Filed 11/7/14 P. v. McKoy CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     FIFTH APPELLATE DISTRICT


THE PEOPLE,
                                                                                           F065513
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF135087A)
                   v.

LYNDON RUSHELL MCKOY,                                                                    OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Gary T.
Friedman, Judge.

         Michelle May Peterson, under appointment by the Court of Appeal, for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and Alice
Su, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                      INTRODUCTION1
       Defendant Lyndon Rushell McKoy was charged with first degree murder, three
counts of attempted murder, discharging a firearm at an occupied vehicle, and being a
felon in possession of a firearm. A number of further allegations were also made. Prior
to trial, defendant pled no contest to being a felon in possession of a firearm. Following
jury trial, defendant was convicted of second degree murder and negligently discharging
a firearm (both lesser included offenses of the greater charged offense). He was acquitted
of the attempted murder charges. Defendant was sentenced to a total of 40 years to life.
       On appeal, defendant argues the trial court erred in failing to instruct the jury
regarding a lesser included offense to murder—that an unintentional and nonmalicious
killing during a felonious assault constitutes involuntary manslaughter. Further,
defendant contends there was insufficient evidence to support his conviction for second
degree murder.
       In affirming defendant’s conviction, we find the trial court did not commit
instructional error. Moreover, we find defendant’s conviction for second degree murder
to be supported by sufficient evidence.
                                FACTUAL BACKGROUND
The Testimony of the Passengers in the GMC Yukon
       About 9:30 p.m. on December 29, 2010, Nathaniel Jones III (driver), his cousin
Artis Hammond (front seat passenger), stepson Shaahid Robinson (back seat passenger)
and son Nathaniel Bruce Jones2 (Little Nate; back seat passenger) placed orders at the

       1When    defendant filed his opening brief in April 2013, the California Supreme Court had
not yet issued its opinion in People v. Bryant, considering whether a killing without malice in the
commission of an inherently dangerous assaultive felony could be voluntary manslaughter. That
opinion was filed June 3, 2013 (People v. Bryant (2013) 56 Cal.4th 959). In his reply brief of
August 2013, defendant incorporated and presented argument relative to the Bryant decision, and
refined the arguments presented in the opening brief on that basis. Hence, our focus is on those
arguments that remain viable in the wake of the Bryant decision.
       2At   the time of trial in May 2012, Shaahid Robinson was 15 years old and Little Nate
was 12 years old. Shaahid’s mother was in a relationship with Jones so Shaahid thought of Jones
as his stepfather and Little Nate as his stepbrother.


                                                2.
drive-through window of a Taco Bell restaurant in Bakersfield. While Jones was
checking the accuracy of their orders, and before leaving the drive-through lane, the
driver of a white Saturn sedan in line behind Jones’s Yukon honked his horn3 or
otherwise expressed his displeasure with having to wait.4 That driver was identified as
defendant.5 A verbal altercation occurred between Jones and defendant before the two
departed the drive-through lane.
       Specifically, Jones exited the Yukon and walked back toward defendant’s Saturn.
Hammond exited the Yukon shortly thereafter. Shaahid opened his door, but did not get
out of the Yukon; Little Nate did not exit the vehicle. Words were exchanged. Shaahid
heard defendant say he wanted to go home; Little Nate heard his dad and defendant
arguing, but he could not hear specifics. When Hammond walked up, the conversation
between Jones and defendant was over. Hammond asked the driver if his passenger was
his daughter or his girlfriend. When defendant replied affirmatively, Hammond testified:
“I put my hands up like I’m sorry, I didn’t mean, you know, to get you in harm or nothing
’cause it’s no big deal, you know what I mean.” Both he and Jones then returned to the
Yukon. Eventually both vehicles exited the Taco Bell drive-through. Hammond
believed the Saturn headed toward the exit and onto H Street.
       Jones then parked the Yukon at a HomeTown Buffet located in the same lot as the
Taco Bell. Shaahid and Little Nate testified that Jones got out of the Yukon to fix the
driver’s side window, whereas Hammond recalled Jones stopping because the vehicle
was overheating.6 All three passengers agreed Jones had exited the Yukon and was

       3Subsequent   testimony indicated the Saturn was either not equipped with a horn, or the
horn did not work.
       4Shaahid    testified defendant “flipped off” Jones. On cross-examination, Little Nate
recalled telling the detective that the suspect “flipped his dad off.”
       5Shaahid   and Little Nate identified defendant as the driver of the Saturn. Hammond was
asked if the driver of the Saturn was in the courtroom and he replied “no.”
       6In the defense case, a detective testified the Yukon would not start in the police yard on
January 5, 2011, and it had to be jump started.


