People v. Flores CA4/2

Filed 10/28/26 P. v. Flores CA4/2 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT DIVISION TWO THE PEOPLE, Plaintiff and Respondent, E085025 v. (Super.Ct.No. BAF2301143) CARL RAY FLORES, JR. et al., OPINION Defendants and Appellants. APPEAL from the Superior Court of Riverside County. Johnnetta E. Anderson, Judge. Affirmed with directions. Rachel Varnell, under appointment by the Court of Appeal, for Defendant and Appellant, Carl Ray Flores, Jr. Aurora Elizabeth Bewicke, under appointment by the Court of Appeal, for Defendant and Appellant, Bryan Inocencio. Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Arlene A. Sevidal, Assistant Attorney General, A. Natasha Cortina and Christine Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent. 1  I. INTRODUCTION In August 2021, Paul G. presented to the hospital with multiple gunshot wounds. As a result of the shooting of Paul G., defendants and appellants Bryan Inocencio and Carl Ray Flores, Jr., were convicted of (1) attempted murder (count 1; Pen. Code1 §§ 664, 187, subd. (a)); (2) assault with a semiautomatic firearm (count 2, § 245, subd. (b)); and (3) active participation in a criminal street gang (count 4, § 182.5). Additionally, Inocencio was convicted of unlawful possession of a firearm by a convicted felon (count 3; § 29800), and both Flores and Inocencio were each convicted of attempting to dissuade a witness, arising out of different incidents following the shooting (counts 5, 6; § 136.1, subd. (b)(2)). A jury also found true special allegations in support of gang and firearm enhancements (§§ 186.22, subd. (b),12022.5, 12022.7, subd. (a), 12022.53, subds. (d) & (e)); and the trial court found that Flores had suffered two prior convictions qualifying as serious felonies and strike offenses (§§ 667, subd. (a), 667, subds. (c) & (e), 1172.12, subd. (c)). Inocencio appeals from the judgment, arguing that: (1) his conviction on all counts must be reversed for failure to instruct the jury on the defense of duress; (2) his conviction for attempted murder must be reversed for failure to instruct the jury on “imperfect duress” as a basis to find him guilty of the lesser included offense of attempted voluntary manslaughter; (3) his conviction for attempted murder should be reversed because the pattern jury instructions on aiding and abetting permitted the jury to 1 Undesignated statutory references are to the Penal Code. 2 convict him on an invalid theory of murder premised upon implied malice; (4) his conviction for unlawful possession of a firearm should be reversed for failure to instruct the jury on the defense of temporary lawful possession for self-defense; (5) his conviction for unlawful possession of a firearm should be reversed because section 29800 is unconstitutional in violation of the Second Amendment of the United States Constitution (Second Amendment); (6) his sentence should be reversed because he was entitled to a jury determination on whether section 654 operates to stay punishment on count 3; (7) his sentence should be reversed because the trial court improperly relied on the same factors to impose an enhancement and what Inocencio characterizes as an aggravated sentence; (8) his sentence must be reversed because the trial court’s purported findings that he had suffered six prior prison terms as an aggravating circumstance were unsupported by substantial evidence; and (9) his sentence must be reversed because the trial court abused its discretion in failing to strike enhancements pursuant to section 1385. Flores also appeals from the judgment but separately2 argues only that his sentence should be reversed because the trial court abused its discretion in failing to strike enhancements pursuant to section 1385. We find no prejudicial error and affirm the judgments. II. BACKGROUND A. Facts and Charges In August 2021, Paul G. presented to the hospital with multiple gunshot wounds. 2 Flores has also joined in all arguments asserted by Inocencio on appeal. 