Filed 12/28/15 P. v. Guerra CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B254840

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA389571)
         v.

FREDY GUERRA,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County, Clifford
L. Klein, Judge. Affirmed with directions.
         David D. Carico, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and David
E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.


                                             ____________________
                                    INTRODUCTION


       Fredy Guerra appeals from a judgment of conviction entered after a jury found
him guilty of second degree murder (Pen. Code, § 187, subd. (a)) and found true the
allegations he personally used a firearm in the commission of the crime (id., § 12022.5,
subd. (a)) and personally and intentionally discharged a firearm in the commission of the
crime, causing great bodily injury or death (id., § 12022.53, subd. (d)). The trial court
sentenced Guerra to 15 years to life for the murder plus 25 years to life for the discharge
of a firearm causing great bodily injury or death. It stayed sentence on the firearm use
enhancement.
       On appeal, Guerra contends the trial court erred in refusing to instruct the jury sua
sponte on justifiable homicide in resistance of a forcible and atrocious felony, voluntary
manslaughter based on an actual but unreasonable belief of imminent danger of death or
great bodily injury, and that the firearm enhancement would not apply if the victim was
an accomplice to brandishing and discharge of a firearm from a motor vehicle. He also
contends he was deprived of the effective assistance of counsel by his attorney’s failure
to request these instructions. Finally, Guerra claims the abstract of judgment must be
corrected to delete the sex offender registration requirement (Pen. Code, § 290, subd. (c)).
We affirm the judgment of conviction and order that the abstract be corrected.


                               FACTUAL BACKGROUND


A. The Prosecution’s Case
       Guerra lived with his wife and four children on the second floor of a duplex at 232
West 50th Street in Los Angeles. His father-in-law owned the property and lived on the
first floor of the duplex. Carlos Flores lived in a trailer on the back of the property.




                                              2
       On the afternoon of Sunday, October 2, 2011, Guerra’s father-in-law, Flores,
Norberto, who also lived on the property, and Ramon,1 a neighbor, were sitting on the
front porch, drinking beer. Rodolfo Pineda later joined them. Flores and Pineda had four
or five beers each. Ramon and Flores drove Pineda to Southgate to deliver some money.
On the way back, they stopped and purchased $20 worth of cocaine, which they ingested
while they were in the car.
       Ramon, Flores and Pineda returned to the duplex. Guerra joined them at about
6:00 p.m. Guerra and Pineda knew each other, but they did not get along. Guerra and
Pineda often engaged in verbal sparring, but on this occasion they began grabbing each
other by the neck. Flores told them to stop and eventually they did. Guerra’s father-in-
law and Ramon left.
       Guerra had a bag of cocaine, and he, Flores, and Pineda went to Flores’ trailer and
ingested some of the cocaine. They also drank beer. At about 8:30 p.m., they decided to
drive to the liquor store to buy more beer. Guerra drove them in his wife’s SUV, with
Pineda in the front passenger seat and Flores in the back seat behind Pineda. When they
got to the liquor store, Pineda went inside to buy beer. Flores followed him because he
thought Pineda was too intoxicated to buy the beer. Guerra also went inside the store.
       They returned to the SUV, took their same seats, and Guerra began driving toward
the duplex. Instead of turning on 50th Street, he turned on 51st Street and then drove
onto the Harbor Freeway, heading south. At that point, Flores saw that Guerra had a .38
caliber handgun in his hand. Guerra reached outside the SUV with the gun and fired a
shot into the air. Pineda said he wanted to fire the gun. Guerra told him that he was not
competent to shoot the gun, meaning Pineda was too intoxicated to shoot it. Guerra got
off the freeway at Vernon Avenue and fired another shot into the air. Pineda kept telling
Guerra that he wanted to shoot the gun, and Guerra kept telling him he was not
competent and refused to allow him to do so.



1      The record is silent as to the last names of Norberto and Ramon.


                                            3
       Guerra drove back to the duplex. Flores got out of the SUV to open the gate, and
Guerra drove up the driveway and parked. Flores closed the gate and walked back to
where Guerra was parked. Guerra and Pineda had been arguing about the gun and were
angry with one another. Guerra grabbed Pineda’s head and told him, “no.” They began
head-butting one another forehead to forehead. After a few minutes, Flores told them to
stop, and they sat back in their seats.
       Pineda was then facing forward in his seat. Pineda said, “I don’t give a fuck if I
die.” Guerra asked, “You don’t give a fuck if you die?” Guerra then lifted the gun, put it
to the back of Pineda’s head, and fired a single shot. Pineda slumped forward. Flores
said, “You just killed [Pineda] dumbass. What did you do, dumbass?” Guerra told him,
“You killed him.”
       Flores went to the duplex, knocked on the door and told the lady inside to call the
police. At the same time, Guerra called 911. He told the operator that “somebody killed
someone right now, at 232 50th Street.” He said that a weapon was used, he did not
know what kind, and the victim was in the SUV. Guerra then went upstairs to his home
on the second floor of the duplex. Flores yelled at him and told him to “come down,
dumbass. The same way that you killed [Pineda], come and kill me.” Guerra’s wife
came downstairs, and Flores told her what happened. She told Flores to stop screaming.
       When the police arrived, Flores was waving his arms to flag them down. He
appeared to be angry and hysterical. He told them “Fredy just shot my friend.” He
pointed to Guerra, who was standing in the driveway, and said, “That’s Fredy.” Guerra
quickly went upstairs.
       Officers found Pineda in the SUV with a single gunshot wound to the left side of
the back of his head. Paramedics transported Pineda to the hospital, where he received
emergency treatment but died from the gunshot wound. A blood test revealed a blood
alcohol level of .19 and the presence of cocaine.
       Los Angeles Police Detective Michael Terrazas responded to the scene. He
observed blood spatter in the front seat of the SUV and on Guerra’s shirt and hat. Tests
confirmed that the blood on the shirt and hat matched Pineda’s.