                                                3.
outside of the vehicle when defendant returned. Defendant pulled the Saturn in behind
the Yukon. No words were exchanged between the two on this occasion. Defendant got
out of his car and began shooting. Shaahid grabbed Little Nate to cover him; Little Nate
ducked. Hammond was telling both boys to get down, and pushing them with his hand.
A window was shattered by the gunfire. Defendant got back into the Saturn and drove
off. Shaahid and Little Nate ran into the nearby Rusty’s Pizza to call police. Hammond
checked on Jones. Jones did not survive.
The Testimony of the Passenger in the Saturn
       Rena Horns had dated defendant for two years and they lived together in
Bakersfield. On the evening of December 29, 2010, she and defendant went to Taco
Bell. In the drive-through lane, the occupants of a Yukon ahead of them were taking a
long time. Defendant flashed his headlights, signaling the driver to move. As a result,
defendant and a number of individuals in the Yukon became involved in a verbal
altercation.
       In response to the flashed headlights, the Yukon’s driver exited and stepped back
toward the Saturn’s hood. He asked, “‘[W]hat’s your problem, I’ll move when I’m
ready,’” “‘why are you getting out the car, like you hard,’” and “‘you don’t want that,
you don’t want none.’” Horns said another two men exited the Yukon. Defendant, who
was standing by the driver’s side door of the Saturn, replied he was just trying to get his
food so he could go home. One of the others who exited the Yukon asked defendant if
Horns was his girlfriend. Defendant said yes, and the Yukon occupants laughed and got
back in the vehicle.
       Instead of pulling away and simply exiting the drive-through, however, the driver
of the Yukon would press the brakes and stop, moved forward again, then press the
brakes and stop. Horns told defendant “let’s go, let’s go,” once they got past the Yukon.
Defendant exited the parking lot onto the street, but then went behind the building that
housed HomeTown Buffet and Rusty’s Pizza. Once behind the building, he parked, got
out of the car, and opened the trunk. Horns did not see what defendant retrieved from the

                                             4.
trunk. However, when he got back in the car, defendant said, “‘I’m gonna blast that fool,
he’s following us, stuff like that.’” Horns again told defendant, “let’s go, let’s go home,
forget about it.” Instead, defendant drove back to the main parking lot and stopped
behind the Yukon.
       The driver of the Yukon was standing outside of the vehicle. He “kinda, you
know, put his hand as if he was reaching for something.” That was when defendant
began shooting. Horns never saw a weapon that evening. She testified defendant was
“scared, worried, [and] angry” that night.
       After the shooting, Horns and defendant left the parking lot and went home, where
they stayed for the remainder of the evening.
The Events Following the Shooting
       Following an autopsy, it was determined the victim’s death was caused by
multiple gunshot wounds. More specifically, Jones suffered the following: a penetrating
wound to the left groin, pelvic cavity and hip; a perforating wound to the pelvis; a
perforating distant-range wound of the left hand; and a perforating distant-range wound
of the left fourth finger. The pelvic area wounds compromised the left and right iliac
arteries and veins, resulting in major blood loss.
       Bakersfield Police Detective Kevin Findley was lead investigator. He was assisted
by Detective James Moore. Two shell casings were found at the scene near the Yukon.
A third shell casing was recovered later from the Saturn. Bullet fragments were also
recovered during the victim’s autopsy. Further, a bullet struck the passenger side console
or dash of the Yukon and eventually a bullet fragment was recovered from that area.
       Bakersfield Police Officer Kenneth Sporer was taking part in a grid search of
nearby neighborhoods the day after the shooting. Police were trying to locate a white
Saturn sedan matching the suspect vehicle description. Sporer found a vehicle matching
the description in the 4300 block of Vern Street; he notified Detective Findley.
Thereafter, defendant and another individual were observed getting into the vehicle while