3 He eventually reported to law enforcement that he owed money to Flores related to the sale of illicit drugs supplied by the Mexican Mafia; Flores threatened to kill him over the debt; and Inocencio shot him at the direction of Flores. As a result of the shooting, Inocencio was charged with (1) willful, deliberate, and premeditated attempted murder (§§ 187, subd. (a), 664; count 1); (2) assault with a semiautomatic firearm (§ 245, subd. (b); count 2); (3) unlawful possession of a firearm by a convicted felon (§ 29800; count 3); (4) active participation in a criminal street gang (§ 182.5; count 4); and (5) attempt to dissuade a witness (§ 136.1, subd. (a)(2); count 5). Flores was charged as a co-defendant with respect to counts 1, 2, and 4. He was also charged with a separate attempt to dissuade a witness (§ 136.1, subd. (b)(2); count 6). The information also alleged that Inocencio personally discharged a firearm causing great bodily injury in the commission of counts 1 and 2 (§§ 1192.7, subd. (c)(8), 12022.53, subds. (d) & (e)) and that the commissions of counts 1, 2, 5, and 6 were all subject to various gang enhancements under section 186.22, subdivision (b). B. Relevant Evidence at Trial3 Paul G. testified that he personally knew both Inocencio and Flores. Inocencio was a member of a local street gang known as Moreno Valley Locos,4 and Flores was a 3 Because defendants do not challenge the sufficiency of the evidence to support the verdict, we summarize only the evidence necessary to provide context and address the claims of error actually presented in the opening briefs. 4 The parties stipulated to the fact that Moreno Valley Locos is a criminal street gang within the meaning of section 186.22. 4 “shot caller”5 for the gang. Prior to meeting either defendant, Paul G. operated a marijuana and methamphetamine dispensary. Flores was initially introduced to him as a person that could provide a larger supply of drugs for sale. Paul G. and Flores developed a business relationship in which Paul G. would act as an intermediary to deliver drugs and collect payment on behalf of Flores. Flores was incarcerated, so Paul G. would communicate with Flores via video call during drug transactions so that Flores could monitor the amount of drugs delivered and the payment collected during each transaction. Inocencio was never involved in these transactions, and Paul G. considered Inocencio as just a friend. In February 2021, Paul G. was arrested. As a result, illicit drugs and a firearm were confiscated from his possession. When Paul G. was released from custody, Flores contacted him to ask for payment for the drugs that had been confiscated. Eventually, Paul G. told Flores that he wanted to end his participation in drug transactions. Flores responded that Paul G. still owed Flores thousands of dollars for the confiscated drugs and that the gang would kill Paul G. if he did not pay the money back. Paul G. paid Flores a small portion of what he owed but did not have enough money to pay back the entire debt. In August 2021, Paul G. invited Incencio to his home to celebrate Paul G.’s 5 Paul G. testified that a “shot caller” was someone who “was in charge of what [the gang] did” and that the gang answered to the shot caller. 5 birthday. At some point, Inocencio asked to see one of Paul G.’s firearms and, in response, Paul G. retrieved a firearm and handed it to Inocencio. While holding the firearm, Inocencio chambered a round and pointed the firearm at Paul G. Paul G. asked Inocencio what was going on and, in response, Inocencio made a video call to Flores and handed the phone to Paul G. When Paul G. attempted to speak with Flores, Flores simply responded with “ ‘You’re dead.’ ” At that point, Inocencio took the phone, turned the phone so that it could record Paul G., and shot Paul G. multiple times. Paul G. sustained a shot to the chest, multiple shots to his abdomen, and multiple shots to his legs. He was later hospitalized, underwent emergency surgery, and spent months recovering in the hospital. Inocencio testified in his own defense that Paul G. had given him a firearm days before the shooting and Inocencio carried it around for self-protection. Inocencio testified that he went to Paul G.’s home on the night of the shooting and began arguing with Paul G. over a personal debt Paul G. owed Inocencio. During this argument, Paul G. pulled out a rifle or shotgun, cocked it and began to turn the gun toward Inocencio. In response, Inocencio pulled out his own firearm and opened fire, shooting without any specific target or any intent to kill Paul G. Inocencio denied that Flores had anything to do with the incident. After Inocencio testified, the prosecution presented a recorded video of a prior interview between Inocencio and law enforcement. At the time, Inocencio denied ever shooting anyone and did not indicate Paul G. was armed. Inocencio denied calling Flores while at Paul G.’s home, denied that