People v. Vigil CA1/5

Filed 9/29/23 P. v. Vigil CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A164977 v. DAVID RICHARD VIGIL, (Alameda County Super. Ct. No. 178803) Defendant and Appellant.

In September 2015, defendant and appellant David Richard Vigil (appellant) and a companion fired 13 bullets into a parked vehicle at close range, killing the driver and passenger. As to the driver, a jury convicted appellant of voluntary manslaughter on a sudden quarrel/heat of passion theory (Pen. Code, § 192, subd. (a)).1 As to the passenger, the jury convicted appellant of second degree murder (§ 187). The jury also convicted appellant of shooting into an occupied vehicle (§ 246). Appellant’s motion for new trial was denied. In April 2022, the trial court sentenced appellant to 30 years to life in prison on the charge of shooting into an occupied vehicle, comprised of five years on the charge and a 25-years-to-life firearm enhancement (§ 12022.53, subd. (d)). The court also imposed sentences for the voluntary manslaughter

1 All undesignated statutory references are to the Penal Code.

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and murder convictions, with enhancements, that were stayed under section 654. Surveillance video admitted into evidence at trial showed that, on the night in question, appellant slowly drove past the victims’ parked car, then reversed and pulled alongside the parked car for almost 30 seconds, then moved forward to allow another car to pass, and then reversed and parked alongside the victims’ car. Appellant and his companion exited the car, appellant approached the victims’ vehicle on foot, and then appellant reached into the driver’s window of the parked car. Immediately thereafter, appellant stepped back and repeatedly fired a gun into the parked car, as did his companion. From the video, it appears the firearms possessed by appellant and his companion were readily available as they approached the victims’ car. Appellant was also shot. When the police responded to the scene, they found the driver had a firearm in his lap and they found one bullet casing that matched the gun. At trial, appellant testified that when he first approached the parked car, he asked to buy marijuana and the driver responded, “Well, who the fuck are you?” He further testified that, when he approached the parked car on foot (after allowing another car to pass), he reached in because he saw the driver pulling out a firearm. Appellant then pulled out his gun and shot into the parked car because he believed his life was in danger. On appeal, appellant first contends the trial court erred in instructing the jury pursuant to CALCRIM No. 3471 that, “A person who starts a fight has a right to self-defense only if . . . He actually and in good faith tried to stop fighting . . . .” Appellant argues that no substantial evidence supported the giving of the instruction (People v. Wilson (2005) 36 Cal.4th 309, 331) and that there is a reasonable probability the jury relied on the instruction in