Unreported / Non-Citable
Background
Bryan Inocencio and Carl Ray Flores Jr. were convicted after Paul G. survived multiple gunshot wounds in August 2021. The prosecution's theory was that Flores, an incarcerated gang 'shot caller,' directed Inocencio to kill Paul G. over a drug debt. Inocencio instead testified that he fired in self-defense during an argument over a personal debt. The jury convicted both defendants of attempted murder, assault with a semiautomatic firearm, and active gang participation; Inocencio was also convicted of felon firearm possession, and each defendant was convicted of attempting to dissuade a witness. Gang and firearm allegations were found true, along with Flores's prior strike convictions.
Inocencio received 15 years to life for attempted murder, a concurrent two-year term for firearm possession, and a consecutive seven-years-to-life term for dissuading a witness under the gang-related alternate sentencing scheme of section 186.22, subdivision (b)(4)(C), with punishment stayed on the remaining counts. Flores received 25 years to life for attempted murder under the three-strikes law plus an additional 25 years to life for a firearm enhancement—50 years to life in all—and a consecutive 25-years-to-life term for dissuading a witness plus a determinate 10 years for two prior serious felony convictions. Inocencio raised nine appellate challenges involving jury instructions, the Second Amendment, sentencing findings, and enhancement dismissal; Flores separately challenged the refusal to strike enhancements and joined Inocencio's arguments.
The Court’s Holding
The court found no substantial evidence requiring a duress instruction: Inocencio never testified that anyone threatened him into shooting, no other witness testified to any threat of violence against him, and expert testimony that refusing Flores could make him a future gang target did not establish the imminent danger duress requires. The court expressly left unresolved whether duress can defend against attempted murder or support attempted voluntary manslaughter through 'imperfect duress.' It also rejected the aiding-and-abetting alternative-theory claim: the instructions required proof that a perpetrator directly committed attempted murder, and because Flores was incarcerated during the shooting, the direct-step instructions precluded any reasonable juror from finding him the direct perpetrator whose malice could be imputed to Inocencio. CALCRIM No. 601 required separate deliberation-and-premeditation findings as to each defendant.
Any failure to instruct on temporary lawful firearm possession was harmless because the jury rejected self-defense under instructions encompassing the elements of that defense. The court followed published California authority upholding section 29800 facially under the Second Amendment and held that any as-applied challenge was forfeited because it was neither raised in the trial court nor developed with case-specific analysis on appeal. Related ineffective-assistance claims failed for lack of a sufficient showing of deficient performance and prejudice.
The court found no abuse of discretion in refusing Flores's enhancement-dismissal requests: the over-20-years mitigating factor did not apply because his underlying indeterminate sentences already exceeded 20 years, and the multiple-enhancement factor was properly weighed against aggravating circumstances. Inocencio forfeited his section 1385 claim by never inviting dismissal, and his remaining sentencing attacks—concerning section 654 jury findings, middle-term selection, and prior-prison-term findings—also failed. The judgments were affirmed, but the trial court was directed on remand to amend Inocencio's abstract of judgment to show that the section 12022.53, subdivision (d), enhancement on count 1 was imposed with punishment stricken, and to forward the amended abstract to the Department of Corrections and Rehabilitation.
Key Takeaways
- A generalized expert opinion about future gang retaliation did not supply substantial evidence of the imminent threat needed for a duress instruction, and the court expressly declined to decide whether duress is available for attempted murder or imperfect duress.
- The aiding-and-abetting instructions did not permit the jury to treat the incarcerated Flores as the direct attempted-murder perpetrator and then impute his malice to Inocencio.
- The court upheld California's felon-firearm-possession statute facially under the Second Amendment but decided no as-applied challenge because none was preserved and developed.
- Section 1385's enumerated mitigating circumstances guide a holistic sentencing balance rather than creating an automatic presumption requiring enhancement dismissal.
- The only directed change concerned the abstract of judgment, which must accurately record that punishment on Inocencio's count 1 firearm enhancement was stricken.
Why It Matters
The decision applies settled instructional and sentencing principles to a record with competing prosecution and self-defense accounts, emphasizing that appellate claims must correspond to the instructions and findings actually made. It also shows how harmless-error analysis can resolve an omitted firearm-possession defense when other verdicts necessarily decide the same factual issues adversely to the defendant.
The court expressly avoided deciding whether duress is available for attempted murder or can produce attempted voluntary manslaughter through imperfect duress. Its remedial direction was narrow but concrete: affirmance did not eliminate the need to make the official sentencing abstract match the oral judgment, particularly where an enhancement was imposed but its punishment stricken.