Flores made him do anything, and denied any 6 knowledge of how Flores or Paul G. knew each other. However, Inocencio mentioned that he would be in trouble if Flores became associated with Inocencio’s personal disputes. C. Verdict and Sentence In closing argument, the prosecution’s theory of the case was that Flores, as a gang “shot caller,” ordered Inocencio, a fellow gang member, to kill Paul G. Pursuant to this theory, the trial court instructed the jury with the pattern instructions on aiding and abetting (CALCRIM Nos. 400, 401) as well as compelling another to commit a crime (CALCRIM No. 443). Upon Inocencio’s request, the trial court also instructed the jury on self-defense (CALCRIM No. 505), as well as the lesser included offense of attempted voluntary manslaughter due to heat of passion or imperfect self-defense (CALCRIM Nos. 603, 604). The jury convicted Inocencio and Flores on all counts. The jury also found true special allegations that (1) in the commission of attempted murder, Inocencio acted willfully, with deliberation and premeditation; (2) Inocencio’s commission of attempted murder and assault involved the personal use of a firearm causing great bodily injury; and (3) the offenses were committed for the benefit of a criminal street gang. In a bifurcated proceeding, the trial court found true allegations that Flores had suffered two prior serious felony convictions (§ 667, subd. (a)) and three prior convictions qualifying as strike offenses (§§ 667, subds. (c), (e); 1170.12, subd. (c).) The trial court also found true various circumstances in aggravation as to both defendants. The trial court sentenced Inocencio to (1) an indeterminate term of 15 years to life 7 in state prison for the attempted murder (count 1; §§ 664, 187, subd. (a)) pursuant to the alternate sentencing scheme for gang related offenses (§ 186.2, subd. (b)(5)); (2) a concurrent determinate middle term of two years for the prohibited possession of a firearm (count 3; § 29800); and (3) a consecutive determinate term of seven years to life for the attempt to dissuade a witness (count 5; § 136.1, subd. (b)(2)) pursuant to the alternate sentencing scheme for gang related offenses (§ 186.22, subd. (b)(4)(C)).6 As to count 1, the trial court imposed but struck the punishment for the firearm enhancement pursuant to section 12022.53, subdivisions (d) and (e). The trial court sentenced Flores to (1) an indeterminate term of 50 years to life in state prison for the attempted murder (count 1; §§ 664, 187, subd. (a)), representing 25 years to life pursuant to the alternate sentencing scheme of the three strikes law (§§ 667, subds. (c) & (e), 1170.12, subd. (c)) enhanced by an additional 25 years to life for an associated firearm enhancement (§ 12022.53, subds. (d), (e)); and (2) a consecutive determinate term of 10 years plus an indeterminate term of 25 years to life for the attempt to dissuade a witness (count 6; § 136.1, subd. (b)(2)), representing 25 years to life pursuant to the alternate sentencing scheme for gang related offenses (§ 186.22, 6 The trial court also sentenced Inocencio to (1) 23 years in state prison for assault with a firearm (count 2; § 245, subd. (b)), representing the middle term of six years, enhanced with an additional three for causing great bodily injury (§ 12022.7), 10 years for committing the offense for the benefit of a criminal street gang (§186.22, subd. (b)(1)(C)) and four years for the personal use of a firearm (§ 12022.5, subd. (a)); and (2) two years and four months for active participation in a criminal street gang (count 4; § 182.5), representing one-third the middle term for that offense. However, the trial court stayed imposition of punishment for counts 2 and 4 pursuant to section 654. 8 subd. (b)(4)(C)), enhanced by a determinate term of 10 years as a result of suffering two prior serious felony convictions (§ 667, subd. (a)).7 III. DISCUSSION A. Instructional Error Claims On appeal, Inocencio asserts the trial court committed instructional error by: (1) failing to instruct the jury on duress as a defense to each of the charges; (2) failing to instruct the jury on the purported lesser included offense of attempted voluntary manslaughter as a result of “imperfect duress”; (3) failing to modify the pattern jury instructions on aiding and abetting liability to prevent alternative theory error; and (4) failing to instruct the jury on temporary lawful possession for self-defense as a defense to a violation