                                             4
       Detective Ronald Berdin collected gunshot residue samples from Guerra and
Flores. There was gunshot residue on both of Guerra’s hands. There was no residue on
Flores’ hands.
       The police transported both Guerra and Flores to the police station, where they
were interviewed separately. In his interview, Flores explained what had happened. In
his interview, Guerra said that he did not fire a weapon or kill Pineda. He said he was
upstairs in the duplex when he heard a gunshot.
       The police then placed Guerra and Flores together in an interview room and
recorded their conversation. Flores asked Guerra why he was accusing him of killing
Pineda when he knew that he did it. Guerra responded, “That I know I did it?” Flores
said, “You did it.” Guerra responded, “I did it?” Flores asked, “And who did it? Who
pulled out the gun,” and “Who . . . was shooting in the street, then?” Guerra responded,
“I have a weapon, or you have a weapon?” Flores told him, “You have a weapon, I
don’t.” He also said Guerra had a “bad head” and “did not think.” Guerra responded,
“‘Bad head because you did not think.’ . . . You are the one who is saying that I did it.”
Flores said, “But you did it.” Eventually, Guerra said he was not going to argue with
Flores and would talk when the detective arrived.


B. The Defense Case
       Guerra testified in his own defense; he was the only defense witness. According
to Guerra, on the morning of October 2, 2011, he took his wife and children to a big box
store to buy some movies. Before leaving, he put a gun in the glove compartment of his
wife’s SUV, because he lived in a dangerous neighborhood. His uncle had given him the
gun a couple of weeks earlier. He did not know how to use it and had never fired it, but
his uncle had given him an instruction manual.
       Guerra and his family returned home about 3:30 p.m. He played in the backyard
with two of his children while his wife and the other children ran errands. Guerra did not
remove the gun from the glove compartment.



                                             5
       Guerra’s father-in-law, Flores, Pineda, Norberto, and Ramon were drinking beer in
a corner of the yard. Guerra eventually joined them and had a few beers. By 7:00 p.m.,
only Guerra, Flores, and Pineda remained. Flores and Pineda asked Guerra to drive them
to the liquor store. He drove them in his wife’s SUV. Pineda, who was in the front
passenger seat, opened the glove compartment to look for some CDs and found the gun.
He took it out and said, “Look what I found.” Guerra immediately took it from him.
Pineda asked for it back, because he wanted to shoot it. Guerra held onto it until they
arrived at the liquor store. After Pineda and Flores got out of the SUV, Guerra put the
gun under his seat.
       After they returned to the SUV, Pineda kept pestering Guerra for the gun all the
way back to the duplex. Guerra was concerned that the gun was not secure under his
seat, so he put it under his right leg. Pineda kept trying to pull the gun out from under
Guerra’s leg. Guerra did not drive on the freeway or shoot the gun on the way back to
the duplex.
       Flores got out of the SUV to open the gate when they got back to the duplex.
Guerra drove up the driveway and parked. Pineda kept insisting that Guerra give him the
gun. Flores got back into the SUV because he wanted to keep drinking in the vehicle.
Guerra’s children called out to him from upstairs to come inside for dinner and to watch
movies. Flores got out of the SUV and told Pineda, “Get out of the car, trash.” Pineda
told Flores to leave him alone and kept asking for the gun. Hoping to calm Pineda down,
Guerra told him, “You’re not competent to shoot it. Another day when you’re well,
probably.” Pineda asked, “You’re not going to give it to me?” Guerra, told him, “No, I
have to go up.” Pineda asked again, and Guerra told him “no. Another day.”
       Guerra pulled the keys out of the ignition and tried to get out of the car. Pineda
told him, “You’re worth shit,” and lunged at him. Pineda grabbed the gun and pulled it
away from Guerra. Guerra grabbed the gun and the two of them struggled to get hold of
the gun. Guerra kept telling Pineda to calm down, and Pineda kept telling him, “I give a
fuck if I die.” Pineda started head butting him; Pineda and Guerra were forehead to
forehead. After a couple of minutes, Pineda stopped and jerked backwards, pulling

                                             6
Guerra toward him. The gun went off, and Pineda slumped back into the seat. Guerra
was paralyzed and in shock that the gun had gone off. The gun had gone off accidentally,
his finger was not on the trigger.
       Eventually, Guerra let go of the gun, checked Pineda’s pulse, then called 911.
When he got out of the SUV, he put the gun on top of the vehicle. Flores accused him of
shooting Pineda. He was in shock and did not remember if he responded to Flores.
When the police arrived, he went upstairs to tell his family what had happened. He then
went downstairs, and the police handcuffed him and placed him in a patrol car.
       Guerra was still in shock when he was interviewed at the police station. He
acknowledged lying to the police about the shooting because he was afraid for his family.
He could not remember his conversation with Flores.


