 168, 219–220 [counsel is not ineffective for failing to request a jury instruction on a lesser included offense unsupported by substantial evidence]; People v. Dennis (1998) 17 Cal.4th 468, 541 [IAC claim premised on a failure to request a jury instruction must fail where the defendant was not entitled to such an instruction]; People v. Smith (2021) 70 Cal.App.5th 298, 313, fn. 24; see also People v. Cunningham (2001) 25 Cal.4th 926, 1008 [“[E]ven on request, a trial judge has no duty to instruct on any lesser offense unless there is substantial evidence to support such instruction.“].)
III. DISPOSITION
The judgment is affirmed.
Danner, J.
WE CONCUR:
Greenwood, P. J.
Adams, J.
H053585
People v. Garcia