of section 29800. Generally, “[a] claim of instructional error is reviewed de novo…. In reviewing a claim of instructional error, the court must consider whether there is a reasonable likelihood that the trial court’s instructions caused the jury to misapply the law …. The challenged instruction is viewed ‘in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the 7 The trial court also sentenced Flores to (1) 10 years plus 25 years to life for the assault conviction (count 2; § 245, subd. (b)), representing 25 years to life pursuant to the alternate sentencing scheme of the three strikes law (§§ 667, subds. (c) & (e), 1170.12, subd. (c)) enhanced by 10 years for committing the offense for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)(C)); and (2) 25 years to life for active participation in a criminal street gang (count 4; § 182.5) pursuant to the alternate sentencing scheme of the three strikes law (§§ 667, subds. (c) & (e), 1170.12, subd. (c)). However, the trial court stayed imposition of punishment for counts 2 and 4 pursuant to section 654. 9 instruction in an impermissible manner.” (People v. Mitchell (2019) 7 Cal.5th 561, 579.) As we explain, we find no prejudicial error warranting reversal on any of the claims of instructional error asserted by Inocencio. 1. The Trial Court Was Not Required To Instruct on Duress On appeal, Inocencio contends that the trial court should have instructed on duress as a defense to counts 1 through 5 or, alternatively, as a basis to find Inocencio guilty of the lesser included offense of voluntary manslaughter instead of attempted murder on count 1. Generally, “a trial court must, sua sponte, or on its own initiative, instruct the jury on lesser included offenses ‘when the evidence raises a question as to whether all of the elements of the charged offense were present [present], but not when there is no evidence that the offense was less than that charged.’ [Citation.] ‘The obligation to instruct on lesser included offenses exists even when as a matter of trial tactics a defendant not only fails to request the instruction but expressly objects to it being given.” (People v. Barton (1995) 12 Cal.4th 186, 194-195 (Barton).) “In contrast to lesser included offenses, a trial court’s duty to instruct, sua sponte, or on its own initiative, on particular defenses is more limited, arising ‘only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendant’s theory of the case.’ ” (Barton, at p. 195; People v. Brooks (2017) 3 Cal.5th 1, 73 (Brooks).) Here, even assuming this issue has 10 been preserved for appeal,8 and assuming, without deciding, that duress is an available defense to attempted murder or an available basis to find a defendant guilty of the lesser included offense of attempted voluntary manslaughter,9 the record in this case does not show any substantial evidence to support giving a duress instruction. “The defense of duress is available to defendants who commit crimes, except murder, ‘under threats or menaces sufficient to show that they had reasonable cause to and did believe their lives would be endangered if they refused.’ ” (People v. Wilson (2005) 36 Cal.4th 309, 331; § 26.) However, it has long been recognized that “[d]uress is an effective defense only when the actor responds to an immediate and imminent danger. ‘[A] fear of future harm to one’s life does not relieve one of responsibility for the crimes he commits.’ ” (People v. Heath (1989) 207 Cal.App.3d 892, 900; People v. Lo Cicero (1969) 71 Cal.2d 1186, 1190, 1191 (Lo Cicero) [“[A] threat of imminent violence” is “essential to a defense of duress.”].) In this case, there was no evidence of any imminent threat of violence made by a third party against Inocencio to support a duress instruction. It was undisputed that Inocencio and Paul G. were the only persons present in the room at the time the shooting 8 The parties dispute whether this claim of instructional error was forfeited by Inocencio’s failure to request a duress instruction in the trial court. 9 The parties also dispute whether duress is a recognized defense to attempted murder or a recognized means of finding a defendant guilty of attempted voluntary manslaughter as a lesser included offense. Neither Inocencio nor the People have cited to any published authority that has directly addressed this specific issue. However, we conclude that it is unnecessary for us to resolve this issue in this appeal. 