C. The Prosecution’s Rebuttal Case
       Detective Julio Benavides and Detective Terrazas attempted to locate the gun used
in the shooting but were unable to do so. Detective Benavides participated in the
interviews at the police station. Guerra seemed nervous and unconcerned about Pineda.
Flores was eager to talk to the police and expressed shock over Pineda’s death.


                                      DISCUSSION


A. Failure To Instruct on Justifiable Homicide in an Attempt To Resist a Felony
       1. Proceedings Below
       While discussing jury instructions, the trial court declared it was going to instruct
with CALCRIM No. 500 on general homicide principles and, at the People’s request,
CALCRIM No. 510 on excusable homicide due to accident. The trial court also stated it
would instruct on first or second degree murder and the effect of provocation (CALCRIM
Nos. 520, 521, 522). Finally, the trial court indicated it would instruct on voluntary
manslaughter based on heat of passion (CALCRIM No. 570), over the People’s



                                              7
objection, as well as involuntary manslaughter (CALCRIM No. 580). Defense counsel
did not object to these instructions or request additional instructions.
       Defense counsel specifically informed the court that he was not requesting an
instruction on self-defense. The trial court therefore declined to instruct the jury on self-
defense.
       Guerra contends the trial court erred in failing to instruct the jury, sua sponte, on
justifiable homicide in an attempt to resist a forcible and atrocious felony.


       2. Applicable Law
       “‘In criminal cases, even in the absence of a request, a trial court must instruct on
general principles of law relevant to the issues raised by the evidence and necessary for
the jury’s understanding of the case.’ [Citations.] ‘“A trial court’s duty to instruct, sua
sponte, on particular defenses arises ‘“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.”’” [Citation.]’
[Citation.] ‘[S]ubstantial evidence’ means evidence of a defense, which, if believed,
would be sufficient for a reasonable jury to find a reasonable doubt as to the defendant’s
guilt. [Citation.]” (People v. Givan (2015) 233 Cal.App.4th 335, 343-344; accord,
People v. Martinez (2010) 47 Cal.4th 911, 953.)
       Penal Code section 197 provides in part: “Homicide is also justifiable when
committed by any person in any of the following cases: [¶] 1. When resisting any
attempt to murder any person, or to commit a felony, or to do some great bodily injury
upon any person.” Although section 197 refers to “a felony,” case law has clarified that
the felony must be a forcible and atrocious crime that endangers human life. (People v.
Ceballos (1974) 12 Cal.3d 470, 477-479.)
       In order for a killing to constitute justifiable homicide, the defendant must be in
fear “‘of imminent danger to life or great bodily injury.’” (People v. Humphrey (1996) 13
Cal.4th 1073, 1082; see People v. Robertson (2004) 34 Cal.4th 156, 167-168, overruled
on another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201; People v. Minifie

                                              8
(1996) 13 Cal.4th 1055, 1068-1069; People v. Ceballos, supra, 12 Cal.3d at pp. 477-
478.) A defendant may use deadly force to prevent the commission of a crime, but
“[w]here the character and manner of the [crime] do not reasonably create a fear of great
bodily harm, there is no cause for exaction of human life [citations], or for the use of
deadly force [citation].” (Ceballos, supra, at p. 479.)


       3. Analysis
       Guerra contends that there is substantial evidence2 that he shot Pineda in resisting
an attempt to commit robbery and discharging a firearm in a negligent manner, requiring
the trial court to instruct sua sponte on justifiable homicide in resisting the commission of
a felony. We disagree.
       Robbery requires “(1) a taking of personal property, (2) from the person or
immediate presence of another, (3) through the use of force or fear, (4) with an intent to
permanently deprive the owner of his property. [Citations.]” (People v. Kelley (1990)
220 Cal.App.3d 1358, 1366; accord, People v. Clark (2011) 52 Cal.4th 856, 943; see also
CALCRIM No. 1600.) Both the prosecution and the defense evidence established that
Pineda merely wanted to shoot the gun; there was no evidence Pineda intended to
permanently deprive Guerra of the gun.3 Thus, there is no substantial evidence Guerra
shot Pineda while resisting an attempt to commit a robbery.
       “[W]illfully discharg[ing] a firearm in a grossly negligent manner which could
result in injury or death” is punishable as either a misdemeanor or a felony. (Pen. Code,


2      In arguing substantial evidence supported an instruction on justifiable homicide,
Guerra appears to be conceding that he did not rely on that defense in trial. (See People
v. Givan, supra, 233 Cal.App.4th at p. 343.)
3      We are not persuaded by Guerra’s argument that there was evidence Pineda
intended to deprive Guerra of the value of the gun thereby satisfying the permanent
deprivation of property element of the crime. Guerra’s argument that the firearm would
have been confiscated by the police if it had been used in the commission of a crime is
speculative and does not demonstrate Pineda’s intent.


