People v. Duhon CA2/2

Opinion

Filed 9/10/26 P. v. Duhon CA2/2 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B339127

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. v. BA501476)

GERALD WAYNE DUHON,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County, Mark Hanasono, Judge. Affirmed as modified and remanded with directions to correct abstract of judgment.

Johanna Pirko, under appointment by the Court of Appeal, for Defendant and Appellant.

Rob Bonta, Attorney General, Charles C. Ragland, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Kenneth C. Byrne and Julie A. Harris, Deputy Attorneys General, for Plaintiff and Respondent. ______________________________ A jury found defendant and appellant Gerald Wayne Duhon (Duhon) guilty of one count of first degree murder (Pen. Code, § 187, subd. (a);1 count 1); two counts of deliberate and premeditated attempted murder (§§ 664, 187, subd. (a); counts 2 & 3); three counts of assault with a firearm (§ 245, subd. (a)(2); counts 4, 5 & 6); and one count of possession of a firearm by a felon (§ 29800, subd. (a)(1); count 7). As to counts 1 through 6, the jury found true allegations that Duhon personally used a firearm (§ 12022.5, subd. (a)), was armed with or used a weapon (Cal. Rules of Court, rule 4.421(a)(2)),2 and engaged in violent conduct that indicates he is a serious danger to society (rule 4.421(b)(1)).3 Duhon admitted that he had suffered two prior serious and/or violent felony convictions (§§ 667, subd. (d), 1170.12, subd. (b)) and two prior convictions (§ 667.5, subd. (c)). Duhon further admitted allegations that he had prior convictions that were numerous and of increasing seriousness (rule 4.421(b)(2)) and that he had served a prior prison term (rule 4.421(b)(3)).

1 All statutory references are to the Penal Code unless otherwise stated. 2 All further references to rules are to the California Rules of Court. 3 The jury found not true the allegation, as to counts 1 through 6, that the offenses involved great violence, great bodily harm, threat of great bodily harm, or an act revealing a high degree of cruelty, viciousness, or callousness. (Rule 4.421(a)(1).)

2 The trial court sentenced Duhon to an indeterminate term of 108 years to life in prison and a determinate term of 24 years 8 months. On appeal, Duhon contends that the trial court erroneously instructed the jury with an argumentative version of CALCRIM No. 3234; the imposition of upper term sentences on count 4 and the firearm enhancements violated his Sixth Amendment right to a jury trial; the court abused its discretion by declining to strike the firearm enhancements; and he received ineffective assistance of counsel. We remand the matter to correct a clerical error in the abstract of judgment and otherwise affirm the judgment.

FACTS Because Duhon does not challenge the sufficiency of the evidence supporting his convictions, we only briefly summarize the evidence adduced at trial. (See People v. Curl (2009) 46 Cal.4th 339, 342, fn. 3.) On October 31, 2021, a group of people, including Nadia C. (Nadia),4 Nadia’s husband, Nadia’s cousin and her husband and son, Gustavo G. (Gustavo), and Miguel N. (Miguel), gathered at a house to socialize. Nadia was the last to leave the home after 10:00 p.m.; her friends and family were chatting outside. While Nadia was in the street loading her car, a car driven by Duhon began to inch towards her and pressured her to walk faster. Gustavo believed the car was about to run Nadia over. He pulled Nadia to the side of the street. Nadia’s husband walked over to 4 Pursuant to rule 8.90(b)(4), we initially refer to the victims in this criminal proceeding by their first names and last initials, and thereafter by their first names. No disrespect is intended.

3 the driver’s side window and said in Spanish something like, “ ‘God-damn it. Why don’t you slow down?’ ” Duhon responded in English in an angry voice. Some members of the group touched Duhon’s car. Duhon continued driving slowly down the street. He stopped a few houses down, retrieved a gun from the hood of his car, and walked around to the side of his car. Duhon fired the gun twice. Miguel suffered a fatal gunshot wound to the head. There was no alcohol in his blood at the time of death. After his arrest, Duhon made incriminating statements to the mother of his child. Duhon testified in his own defense that he felt threatened when the group surrounded his car and called him derogatory names. Shortly after he began to drive away, he heard a gunshot and thought he was being shot at. He pointed the gun and shot. It was dark, and he testified that he did not intend to kill anyone.