11 occurred. More importantly, Inocencio never testified that he was induced to shoot Paul G. as the result of a threat of violence from anyone. Nor did any other witness testify to observing or hearing a threat of violence made to Inocencio. Thus, there was no direct or circumstantial evidence to support a finding that Inocencio may have committed any of the alleged offenses as a response to an immediate threat of violence. The only evidence upon which Inocencio relies to show any threat of violence is the testimony of an expert, who generally testified that Inocencio would immediately become a gang target if he refused an order from Flores. However, the threat of being labeled a target for future violence is not the same as a threat of imminent violence for purposes of duress. Indeed, the California Supreme Court has repeatedly rejected similar facts as a basis for duress. (Lo Cicero, supra, 71 Cal.2d at pp. 1189, 1191 [fear that defiance of order to sell illicit drugs “would lead to defendant’s murder by the [drug] syndicate” insufficient to support defense of duress where “no member of the syndicate was present” at the time of the crime]; People v. Perez (1973) 9 Cal.3d 651, 657-658 [threat that the defendant’s “protection from future attacks by other inmates would be removed” is not sufficient to constitute duress]; People v. Powell (2018) 6 Cal.5th 136, 164-165 [fact that defendant felt “ ‘pressured’ ” by accomplices to shoot the victim during a robbery did not support giving instruction on duress where there was no evidence accomplices “threatened him in any way” and no evidence accomplices were armed at the time], overruled in part by People v. Bankston (2026) 19 Cal.5th 786, 867.) Thus, even fully crediting the evidence identified by Inocencio in this appeal, this evidence did not constitute substantial evidence in support of giving a duress instruction. 12  In the absence of any substantial evidence to support a finding of duress, the trial court was not required to instruct the jury on duress, even assuming, arguendo, that duress is an available defense to attempted murder or that it is an available basis to find Inocencio guilty of a lesser included offense of attempted voluntary manslaughter. In either scenario, the trial court is not required to give an instruction where there was no substantial evidence upon which a jury could rely to find duress in the first instance. (Barton, supra, 12 Cal.4th at p. 195; Brooks, supra, 3 Cal.5th at p. 73.) Additionally, because there was no evidence to support a duress instruction for any purpose, we need not address Inocencio’s alternative contentions that his counsel was ineffective for failing to request duress instructions.10 2. The Pattern Instructions on Aiding and Abetting Were Not Erroneous Inocencio also argues that his conviction for attempted murder should be reversed because the pattern jury instructions on aiding and abetting resulted in alternative theory error. Specifically, Inocencio contends that the pattern instructions permitted the jury to convict him on an improper theory of murder because a conviction for murder can no longer be premised upon theories of imputed malice, and the pattern instructions purportedly permitted the jury to (1) find Flores guilty as the direct perpetrator of the 10 We also observe that there is at least one explanation for why counsel may have decided not to request duress instructions as a matter of trial strategy. At the time of trial, Inocencio testified that he shot at the victim out of self-defense after observing the victim wield a firearm. An instruction on duress would have been entirely inconsistent with Inocencio’s claim of self-defense and would have risked undermining Inocencio’s primary defense in the case. 13 attempted murder and thereby impute malice to Inocencio under an aiding and abetting theory; (2) find Flores guilty as the direct perpetrator of the attempted murder and convict Inocencio on an aiding and abetting theory alone thereby relieving the prosecutor of the burden to disprove Inocencio’s self-defense, imperfect self-defense, and heat-of-passion defenses; and (3) find Flores guilty as the direct perpetrator of the attempted murder and impute malice to Inocencio for purposes of finding Inocencio acted willfully, with deliberation and premeditation. We disagree. Generally, “[w]here a jury is instructed on alternate theories of liability, one legally valid and one legally invalid, a federal constitutional error has occurred.” (In re Lopez (2023) 14 Cal.5th 562, 580.) In assessing such a claim, “ ‘[a]n appellate court reviews the wording of a jury instruction de novo and assesses whether the instruction accurately states the law.