                                              9
§ 246.3, subd. (a).) There was some evidence from which the jury could have found that
Guerra killed Pineda while resisting Pineda’s attempt to willfully discharge a firearm in a
grossly negligent manner. Pineda kept demanding to shoot the gun, and Guerra believed
Pineda was not competent, i.e., too intoxicated, to do so.
       Guerra points to no evidence, however, he feared that Pineda’s actions posed an
imminent danger to his life or the lives of others.4 He argues that under the
circumstances, he “likely would have believed that Pineda was a threat.” “Speculation is
not substantial evidence. [Citation.] ‘“To be sufficient, evidence must of course be
substantial. It is such only if it ‘“reasonably inspires confidence and is of ‘solid value.’”’
By definition, ‘substantial evidence’ requires evidence and not mere speculation. In any
given case, one ‘may speculate about any number of scenarios that may have
occurred . . . . A reasonable inference, however, may not be based on suspicion alone, or
on imagination, speculation, supposition, surmise, conjecture, or guess work. . . . A
finding of fact must be an inference drawn from evidence rather than . . . a mere
speculation as to probabilities without evidence.’”’ [Citation.]” (People v. Ramon
(2009) 175 Cal.App.4th 843, 851; accord, People v. Hajek and Vo (2014) 58 Cal.4th
1144, 1264 (conc. & dis. opn. of Kennard, J.); People v. Gonzales (2015) 232
Cal.App.4th 1449, 1466.)
       Guerra also argues that he was justified in shooting Pineda because “when Pineda
took the gun from [Guerra] his intent was to fire it in a residential area with people
present,” thus posing a threat to human life. Guerra relies on People v. Alonzo (1993) 13
Cal.App.4th 535, in which the defendant was charged with willfully discharging a



4       We acknowledge the trial court offered to give an instruction on self-defense. On
this record, however, the instruction was unwarranted. Guerra was not relying on self-
defense in defending the case, self-defense was inconsistent with his theory of the case
that the shooting was accidental and his counsel refused the instruction. Substantial
evidence did not support the defense as there was no evidence Guerra feared for his own
life or the lives of others and a reasonable jury could not have so concluded based on
Guerra’s testimony. (People v. Elize (1999) 71 Cal.App.4th 605, 615.)


                                              10
firearm in a grossly negligent manner which could result in injury or death after he shot a
gun into the air in a commercial area at 2:00 a.m. There were several businesses open in
the area at the time, and a witness testified that there was a lot of pedestrian traffic and
the area was “‘quite busy[.]’” (Id. at p. 538.) The court concluded the defendant’s
conduct was grossly negligent and “presented the possibility of hitting a member of the
public” under the circumstances of the case. (Id. at p. 540.)
       Here, according to Guerra’s testimony, Pineda lunged at Guerra as Guerra moved
to get out of the SUV. Pineda had control of the gun, if at all, for a moment. Thereafter,
Guerra grabbed the gun and a struggle ensued when Pineda “was trying to take it away
from [Guerra].” Pineda did not have possession of the gun, and therefore he had no
ability to discharge it in a residential area with people present.
       Without regard to Pineda’s lack of control over the gun, however, while the
shooting occurred in the driveway of the duplex where Guerra resided with his family,
there was no evidence as to whether there were people actually present in the area on that
late Sunday evening, where they were in relation to Pineda, and the possibility they
would be in danger from Pineda’s actions. After the shooting, Flores went to the first
floor of the duplex and knocked on the door to get help. Guerra went inside his home.
Guerra testified that “the first person [he] saw was one of [his] children” when he “went
upstairs.” Nothing suggested anyone other than Guerra, Pineda and Flores were in the
vicinity of the shooting. There was no evidence Guerra actually believed Pineda posed
an imminent threat to residents in the neighborhood and shot him to prevent him from
carrying out that threat.
       Absent substantial evidence that Guerra shot Pineda in resisting Pineda’s attempt
to discharge a firearm in a negligent manner because Guerra believed Pineda posed an
imminent danger to life, the trial court was not required to instruct sua sponte on
justifiable homicide in resisting the commission of a felony. (People v. Martinez, supra,
47 Cal.4th at p. 953; People v. Givan, supra, 233 Cal.App.4th at pp. 343-344.)




                                              11
B. Failure To Instruct on Voluntary Manslaughter Based on Unreasonable Self-
Defense or the Use of Unreasonable Force in Resisting a Felony
       1. Proceedings Below
       In discussing instruction on voluntary manslaughter, the trial court discussed
People v. Barton (1995) 12 Cal.4th 186 and People v. Elize, supra, 71 Cal.App.4th 605,
and stated, “[i]n both [of those] cases, the defendant said the gun went off accidentally,
not intentionally. And the court said that—especially in Barton[—]that you still had to
give a lesser included voluntary manslaughter [instruction] because the jury could believe
the evidence of the struggle and not believe the discharge was accidental. That’s
certainly something that could happen in this case and, therefore, they could look at the
intentional shooting in a struggle and find the lesser included. That’s what Barton
holds.”
       The trial court also noted that “[i]n Elize, the court said that the self-defense
instruction should have been [given] on request [and] distinguish between lesser
includeds, which has to be given if the evidence is there. And self-defense, which is
different—and several times, the defendant said they are not requesting self-defense. I
am distinguish[ing] the Elize situation as to self-defense and not giving self-defense. But
how do I not give voluntary manslaughter, in view of the Barton case?”
       The court concluded there was evidence from which “the jury could believe that
[Guerra] intentionally pulled that trigger. . . . And if they believe that he pulled the
trigger, but they do believe there was also a struggle, that’s the Barton case, that’s the
Elize case, then I have to give voluntary manslaughter, all right? They can believe part of
this testimony if they so choose. So I am going to give voluntary manslaughter [based on
heat of passion].”