DISCUSSION I. Alleged Instructional Error Duhon contends that the trial court committed instructional error by giving the jury an “argumentative and unconstitutional” version of CALCRIM No. 3234 that lowered the prosecution’s burden to prove malice as to the murder and attempted murder counts. A. Additional background The trial court instructed the jury with CALCRIM No. 3234 as follows: “If you find the defendant guilty of the crimes charged in Counts 1, 2, 3, 4, 5, and/or 6, or the lesser crimes of voluntary manslaughter and/or attempted voluntary manslaughter, you 4 must then decide whether the People have proved the additional allegation that Gerald Duhon has engaged in violent conduct, to wit: firing multiple gunshots at an unarmed person or persons, which indicates he is a serious danger to society. “To prove this allegation, the People must prove that: “1. The defendant has engaged in violent conduct; “AND “2. The violent conduct, considered in light of all the evidence presented, shows that the defendant is a serious danger to society. “To determine whether the defendant is a serious danger to society, you may consider the defendant’s conduct before or after commission of the crime. “You may not find the allegation true unless all of you agree that the People have proved that the defendant engaged in violent conduct that shows he is a serious danger to society. However, all of you do not need to agree on which violent conduct shows that the defendant is a serious danger to society. “You may not find the allegation true unless all of you agree that the People have proved that the defendant’s violent conduct was distinctively worse than that posed by an ordinary commission of the underlying crime and that the violent conduct, considered in light of all the evidence presented, shows that the defendant is a serious danger to society. “The People have the burden of proving this allegation beyond a reasonable doubt. If the People have not met this burden, you must find that the allegation has not been proved.” Duhon did not object to CALCRIM No. 3234 as given.5 5 The People argue that Duhon forfeited his claim of instructional error. Although the failure to object to an 5 B. Standard of review We review claims of instructional error de novo. (People v. Thomas (2023) 14 Cal.5th 327, 382.) “ ‘ “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 the way asserted by the defendant. [Citations.]” ’ [Citation.] ‘Jurors are presumed able to understand and correlate instructions and are further presumed to have followed the court’s instructions.’ [Citation.]” (Ibid.) C. The trial court did not err We reject Duhon’s argument that, as given, CALCRIM No. 3234 lowered the prosecution’s burden of proof as to the murder and attempted murder counts by “absolv[ing] the prosecution of its burden to prove beyond a reasonable doubt the absence of imperfect self-defense.” By its express terms, the instruction was only applicable if and after the jury found Duhon guilty of the charged crimes “or the lesser crimes of voluntary manslaughter and/or attempted voluntary manslaughter[.]” (See CALCRIM No. 3234 [as given, “If you find the defendant guilty of the crimes charged in Counts 1, 2, 3, 4, 5, and/or 6, or the lesser crimes of voluntary manslaughter and/or attempted voluntary manslaughter, you must then decide whether the People have proved the additional allegation that Gerald Duhon has engaged in violent conduct, to wit: firing multiple gunshots at an unarmed instruction generally forfeits the issue on appeal (see People v. Lee (2011) 51 Cal.4th 620, 638), that rule does not apply here. Duhon’s “claim that the instruction is not legally correct and therefore violates his right to due process of law ‘is not of the type that must be preserved by objection.’ [Citations.]” (People v. Hin (2025) 17 Cal.5th 401, 492.)

6 person or persons, which indicates he is a serious danger to society” (italics added)].) Read in conjunction with the other instructions given by the trial court—including CALCRIM Nos. 220 (reasonable doubt), 520 (first or second degree murder with malice aforethought), 521 (first degree murder), 505 (justifiable homicide: self-defense or defense of another), 571 (voluntary manslaughter: imperfect self- defense), 600 (attempted murder), and 604 (attempted voluntary manslaughter: imperfect self-defense)—there is no reasonable likelihood that the jury would have erroneously interpreted CALCRIM No. 3234 to apply in any manner to the elements required to prove the murder and attempted murder counts or to the issue of imperfect self-defense. (See People v. Parker (2025) 113 Cal.App.5th 1261, 1271 [appellate court “consider[s] the instructions as a whole and assume[s] that the jurors are intelligent persons capable of understanding and correlating all jury instructions given”].) Duhon also contends CALCRIM No. 3234 is argumentative because it “conveyed to the jury that the ‘violent conduct’ at issue in the case consisted of [him] (1) shooting at (2) unarmed victims.” “An instruction is argumentative when it recites facts drawn from the evidence in such a manner as to constitute argument to the jury in the guise of a statement of law. [Citation.]” (People v. Campos (2007) 156 Cal.App.4th 1228, 1244 (Campos).) “A jury instruction is improperly argumentative if ‘it would invite the jury to draw inferences favorable to the defendant [(or the prosecution)] from specified items of evidence on a disputed question of fact, and therefore properly belongs not in instructions, but in the arguments of counsel to the jury.’ [Citations.] ‘In a proper instruction, “[what] is pinpointed is not 7 specific evidence as such, but the theory of the defendant’s [(or the prosecution’s)] case.” ’ [Citation.]” (People v. Santana (2013) 56 Cal.4th 999, 1012.) Here, the instruction merely told the jury it had to determine whether certain facts alleged by the prosecution demonstrated that Duhon was “a serious danger to society.” The instruction left it to the jury to decide whether the alleged facts constituted a serious danger to society. As it did “not invite inferences favorable to either party” (Campos, supra, 156 Cal.App.4th at p. 1244), we detect nothing argumentative. Finally, Duhon’s reliance on People v. Schuller (2023) 15 Cal.5th 237 is unavailing. That case concerned whether the erroneous refusal to instruct on imperfect self-defense was prejudicial. (Id. at pp. 250–251.) Here, the trial court properly instructed the jury on imperfect self-defense, and we disagree that CALCRIM No. 3234 rendered that instruction ineffective. Because the trial court did not commit instructional error, we need not address Duhon’s arguments concerning whether any such error was prejudicial. II. Sentencing A. Additional background At the sentencing hearing, the trial court stated its tentative sentence as follows: On count 1, 50 years to life plus 10 years for the firearm enhancement; on count 2, 14 years to life plus 10 years for the firearm enhancement; on count 3, 14 years to life plus 10 years for the firearm enhancement; on count 4, 8 years plus 10 years for the firearm enhancement; on count 5, 3 years 4 months plus 1 year 4 months for the firearm enhancement; on count 6, 3 years 4 months plus 1 year 4 months for the firearm enhancement; and on count 7, 4 years.