… [T]he court must consider whether there is a reasonable likelihood that the trial court’s instructions caused the jury to misapply the law in violation of the Constitution…. The challenged instruction is viewed “in the context of the instructions as a whole and the trial record to determine whether there is a reasonable likelihood the jury applied the instruction in an impermissible manner.” ’ ” (People v. Lewis (2023) 14 Cal.5th 876, 900.) If alternative-theory error is found, such error “requires reversal unless we determine the error was harmless beyond a reasonable doubt.” (In re Lopez, at p. 580; Lewis, at p. 900.) Here, all of Inocencio’s arguments on this point rest on the premise that the jury first might have found Flores guilty of attempted murder and then found Inocencio guilty based upon the “aiding and abetting” instructions, thereby imputing Flores’s malice to 14 Inocencio for purposes of the attempted murder charge. In our view, no reasonable juror would have interpreted the pattern instructions in this manner. As relevant to this claim, CALCRIM No. 400 unambiguously instructed the jury that a person can either be guilty of a crime as the perpetrator who directly commits the crime or as a person who aids and abets the perpetrator.11 CALCRIM 401 then instructed the jury that to find a defendant guilty of a crime based on aiding and abetting that crime, the People were required to first prove “the perpetrator committed the crime.”12 Thus, as instructed, the jury was required to find that a perpetrator directly committed a crime before it could find Inocencio guilty of aiding and abetting that crime. However, with respect to the attempted murder charge, no reasonable juror could have found Flores guilty as the perpetrator who directly committed the crime based upon the instructions given. The jury was specifically instructed that a defendant could only be found guilty of attempted murder if he “took at least one direct but ineffective step toward killing another person”(CALCRIM No. 600), and it was further explained that the 11 Specifically, CALCRIM No. 400 states: “A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted the perpetrator, who directly committed the crime.”(CALCRIM No. 400) 12 In full, CALCRIM No. 401 instructed the jury: “To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: (1) The perpetrator committed the crime; (2) The defendant knew that the perpetrator intended to commit the crime; (3) Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; and (4) The defendant’s words or conduct did in fact aid and abet the perpetrator’s commission of the crime.” 15 “direct step” “requires more than merely planning or preparing to commit murder or obtaining or arranging for something needed to commit murder” and must be “an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.” It was undisputed that Flores was incarcerated at the time of the shooting. Thus, even if the jury determined that Flores planned or arranged for the commission of the attempted murder, the instructions clearly precluded a finding that Flores was a perpetrator who directly committed the crime of attempted murder based upon these acts. Nor do we agree with Inocencio’s contention that CALCRIM No. 443 permitted the jury to conclude “Flores’ act of commanding a murder was, itself, an act of attempted murder, which [Inocencio] aided.” That instruction provides: “If the defendant forced another person to commit a crime … , then the defendant is guilty of the crime that the defendant forced the other person to commit.” By its plain words, before a defendant can be considered guilty of a crime under this instruction, there must be another person who first commits the crime. Thus, in our view, no reasonable jury would have applied the instructions in the manner asserted by Inocencio on appeal to find Flores guilty as the direct perpetrator of the attempted murder and Inocencio guilty solely under an aiding and abetting theory. As instructed, the jury could not apply the aiding and abetting instructions to Inocencio unless it first found that another person directly committed the crime of attempted murder. And, as instructed, the jury could not have found Flores, who was incarcerated at the time that Paul G. was shot, guilty as the direct