       2. Applicable Law
       “A trial court must instruct on all lesser included offenses supported by substantial
evidence. [Citations.] The duty applies whenever there is evidence in the record from
which a reasonable jury could conclude the defendant is guilty of the lesser, but not the

                                              12
greater, offense. [Citations.] That voluntary manslaughter is a lesser included offense of
murder is undisputed. [Citations.] [¶] Imperfect self-defense, which reduces murder to
voluntary manslaughter, arises when a defendant acts in the actual but unreasonable
belief that he is in imminent danger of death or great bodily injury. [Citations.]” (People
v. Duff (2014) 58 Cal.4th 527, 561-562, italics added.) Substantial evidence requiring
instruction on the lesser included offense of voluntary manslaughter is “‘“‘evidence from
which a jury composed of reasonable [persons] could . . . conclude[]’” that the lesser
offense, but not the greater, was committed. [Citations.]’ [Citation.]” (People v. Moye
(2009) 47 Cal.4th 537, 553.)
       The duty 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. [Citations.] Just as the People have no legitimate interest in obtaining a
conviction of a greater offense than that established by the evidence, a defendant has no
right to an acquittal when that evidence is sufficient to establish a lesser included
offense.’ [Citation.]” (People v. Barton, supra, 12 Cal.4th at p. 195; accord, People v.
Breverman (1998) 19 Cal.4th 142, 154-155.)


       3. Analysis
       Under Barton, the fact that defense counsel declined an instruction on self-defense
does not relieve the trial court of its duty to instruct the jury on voluntary manslaughter
based on unreasonable self-defense if there is substantial evidence to support such an
instruction. As discussed, however, there is no substantial evidence Guerra actually
believed his life was in danger from Pineda, which is necessary to support an instruction
on voluntary manslaughter based on unreasonable self-defense.
       Guerra cites his statement to the court in a letter written after the verdict that
“[e]verything was [an] unfortunate accident trying to defend myself.” This is not
evidence introduced at trial which we can consider in making our determination as to
whether an instruction on voluntary manslaughter based on unreasonable self-defense
was required.

                                              13
       Guerra’s testimony was that the gun went off accidentally during a struggle while
Pineda “was trying to take it away from [Guerra].” As noted in People v. Curtis (1994)
30 Cal.App.4th 1337, 1358, generally “self-defense and accidental homicide are mutually
exclusive, a defendant who claims to have killed by accident while defending himself or
herself is not thereby entitled to jury instructions on self-defense.” (Accord, People v.
Villanueva (2008) 169 Cal.App.4th 41, 51 [“an accidental shooting is inconsistent with
an assertion of self-defense”].)
       In People v. Villanueva, supra, 169 Cal.App.4th 41, however, the court stated
“that a defendant’s assertion of accident may be disregarded by the jury in an appropriate
case, and will not foreclose jury instruction on self-defense when there [1] exists
substantial evidence that the shooting was intentional (and [2] met the other requirements
of self-defense). [Citations.]” (Id. at pp. 51-52.) Here, however, there was no substantial
evidence that the shooting was intentional “and met the other requirements of self-
defense.” (Id. at p. 51, italics added.) There was evidence that the shooting was
intentional from Flores, and the jury could have disbelieved Guerra’s testimony that the
gun fired accidentally, but there was no evidence that Guerra “‘actually, but
unreasonably, believed he was in imminent danger of death or great bodily injury’” when
he intentionally shot Pineda.5 (People v. Manriquez (2005) 37 Cal.4th 547, 582; see also
People v. Battle (2011) 198 Cal.App.4th 50, 72-73.)
       People v. Elize, supra, 71 Cal.App.4th 605 is instructive. In Elize, the defendant, a
security guard, was involved in an altercation with two women, one of whom may have
hit him with an object. The defendant’s gun fired, and a bullet went through one


5      Guerra argues Villanueva “posed a relatively similar factual scenario to this case.”
While there are similarities, we disagree Villanueva requires the instruction in this case.
In Villanueva, there was evidence the victim threatened to kill the defendant at their next
encounter. The defendant testified that he was “terrified” of the victim upon
subsequently encountering him later that day. Finally, after appearing to retreat from the
encounter by shifting his van into reverse, there was evidence the victim stopped and then
shifted his van into gear to drive forward toward the defendant as if he were going to run
over the defendant. (People v. Villanueva, supra, 169 Cal.App.4th at pp. 46-47.)