8 The trial court explained that it “ha[d] considered the general objectives and sentencing under [rule] 4.410[,] [e]specially in protecting society, punishing the defendant, deterring future offenses, [and] preventing the defendant from committing new crimes by isolating him through the period of incarceration.” The court also “consider[ed] all the aggr[a]vating circumstances which were found true.” The court noted that “[t]here were no mitigating circumstances presented” but that it had considered Duhon’s age. The trial court indicated that it was “inclined to grant any motion to dismiss under [section] 1385 . . . based on the age of [Duhon’s] 1983 conviction[,]” Duhon’s “age[,] and the significant gap between that conviction and subsequent convictions.” The court recognized its discretion to impose concurrent sentences, but stated that it was inclined to impose consecutive sentences for counts 2 through 6 “based on the violent conduct represented by each count[] and [the] separate victims.” The court also noted that the aggravating factors that were found true “justif[ied] imposing the upper term on the firearm enhancement for each applicable count, as well as the upper term for count 4.” The court would also “impose both consecutive conduct enhancements for the personal use of a firearm for counts 1, 2, and 3” and found section 654 inapplicable to count 7. The trial court tentatively declined to exercise its discretion to dismiss the firearm enhancements under section 1385, explaining that it found “dismissal w[ould] endanger public safety.” The court explained that “specific deterrents [were] necessary and appropriate for this defendant based on the violent conduct in this case[,]” “[a]n earlier release as a result of dismissing any enhancement [would] likely result in physical 9 injury or serious danger to the public[,]” and the imposition “of terms for each enhancement [wa]s appropriate based on . . . finding[s] of violent conduct as directed to separate victims.” The People submitted on the trial court’s tentative. Defense counsel moved under section 1385 and People v. Superior Court (Romero) (1996) 13 Cal.4th 497 to strike both of defendant’s prior strike convictions. Counsel also asked the court to impose concurrent sentences on counts 2 through 6 “based on a single course of conduct.” The trial court struck one prior strike conviction but not a more recent strike and sentenced Duhon according to its tentative. B. Imposition of upper term sentences Duhon contends that the trial court’s imposition of upper term sentences on count 4 and the firearm enhancements violated his Sixth Amendment right to a jury trial because the sentencing decision was premised “in part” on the jury’s true finding on the rule 4.421(b)(2) aggravating factor about which the court purportedly erroneously instructed with CALCRIM No. 3234. We reject this argument because, as discussed, the court did not err when it instructed the jury. C. Failure to strike firearm enhancements Duhon also contends that the trial court abused its discretion by declining to strike the firearm enhancements. Although Duhon forfeited this contention by failing to raise it below (see People v. Coleman (2024) 98 Cal.App.5th 709, 724), we consider the merits to forestall his ineffective assistance of counsel claim (see People v. Welch (1999) 20 Cal.4th 701, 759– 760; People v. Monroe (2022) 85 Cal.App.5th 393, 400).