perpetrator of the crime of attempted 16 murder. As such, Inocencio has not shown alternative theory error warranting reversal on appeal. Finally, we are unpersuaded by Inocencio’s argument that the aiding and abetting instructions somehow confused the jury and permitted the jury to impute Flores’ malice to Inocencio for purposes of its finding that Inocencio acted willfully with deliberation and premeditation. The precise nature of Inocencio’s argument on this point is not entirely clear. However, we observe that the jury was instructed with CALCRIM No. 601 with respect to this finding, and the jury was specifically asked to make separate findings on this issue as to each defendant. Nothing in this instruction references or suggests that the jury is permitted to impute the mental state of one defendant to another for purposes of determining whether a defendant acted willfully, with deliberation and premeditation.13 “ ‘It is fundamental that jurors are presumed to be intelligent and capable of understanding and applying the court’s instructions.’ [Citation.] ‘ “A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in 13 CALCRIM No. 601 reads: “If you find the defendant guilty of attempted murder under Count 1, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully, and with deliberation and premeditation. [¶] The defendant acted willfully if he intended to kill when he acted. The defendant deliberated if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the acts of attempted murder. [¶] … [¶] The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find this allegation has not been proved.” 17 the way asserted by the defendant.” ’ ” (People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 433.) Given the unambiguous wording of CALCRIM No. 601, we conclude that Inocencio has not met his burden on appeal to show that a reasonable jury would have interpreted the instructions in the manner he suggests on appeal. 3. Any Failure To Give an Instruction on Temporary Lawful Possession of a Firearm Was Harmless Inocencio also asserts the trial court erred by failing to instruct the jury with CALCRIM No. 2514 as a defense to the charge of unlawful possession of a firearm (count 3; § 29800). CALCRIM No. 2514 provides for the temporary lawful possession of a firearm by a person previously convicted of a felony for purposes of self-defense. (CALCRIM No. 2514.) Even assuming that Inocencio was entitled to such an instruction, we conclude that any failure to instruct on this defense was harmless. Section 29800 provides in pertinent part: “Any person who has been convicted of a felony … and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.” (§ 29800, subd. (a)(1).) However, California authorities recognize a “limited exception to the general rule prohibiting firearm possession by persons convicted of certain crimes” when “ ‘a member of one of the affected classes is in imminent peril of great bodily harm or reasonably believes himself or others to be in such danger, and without preconceived design on his part a firearm is made available to him.’ ” (People v. Delacy (2011) 192 Cal.App.4th 1481, 1493 (Delacy); People v. King (1978) 22 Cal.3d 12, 24 (King).) In such a case, “his temporary possession of that weapon for a period no longer than that in which the necessity or 18 apparent necessity to use it in self-defense continues” does not violate the prohibition. (King, at p. 24.) Regardless of whether Inocencio was entitled to an instruction outlining this defense,14 “ ‘[e]rror in failing to instruct the jury … is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions.’ ” (People v. Horning (2004) 34 Cal.4th 871, 906.) And the record in this case shows the jury clearly made findings adverse to Inocencio that would have precluded an acquittal on count 3 based upon the doctrine of lawful possession for self-defense. Here, the jury found that Inocencio personally used a firearm in the commission of the attempted murder. Thus, the jury necessarily found that Inocencio had possession of a firearm at the time of the attempted murder. With respect to the attempted murder charge, the jury was also instructed with the pattern jury instructions on self-defense. Under these instructions, the jury was required to consider: (1) whether defendant reasonably believed that he was in imminent danger of being killed or suffering great bodily injury under circumstances in which he reasonably believed that he would suffer great bodily injury or death; (2) the defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; and (3) the defendant used 14 We observe that Inocencio testified at trial that he took possession of the firearm days prior to the incident for general self-defense purposes. And “the King rule does not permit such a disqualified person to possess a firearm in anticipation of using it one day in self-defense.” (Delacy, supra, 192 Cal.App.4th at p. 1493.) 