                                             14
woman’s clothing, although it did not injure her. The defendant testified the two women
attacked him with pipes. One of the women grabbed his gun from his holster, and he
attempted to point the gun upward. The gun fired, and the women fled. (Id. at pp. 607-
608.) The defense counsel requested an instruction on self-defense. Acknowledging the
defendant did not testify he acted in self defense, counsel argued based on the evidence
the defendant was hit and suffered a broken arm, the jury could find that the defendant
acted in self-defense. The trial court denied the request based on the defendant’s
testimony the gun fired accidentally. (Id. at p. 610.)
       After noting the “‘instructional distinction between defenses and lesser included
offenses,’” the court observed that “[d]efense counsel in Barton specifically requested
that no instructions be given on heat of passion manslaughter. The trial court
nevertheless instructed on heat of passion manslaughter, because substantial evidence
supported that lesser included offense. The Supreme Court in Barton affirmed, stating
that ‘“[t]he trial court must instruct on lesser included offenses . . . [supported by the
evidence] . . . , regardless of the theories of the case proferred by the parties.”’ [Citation.]
This conclusion was based on the underlying principle that ‘. . . the jury must be allowed
to “consider the full range of possible verdicts—not limited by the strategy, ignorance, or
mistakes of the parties,” so as to “ensure that the verdict is no harsher or more lenient
than the evidence merits.”’ [Citation.]” (People v. Elize, supra, 71 Cal.App.4th at
p. 612.)
       Applying these principles to the case before it, the Elize court found it “clear that
had the shot in question hit and killed one of the women, and had [the] defendant been
charged with murder, the trial court would not only have had a duty, but indeed a sua
sponte duty, to instruct on both heat of passion and unreasonable self-defense
manslaughter notwithstanding defendant’s claim that the gun fired accidentally. The fact
that defendant testified that the shot was accidental would not have precluded a sua
sponte duty to instruct on the lesser included offenses, as Barton makes clear. It is clear
that inconsistency between an instruction and a defendant’s testimony is no reason to
refuse an instruction, so long as substantial evidence supports the instruction, at least in

                                              15
the case of lesser included offenses.” (People v. Elize, supra, 71 Cal.App.4th at p. 612.)
Rather, “a lesser included instruction is required even though the factual premise
underlying the instruction is contrary to the defendant’s own testimony, so long as there
is substantial evidence in the entire record to support that premise.” (Id. at p. 615.)
       The court further stated that “[a]s to defenses, such as self-defense, the court must
instruct sua sponte only if there is substantial evidence of the defense and the defense is
not ‘inconsistent with [the] defendant’s theory of the case.’ [Citation.]” (People v. Elize,
supra, 71 Cal.App.4th at p. 615.) In the case before it, the court concluded “a jury could
find from the evidence presented that [the] defendant was sought out and attacked by two
angry women much larger than he, that he was being beaten with pipes, that this beating
accounted for his broken wrist, that one of the women tried to take his handgun, and that
he struggled with that woman while the other continued to beat him. A jury could
disbelieve [the] defendant’s testimony that the gun fired accidentally during this struggle.
A jury could find that [the] defendant fired the gun intentionally, hoping to end the attack
upon him either by hitting one of his assailants or by firing into the air to scare off his
attackers.” (Id. at pp. 615-616.) Because there was substantial evidence to support the
defense and the defendant requested an instruction on self-defense, the court concluded
that the jury should have been instructed on the defense. (Id. at p. 616.)
       Here, in the absence of any substantial evidence that Guerra was acting in
imminent danger of death or great bodily injury, and in view of counsel’s statement that
he did not want the jury instructed on self-defense, the trial court properly did not instruct
on imperfect self-defense under Elize. Under Elize and Barton, the trial court had a duty
to instruct the jury on the lesser included offense of voluntary manslaughter based on
imperfect self-defense only if there was substantial evidence that Guerra “‘actually, but
unreasonably, believed he was in imminent danger of death or great bodily injury’” when
he intentionally shot Pineda. (People v. Manriquez, supra, 37 Cal.4th at p. 582; People v.
Battle, supra, 198 Cal.App.4th at pp. 72-73.) Unlike Elize, here there was no evidence
Pineda attacked or threatened Guerra from which the jury could conclude Guerra
believed it was necessary to shoot Pineda to protect himself. Accordingly, instruction on

                                              16
voluntary manslaughter based on unreasonable self-defense was not required.
(Manriquez, supra, at p. 582; Battle, supra, at p. 74.)
       In support of his claim that the trial court also had a sua sponte duty to instruct the
jury on voluntary manslaughter based on the use of unreasonable force in resisting a
felony, Guerra states that “[t]he consensus in a number of states is that an unnecessary
killing in an attempt to prevent the commission of a felony is manslaughter and not
murder.” As he points out, however, this principle is rooted in those states’ manslaughter
statutes. (See, e.g., Stiles v. State (Okla. Crim. App. 1992) 829 P.2d 984, 991; State v.
Seifert (Wis. 1990) 454 N.W.2d 346, 349-350.) California’s voluntary manslaughter
statute contains no such provision. (See Pen. Code, § 192.)
       Guerra states that the Wisconsin case, Seifert, was cited with approval in People v.
Mejia-Lenares (2006) 135 Cal.App.4th 1437. However, Mejia-Lenares did not hold that
in California voluntary manslaughter may be committed by the use of unreasonable force
in resisting a felony. Rather, it relied on Seifert for the principle “that imperfect self-
defense was ‘never intended to cover situations . . . where it is entirely the defendant’s
mental disease or defect, not an error in judgment or perception or a negligently-formed
perspective of the situation, that motivates the defendant’s actions.’ [Citation.]” (Id. at
p. 1460.) This principle has no application here, and California law does not support
Guerra’s argument.