                                             5.
it was under surveillance. The Saturn was stopped by law enforcement. Defendant and
his passenger Horns were subsequently arrested and questioned.
         Horns gave a statement to Findley. She told him defendant was angry that night;
she never told the detective defendant was scared or worried. Horns permitted detectives
to search the room she shared with defendant and directed them to a firearm located
underneath a dresser. Ballistics tests showed the shell casings found at the scene of the
incident and in the Saturn matched the weapon found in the room defendant shared with
Horns.
         Findley interviewed defendant twice; an audio recording of the second interview
was played for the jury. In that statement, defendant admitted “yelling” at the occupants
of the Yukon to move. He flashed his headlights but the Yukon did not move enough to
allow him to exit. Defendant told Findley that he then “said something like um hurry up
mutha fuckin nigga.” The driver hopped out, the passenger door opened, and then “they
were just talking shit” to him, standing near the hood of defendant’s car. Horns tried to
convince defendant to let it go. Instead, he got out of the car and the Yukon’s driver
“kept saying you don’t want this you don’t want this you don’t want none of this.”
Defendant stated he just wanted to go home and eat. The Yukon occupants returned to
their vehicle as if to leave, but they stopped and started the vehicle, “trying to aggravate”
defendant. Defendant continued to flash his headlights. Eventually the Yukon and its
driver “finally … just moved off and … he made a left and he stopped.” Defendant then
parked in front of Taco Bell to eat, but the Yukon occupants “stopped right in front of
[them]” and the driver got out of his vehicle again as if to come after defendant and
Horns. Both parties then took off again. When defendant passed the Yukon, he “was
already mad” and feeling disrespected.
         In that statement to Findley, defendant admitted telling Horns he was “going to
blast him like I’m going to blast him.” Horns told him not to do it, but defendant
stopped, opened the trunk, got the gun, and noticed the Yukon parking. Defendant then
went around and parked his car where he could see the Yukon. He cocked the gun and

                                              6.
the driver got out of the Yukon. Defendant thought the driver was reaching for
something.7 He wanted to scare him. And then defendant “just started shooting.” He
recalled letting “two off” and seeing the driver fall to the ground. Then defendant
jumped back in his car and took off “through the back streets” until he and Horns reached
home. Once home, defendant hid the Smith & Wesson nine-millimeter handgun under
his dresser.
       Defendant claimed what he meant by wanting to “blast them” was that he “wanted
to shoot these guy[s]” because he believed if he did not have the gun and if Horns was
not present, they would have fought him or jumped him. He got upset and knowing he
had the gun made it an “easier choice,” although he did not intend to “kill the guy.”
Defendant said the driver did “something with his sweater,” leading defendant to believe
he, too, had a gun. Defendant claimed he did not say anything to the driver, but the
driver was saying “I told you, you don’t want none of this” before defendant began
shooting. Further, defendant did not realize there were kids in the Yukon; he thought the
occupants were all adults. As they left the area after the shooting, Horns told defendant
there had been kids inside the Yukon.
       Defendant told Findley he knew what he was doing was wrong. But he wanted to
“prove a point” that he should not be underestimated. Defendant thought he shot the
driver in the arm. He admitted again that he told Horns he was going to “blast him” and
repeated he did not intend to kill the driver. Defendant was not under the influence of
drugs or alcohol; he was just angry.
                                             DISCUSSION
I.     The Alleged Instructional Error
       Defendant contends the trial court failed to properly instruct the jury regarding
manslaughter. Relevant here, the jury was instructed regarding the general principles of
homicide, first and second degree murder with malice aforethought, first degree murder,

       7No     one in the Yukon had a gun.