10 Under section 1385, a trial “court shall dismiss an enhancement if it is in the furtherance of justice to do so . . . .” (§ 1385, subd. (c)(1).) “In exercising its discretion” to dismiss an enhancement, “the court shall consider and afford great weight to evidence offered by the defendant to prove” the presence of enumerated “mitigating circumstances . . . . Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety.” (Id., subd. (c)(2), italics added.) In this context, “ ‘[e]ndanger public safety’ means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.” (Ibid.) We review a trial court’s decision whether to dismiss or strike an enhancement under section 1385 for abuse of discretion. (Nazir v. Superior Court (2022) 79 Cal.App.5th 478, 490 (Nazir).) “A trial court may abuse its discretion where ‘its decision is so irrational or arbitrary that no reasonable person could agree with it,’ ‘where the trial court was not “aware of its discretion” ’ to dismiss a sentencing allegation under section 1385, or ‘where the court considered impermissible factors in declining to dismiss.’ [Citations.]” (Nazir, supra, at p. 490.) We find no abuse of the trial court’s discretion. The court was not required to give great weight to any potentially applicable mitigating circumstance because it expressly found that dismissing the firearm enhancements would endanger public safety as “[a]n earlier release . . . [would] likely result in physical injury or serious danger to the public.” This was an eminently reasonable conclusion given that Duhon shot at an unarmed group of people, resulting in the death of one of the victims, and 11 the jury found that he had engaged in violent conduct indicative of the serious danger he posed to society (rule 4.421(b)(1)). Here, as “in most cases, ‘if the trial court finds that dismissal of an enhancement would endanger public safety, then it is hard to see how dismissal would further the interests of justice,’ notwithstanding the applicability of any mitigating factors identified . . . . [Citation.]” (People v. Walker (2024) 16 Cal.5th 1024, 1033.) Duhon argues that “dismissal of the enhancements could not possibly endanger public safety” because doing so would still result in a “sentence far exceed[ing] the human lifespan.” In support, he cites People v. Williams (2018) 19 Cal.App.5th 1057 (Williams), which concerned the denial of a petition for resentencing under section 1170.126. The Court of Appeal found that the trial court had abused its discretion “in determining that resentencing [the defendant] would pose an unreasonable risk to public safety” (Williams, supra, at p. 1061), reasoning that “[i]f a defendant’s term is still effectively life without parole after resentencing, then resentencing cannot pose an unreasonable risk to public safety” (id. at p. 1063). Not only is Williams procedurally and statutorily distinguishable, but in the instant case the trial court expressly stated that it had considered Duhon’s age. III. Alleged Ineffective Assistance of Counsel Finally, Duhon argues that his trial counsel was constitutionally ineffective because he did not object to CALCRIM No. 3234 or seek dismissal of the firearm enhancements. To establish ineffective assistance of counsel, a defendant must show that counsel’s performance was both deficient and prejudicial. (People v. Dunn (2025) 18 Cal.5th 129, 169.) “ ‘When 12 examining an ineffective assistance claim, a reviewing court defers to counsel’s reasonable tactical decisions, and there is a presumption counsel acted within the wide range of reasonable professional assistance.’ ” (People v. Barrett (2025) 17 Cal.5th 897, 1013–1014.) To establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” (Strickland v. Washington (1984) 466 U.S. 668, 694.) Duhon has not established that his trial counsel provided inadequate representation. We have found no instructional error, and the trial court’s detailed explanation of its sentencing decisions indicates that it was fully aware of the scope of its discretionary sentencing authority and weighed various factors in exercising that authority. Counsel could have reasonably determined that any additional argument at sentencing would be futile. (See People v. Price (1991) 1 Cal.4th 324, 387 [“Counsel does not render ineffective assistance by failing to make motions or objections that counsel reasonably determines would be futile”].) Nor is it reasonably probable that any omitted request or argument from counsel would have resulted in a more favorable outcome for Duhon. IV. Correction of the Abstract of Judgment The People identify a clerical error in the abstract of judgment. On count 1, instead of 50 years to life plus 10 years for the section 12022.5, subdivision (a) firearm enhancement, the abstract of judgment indicates that defendant was sentenced to 60 years to life. We order the trial court to amend the abstract of 13 judgment to correct this error. (See People v. Mitchell (2001) 26 Cal.4th 181, 185.)

DISPOSITION The matter is remanded for the trial court to prepare an amended abstract of judgment that indicates that Duhon was sentenced on count 1 to 50 years to life plus 10 years for the section 12022.5, subdivision (a) firearm enhancement. The court shall forward a certified copy of the amended abstract of judgment to the California Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

GOORVITCH, J.

We concur:

LUI, P. J.

RICHARDSON, J.