C. Failure To Instruct Regarding that the Firearm Enhancement Did Not Apply if the
Victim Was an Accomplice
       1. Background
       Guerra received a sentence enhancement of 25 years to life under Penal Code
section 12022.53, subdivision (d), for personally and intentionally discharging a firearm
in the commission of the crime, causing great bodily injury and death. That subdivision
provides a sentence enhancement for “any person who, in the commission of a [specified]
felony . . . , personally and intentionally discharges a firearm and proximately causes
great bodily injury, as defined in Section 12022.7, or death, to any person other than an

                                              17
accomplice . . . .” (Ibid., italics added.) The enhancement does not apply where the
victim was an accomplice to the intended crime, “the natural and probable consequence
of which was the intentional discharge of a firearm resulting in his own death.” (People
v. Flores (2005) 129 Cal.App.4th 174, 182.)
       The trial court instructed the jury on the enhancement pursuant to CALCRIM
No. 3150 but omitted any language regarding the fact that the enhancement did not apply
if the victim was an accomplice. Guerra contends this was error, in that there was
substantial evidence Pineda was an accomplice to the crimes of brandishing or
discharging a firearm from a motor vehicle, and his death was a natural and probable
consequence of these crimes.


       2. Applicable Law
       The trial court has the duty to instruct the jury “‘on the general principles of law
relevant to the issues raised by the evidence.’” (People v. Smith (2013) 57 Cal.4th 232,
239.) The court “‘has the correlative duty “to refrain from instructing on principles of
law which not only are irrelevant to the issues raised by the evidence but also have the
effect of confusing the jury or relieving it from making findings on relevant issues.”’”
(People v. Alexander (2010) 49 Cal.4th 846, 920.)
       An accomplice is a person “who is liable to prosecution for the identical offense
charged against the defendant . . . .” (Pen. Code, § 1111.) One “‘is liable to prosecution
for the identical offense’” if he fits the definition of a principal provided in Penal Code
section 31. (People v. Lewis (2001) 26 Cal.4th 334, 368-369; People v. Horton (1995) 11
Cal.4th 1068, 1113-1114.) That is, if he directly commits an act constituting an offense,
aids and abets commission of the offense or, although not present, advises and
encourages its commission, he fits the definition of a principal. (Pen. Code, § 31.)
       A person may be held liable as an aider and abettor when, with knowledge of the
perpetrator’s criminal purpose, he gives the perpetrator aid or encouragement with the
intent of facilitating the perpetrator’s commission of the crime. (People v. Mendoza
(1998) 18 Cal.4th 1114, 1123; People v. Miranda (2011) 192 Cal.App.4th 398, 407.)

                                             18
Mere presence at the scene and knowledge that the crimes are being committed is
insufficient to impose liability for aiding and abetting. (People v. Swanson-Birabent
(2003) 114 Cal.App.4th 733, 744; see also Miranda, supra, at p. 407.)


       3. Analysis
       Guerra argues that there is substantial evidence “that Pineda instigated,
encouraged and perhaps even facilitated the crimes of brandishing and discharge of a
firearm from a motor vehicle.” Specifically, there was evidence that Pineda, Guerra and
Flores “were all engaged in a pattern of criminal conduct which included purchasing and
ingesting a controlled substance (cocaine) . . . , assault (grabbing each other by the neck
and head-butting) . . . , and discharge of a firearm from a motor vehicle . . . [.] Pineda
instigated the crime of ‘carrying a loaded firearm on the person or in a vehicle while . . .
on any public street . . .’ in violation of [Penal Code] section 25850 when he took the gun
out of the vehicle glove compartment. . . . Pineda’s criminal conduct instigated and
encouraged any brandishing allegedly committed by [Guerra].”
       We disagree with Guerra’s characterization of the evidence. More importantly,
the evidence Guerra cites does not provide substantial evidence that Pineda aided and
abetted Guerra’s crimes of brandishing and discharging a firearm from a motor vehicle.
If Flores’ testimony is believed, Guerra, Pineda, and Flores used cocaine together, and
Guerra and Pineda were fighting with one another, but at the time they got into the SUV
to go to the liquor store, neither Flores nor Pineda knew that Guerra had a handgun in the
vehicle. They did not know about the handgun until Guerra took it out and fired into the
air while on the freeway. At that point, Pineda did not encourage Guerra to keep firing or
brandishing the gun; he kept asking for the gun so he could fire it. Moreover, Pineda was
not killed while Guerra was brandishing or discharging the gun from the SUV.
       If Guerra’s testimony is believed, Guerra was already guilty of carrying the
handgun in a vehicle on a public street when Pineda discovered the gun in the glove
compartment. Guerra testified that he did not fire the gun from the SUV as they were
driving to the duplex; he put it under his leg to keep it away from Pineda. Once they