                                                 7.
voluntary manslaughter: heat of passion, and voluntary manslaughter: imperfect self-
defense. (CALCRIM Nos. 500, 520, 521, 570, 571.)
Applicable Legal Standards
       “Murder is the unlawful killing of a human being … with malice aforethought.”
(Pen. Code,8 § 187, subd. (a).) Murder is divided into first and second degree murder.
(§ 189; People v. Chun (2009) 45 Cal.4th 1172, 1181.) First degree murder is a “willful,
deliberate, and premeditated killing.” (§ 189.) “Second degree murder is defined as the
unlawful killing of a human being with malice aforethought, but without the additional
elements—i.e., willfulness, premeditation, and deliberation—that would support a
conviction of first degree murder. [Citations.]” (People v. Nieto Benitez (1992) 4 Cal.4th
91, 102; see People v. Swain (1996) 12 Cal.4th 593, 600.) There are three theories of
second degree murder: unpremeditated murder with express malice; implied malice
murder; and second degree felony murder. (People v. Swain, supra, at p. 601.)
       Malice aforethought “may be express or implied.” (§ 188.) Malice may be, and
usually must be, proved by circumstantial evidence. (See People v. Lashley (1991) 1
Cal.App.4th 938, 945–946; People v. James (1998) 62 Cal.App.4th 244, 277.) Malice is
express “‘when there is manifested a deliberate intention unlawfully to take away the life
of a fellow creature.’” (People v. Swain, supra, 12 Cal.4th at p. 600; People v. Nieto
Benitez, supra, 4 Cal.4th at p. 102.) “Express malice murder requires an intent to kill.
[Citations.]” (People v. Bohana (2000) 84 Cal.App.4th 360, 368.) Malice is implied
“‘when the killing results from an intentional act, the natural consequences of which are
dangerous to life, which act was deliberately performed by a person who knows that his
conduct endangers the life of another and who acts with conscious disregard for life’
[citation].” (People v. Lasko (2000) 23 Cal.4th 101, 107; see People v. Swain, supra, at
p. 602.) Implied malice does not require an intent to kill. (People v. Lasko, supra, at p.
107; People v. Bland (2002) 28 Cal.4th 313, 327.) A defendant acts with implied malice

       8Further statutory references   are to the Penal Code unless otherwise indicated.


                                                 8.
when he acts with an awareness of endangering human life. (People v. Knoller (2007) 41
Cal.4th 139, 143, 153.)
       Both voluntary and involuntary manslaughter are lesser included offenses of
murder. (People v. Thomas (2012) 53 Cal.4th 771, 813; People v. Rios (2000) 23 Cal.4th
450, 460.) “The lesser included offense of manslaughter does not include the element of
malice, which distinguishes it from the greater offense of murder. [Citation.]” (People v.
Cook (2006) 39 Cal.4th 566, 596.)
Voluntary Manslaughter
       Initially, defendant argued that the trial court erred in failing to sua sponte instruct
the jury on the lesser included offense of voluntary manslaughter, where the killing was
the result of an inherently dangerous assault committed in the absence of malice.
Defendant relied upon People v. Garcia (2008) 162 Cal.App.4th 18 to support his
argument.
       In Garcia, the defendant assaulted the victim with the butt of a gun, causing the
victim to strike his head on the pavement and suffer fatal injuries. The defendant argued
he had only meant to hurt the victim and not to kill him. The jury was instructed on
murder and the lesser included offense of voluntary manslaughter based on provocation
or imperfect self-defense. The defendant was convicted of voluntary manslaughter. On
appeal, the defendant argued the trial court had a sua sponte duty to instruct the jury on
involuntary manslaughter because there was substantial evidence the victim was killed
without malice, i.e., without either an intent to kill or a conscious disregard for human
life. (People v. Garcia, supra, 162 Cal.App.4th at p. 26.) That court rejected the
defendant’s involuntary manslaughter argument. In doing so, however, Garcia stated
that “an unlawful killing during the commission of an inherently dangerous felony, even
if unintentional, is at least voluntary manslaughter.” (Id. at p. 31.)
       As noted earlier, after defendant filed his opening brief in this matter, on June 3,
2013, the California Supreme Court issued its opinion in People v. Bryant, supra, 56
Cal.4th 959. The high court rejected the Fourth District Court of Appeal’s interpretation

                                              9.
of voluntary manslaughter and disapproved Garcia. Bryant explained: “A defendant
commits voluntary manslaughter when a homicide that is committed either with intent to
kill or with conscious disregard for life—and therefore would normally constitute
murder—is nevertheless reduced or mitigated to manslaughter. [Citation.]” (People v.
Bryant, supra, at p. 968.) “Although we have on occasion employed somewhat different
formulations to define the offense of voluntary manslaughter, we have never suggested
that it could be committed without either an intent to kill or a conscious disregard for
life.” (Id. at p. 969.)
       Bryant clarified that the court had never held “that a defendant may be found
guilty of voluntary manslaughter when he kills unintentionally and without conscious
disregard for life.” (People v. Bryant, supra, 56 Cal.4th at p. 970.)