19 no more force than was reasonably necessary to defend against that danger. (CALCRIM No. 505) All three of these elements of self-defense are incorporated as part of the six elements necessary to establish temporary lawful possession of a firearm for self- defense.15(CALCRIM No. 2514.) Thus, in rejecting self-defense generally, the jury necessarily determined at least one of the elements necessary to establish a defense under CALCRIM No. 2514 adversely to Inocencio. Thus, the record shows that the jury necessarily found that Inocencio had possession of a firearm at a time when Inocencio would not be entitled to assert the defense of lawful possession for self-defense. Because the jury necessarily determined the factual question posed by CALCRIM No. 2514 adversely to Inocencio under other properly given instructions, any failure to give CALCRIM No. 2514 was harmless and is not grounds for reversal of Inocencio’s conviction on count 3. B. Constitutional Claims Inocencio contends his conviction for unlawful possession of a firearm by a convicted felon (count 3; § 29800) must be reversed because section 29800 violates the Second Amendment, both facially and as-applied to him. Generally, “ ‘ “ [t]he 15 Specifically, the jury would have been required to find “(1) the defendant reasonably believed that [he] was in imminent danger of suffering great bodily injury; (2) the defendant reasonably believed that the immediate use of force was necessary to defend against that danger; (3) a firearm became available to the defendant without planning or preparation on [his] part; (4) the defendant possessed the firearm temporarily … for a period no longer than was necessary … for self-defense; (5) no other means of avoiding the danger of injury was available; and (6) the defendant’s use of the firearm was reasonable under the circumstances.” (CALCRIM No. 2514.) 20 interpretation of a statute and the determination of its constitutionality are questions of law. In such cases, appellate courts apply a de novo standard of review.” ’ ” (People v. Roberts (2025) 114 Cal.App.5th 187, 193.) “ ‘Typically, a litigant may challenge the constitutionality of a statute in two ways: on its face or as applied.’ [Citation.] [¶] ‘A facial challenge seeks to void the statute as a whole by showing that “ ‘no set of circumstances exists under which the [statute] would be valid,’ ” ’ …. In contrast, a defendant making an ‘as applied’ challenge to a statute ‘seek[s] “relief from a specific application of a facially valid statute … to an individual or class of individuals … as a result of the manner or circumstances in which the statute … has been applied.” ’ ” (Id. at pp. 193-194.) As we explain, we conclude that section 29800 is facially valid and further conclude that any as-applied challenge Inocencio intended to raise has been forfeited. 1. Section 29800 Is Not Facially Unconstitutional We turn first to Inocencio’s claim that section 29800 is facially unconstitutional because it violates the Second Amendment. In N.Y. State Rifle & Pistol Ass’n v. Bruen (2022) 597 U.S. 1 (Bruen), the United States Supreme Court set forth a two-part test for analyzing Second Amendment challenges. (In re E.J. (2026) 119 Cal.App.5th 727, 733; People v. McCowan (2026) 117 Cal.App.5th 1071, 108.) “ ‘At Bruen “[s]tep one,” courts must determine whether “the Second Amendment’s plain text covers an individual’s conduct.” … If Bruen step one is satisfied, “[t]he government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.” ’ ” (E.J., at p. 733.) “ ‘At the second Bruen step, the challenged law 21 need not “precisely match its historical precursors” so long as it is “ ‘analogous enough to pass constitutional muster.” ’ ” (E.J., at p. 733.; see United States v. Rahimi (2024) 602 U.S. 680, 692.) Here, Inocencio argues that section 29800 is not consistent with this nation’s historical tradition of firearm regulation because “one way to read this history is to conclude that the Second Amendment’s framers did not share a common agreement that any so