                                             19
arrived at the duplex, there was a struggle over the gun and Pineda was killed. Again,
there was no substantial evidence that Pineda aided and abetted Guerra in any criminal
conduct, the natural and probable consequences of which were that someone would be
shot.
        In his reply brief, Guerra notes that the jury was instructed on involuntary
manslaughter based on Guerra’s commission of the crime of brandishing a firearm and
acting with criminal negligence, meaning that he acted in a reckless way that created a
high risk of death or great bodily injury. (CALCRIM No. 580.) He claims that “[t]he act
of brandishing referred to in the court’s instruction . . . was the brandishing that occurred
in [the] van immediately before the homicide, and not the brandishing and discharge of a
firearm that allegedly occurred on the freeway.”
        Brandishing a firearm is drawing or exhibiting a firearm “in a rude, angry, or
threatening manner” or “ unlawfully us[ing a] . . . firearm in any fight or quarrel.” (Pen.
Code, § 417, subd. (b).) Guerra does not explain how Pineda aided and abetted Guerra’s
brandishing a firearm in the SUV in the driveway, given the evidence that if Guerra
brandished the weapon, it was in threatening Pineda. Rather Guerra argues that
“Pineda’s death was a natural and probable consequence of [Pineda’s] attempt to
discharge the firearm from a motor vehicle. Were it not for his demands to discharge the
firearm and his struggle with [Guerra] to obtain the firearm, he would not have been
killed.” That Pineda fought with Guerra over the gun in an attempt to shoot it himself is
not evidence that he aided or encouraged Guerra’s brandishing a firearm in the SUV with
the intent of facilitating Guerra’s commission of that crime. (People v. Mendoza, supra,
18 Cal.4th at p. 1123; People v. Miranda, supra, 192 Cal.App.4th at p. 407.)
        There was no evidence Pineda was an accomplice in Guerra’s brandishing or
discharging a firearm from a motor vehicle. Therefore, the trial court was not required to
instruct the jury that the Penal Code section 12022.53, subdivision (d), firearm
enhancement did not apply where the victim was an accomplice. (People v. Alexander,
supra, 49 Cal.4th at pp. 920-921.)



                                             20
D. Other Issues
       The People argue that Guerra’s claims of instructional error are forfeited on appeal
by his counsel’s failure to request such instructions. (People v. Virgil (2011) 51 Cal.4th
1210, 1260.) As Guerra points out, we may review any claim of instructional error that
affects a defendant’s substantial rights, whether or not there was an objection to the
instruction at trial. (Pen. Code, § 1259; People v. Lopez (2011) 199 Cal.App.4th 1297,
1304, fn. 35; see also People v. Trujillo (2015) 60 Cal.4th 850, 856 & fn. 4.) Because we
conclude there was no instructional error, we need not address the forfeiture argument.
(People v. Johnson (2015) 60 Cal.4th 966, 993.)
       Guerra contends the cumulative effect of the foregoing errors requires reversal of
his conviction. Inasmuch as we have found no error, Guerra’s claim of cumulative error
fails. (People v. Burgener (2003) 29 Cal.4th 833, 867; People v. Phillips (2000) 22
Cal.4th 226, 244.)
       Guerra further contends that he was deprived of the effective assistance of counsel
by his trial counsel’s failure “to request instructions explaining that [Guerra] was engaged
in a lawful activity when he resisted Pineda’s efforts to rob [Guerra] of his firearm in
order to discharge it from a motor vehicle,” and “the lesser included offense of voluntary
manslaughter based upon a theory of unnecessary use of deadly force in resisting a
felony.”
       “‘To establish ineffective assistance of counsel under either the federal or state
guarantee, a defendant must show that counsel’s representation fell below an objective
standard of reasonableness under prevailing professional norms, and that counsel’s
deficient performance was prejudicial, i.e., that a reasonable probability exists that, but for
counsel’s failings, the result would have been more favorable to the defendant.
[Citations.]’ [Citation.]” (In re Roberts (2003) 29 Cal.4th 726, 744-745.) Because
Guerra was not entitled to the instructions at issue, his counsel’s failure to request them
did not fall below an objective standard of reasonableness and did not constitute
ineffective assistance of counsel. (People v. Ledesma (2006) 39 Cal.4th 641, 748.)



                                              21
       It appears that to a certain extent, Guerra’s claims of instructional error and
ineffective assistance of counsel arise from his trial counsel’s decision not to rely on the
defense of imperfect self-defense or to present any evidence on self-defense. There is
nothing in the record to show counsel’s reason for this decision.
       “[W]here the record on direct appeal ‘does not show the reason for counsel’s
challenged actions or omissions, the conviction must be affirmed unless there could be no
satisfactory explanation.’ [Citation.] Under such circumstances, a claim of ineffective
assistance is generally rejected on direct appeal and more properly raised in a petition for
habeas corpus, which can include declarations and other information outside the appellate
record that reveal the reasons for the challenged conduct. [Citation.]” (People v.
Witcraft (2011) 201 Cal.App.4th 659, 664-665; see People v. Gray (2005) 37 Cal.4th
168, 211.) Because there could be a satisfactory explanation for counsel’s decision, such
as the absence of any evidence that Guerra acted in self-defense, any challenge to
counsel’s decision and the results of that decision would have to be made via a petition
for writ of habeas corpus.
       Finally, Guerra asserts, and the People agree, that the abstract of judgment must be
corrected to delete the sex offender registration requirement (Pen. Code, § 290, subd. (c)).
Since Guerra was not convicted of one of the enumerated sex offenses and the trial court
did not order that he register as a sex offender, the abstract of judgment must be corrected
to delete the registration requirement. (People v. Mitchell (2001) 26 Cal.4th 181, 185.)




                                             22
                                    DISPOSITION


      The judgment is affirmed. The trial court is directed to correct the abstract of
judgment to delete the sex offender registration requirement and to forward a copy of the
corrected abstract of judgment to the Department of Corrections and Rehabilitation.



                                                 BECKLOFF, J.*


We concur:



             PERLUSS, P. J.



             ZELON, J.




*       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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