       “A defendant who has killed without malice in the commission of an
       inherently dangerous assaultive felony must have killed without either an
       intent to kill or a conscious disregard for life. Such a killing cannot be
       voluntary manslaughter because voluntary manslaughter requires either an
       intent to kill or a conscious disregard for life. To the extent that People v.
       Garcia … suggested otherwise, it is now disapproved. [¶] Because a
       killing without malice in the commission of an inherently dangerous
       assaultive felony is not voluntary manslaughter, the trial court could not
       have erred in failing to instruct the jury that it was.” (Ibid.)
       In light of the foregoing, any argument that the trial court was required to instruct
the jury on Garcia’s nonstatutory version of voluntary manslaughter is foreclosed.
Clearly then, there was no error in this case as the trial court did not have a sua sponte
duty to so instruct the jury.
Involuntary Manslaughter
       Recognizing the Bryant decision forecloses his claim of instructional error
regarding voluntary manslaughter, defendant’s reply brief focuses instead on an argument
that the trial court was required to instruct the jury sua sponte regarding involuntary
manslaughter. He reasons if Bryant held such conduct is not voluntary manslaughter,
then it could only be involuntary manslaughter.



                                             10.
       “Involuntary manslaughter is manslaughter during ‘the commission of an unlawful
act, not amounting to a felony,’ or during ‘the commission of a lawful act which might
produce death, in an unlawful manner, or without due caution and circumspection.’
(§ 192, subd. (b).) ‘The offense of involuntary manslaughter requires proof that a human
being was killed and that the killing was unlawful. [Citation.] A killing is “unlawful” if
it occurs (1) during the commission of a misdemeanor inherently dangerous to human
life, or (2) in the commission of an act ordinarily lawful but which involves a high risk of
death or bodily harm, and which is done “without due caution or circumspection.”’
[Citation.]” (People v. Murray (2008) 167 Cal.App.4th 1133, 1140.) There also exists a
nonstatutory form of the offense based on the predicate act of a noninherently dangerous
felony committed without due caution and circumspection. (People v. Butler (2010) 187
Cal.App.4th 998, 1007.)
       “[C]riminal negligence is the governing mens rea standard for all three forms of
committing the offense. [Citations.]” (People v. Butler, supra, 187 Cal.App.4th at p.
1007.) Criminal negligence consists of “‘aggravated, culpable, gross, or reckless’
conduct that creates a high risk of death or great bodily injury and that evidences a
disregard for human life or indifference to the consequences of the conduct. [Citations.]”
(People v. Garcia, supra, 162 Cal.App.4th at pp. 27–28.)
       As noted above, Garcia addressed whether the trial court in that case had a sua
sponte duty to instruct on involuntary manslaughter as a lesser included offense of
murder, where the defendant hit the victim in the face with the butt of a shotgun. (People
v. Garcia, supra, 162 Cal.App.4th at p. 22.) Garcia clarified that an unlawful killing
during the commission of an inherently dangerous felony was not involuntary
manslaughter. (Id. at p. 31.) Garcia concluded the court did not have a sua sponte duty
to give involuntary manslaughter instructions because the defendant’s conduct
constituted either assault with a deadly weapon or assault with a firearm, and both
offenses were inherently dangerous felonies. (Id. at pp. 22, 31–32.)



                                            11.
       While Bryant rejected Garcia’s analysis of voluntary manslaughter, the majority
opinion declined to address Garcia’s analysis of involuntary manslaughter. (People v.
Bryant, supra, 56 Cal.4th at pp. 970-971.) We acknowledge that Justice Kennard filed a
concurring opinion wherein she found an assault with a deadly weapon can constitute an
unlawful act that makes a killing which occurs during the assault an involuntary
manslaughter. (Id. at pp. 971-974 (conc. opn. of Kennard, J.).) Justice Kennard believed
“a killing committed during an unlawful act amounting to a felony is involuntary
manslaughter, notwithstanding the appearance of the phrase ‘not amounting to felony’ in
section 192’s subdivision (b).” (Id. at p. 974.) In reaching this conclusion, however,
Justice Kennard further found the trial court in Bryant did not have a sua sponte duty to
instruct on this theory of involuntary manslaughter, because it was based “on a legal
principle that has been so ‘obfuscated by infrequent reference and inadequate elucidation’
that it cannot be considered a general principle of law. [Citation.]” (People v. Bryant,
supra, at p. 975.)
       In any event, while a homicide may constitute involuntary manslaughter if it
occurs during the commission of a misdemeanor inherently dangerous to human life,
assault with a deadly weapon is an inherently dangerous felony. (People v. Bryant, supra,
56 Cal.4th at p. 966.) Defendant had just engaged in a verbal altercation with occupants
of a vehicle ahead of him in the drive-through lane at Taco Bell. Instead of returning
home once the involved parties departed and went their separate ways, defendant elected
to pull over and retrieve a gun from the trunk of his car. Ignoring his girlfriend’s pleas to
go home, defendant found the Yukon in front of a nearby restaurant. He parked his
vehicle nearby, got out, and began shooting at the driver. After striking his target,
defendant got back into his car and left the area. In this case, defendant was a felon in
possession of a firearm, who then used that firearm against an unarmed man, killing him.
       An involuntary manslaughter instruction was not warranted under the facts of this
case. An instruction on a lesser included offense is not required if the evidence was such
that the defendant, if guilty at all, was guilty of the greater offense. (People v. Kelly

                                             12.
(1990) 51 Cal.3d 931, 959.) A manslaughter theory requires the killing be committed
without malice (People v. Cook, supra, 39 Cal.4th at p. 596), whereas the evidence in this
case showed implied malice. As explained ante, malice is implied “‘when the killing
results from an intentional act, the natural consequences of which are dangerous to life,
which act was deliberately performed by a person who knows that his conduct endangers
the life of another and who acts with conscious disregard for life’ [citation].” (People v.
Lasko, supra, 23 Cal.4th at p. 107; see People v. Swain, supra, 12 Cal.4th at p. 602.) A
defendant acts with implied malice when he or she acts with an awareness of endangering
human life. (People v. Knoller, supra, 41 Cal.4th at pp. 143, 153.)
       Defendant ignores the evidence establishing implied malice in his case. Prior to
shooting and killing Jones, defendant and the victim had been involved in a verbal
altercation. Defendant was angry and told Horns he was “gonna blast that fool.” By that
time, the Yukon was parked near HomeTown Buffet and defendant had exited the
parking lot onto the street. Defendant made the “gonna blast that fool” comment after
retrieving an object from the trunk of his car—a loaded nine-millimeter handgun he used
to kill Jones. There is no doubt defendant intended to shoot Jones. He admitted as much
to Findley.
       Defendant’s argument that he did not know shooting someone in the arms or legs,
or his claim he did not know a bullet piercing the iliac vein would result in one’s death,
misses the mark. Firearm use itself—regardless of one’s aim—is known to be dangerous
to human life. (Accord, People v. Hansen (1994) 9 Cal.4th 300, 311, overruled on other
grounds in People v. Chun (2009) 45 Cal.4th 1172, 1199 [“The tragic death of innocent
and often random victims, both young and old, as the result of the discharge of firearms,
has become an alarmingly common occurrence in our society—a phenomenon of
enormous concern to the public”]; People v. Nieto Benitez, supra, 4 Cal.4th 91
[brandishing loaded firearm in a threatening manner constitutes a sufficiently dangerous
act to support finding of implied malice]; People v. Tophia (1959) 167 Cal.App.2d 39,
45, abrogated on other grounds by People v. Cox (2000) 23 Cal.4th 665, 675 [“It is

                                            13.
universally accepted that a loaded gun is so dangerous an instrument that a high degree of
caution and circumspection is required of the person handling it”]; People v.
Freudenberg (1953) 121 Cal.App.2d 564, 580 [“From the time of the common law,
firearms were recognized as a dangerous instrumentality because of their great potential
harm and in the interest of the preservation of human life and safety a high degree of care
was demanded of those who use them”].) Further, defendant admitted knowing what he
did was wrong. He should not now be heard to complain he lacked sufficient medical
knowledge in order to understand the dangerousness of his actions. We think any
reasonable juror would have concluded defendant’s act of firing his gun was highly
dangerous, that defendant could not have been ignorant of the danger, and that he acted
with conscious disregard for human life.
       Moreover, intentionally firing a shot at a victim at close range is an act dangerous
to human life and presents a high probability of death, so it is sufficient to establish
implied malice, even if the jury did not find an intent to kill. (People v. Woods (1991)
226 Cal.App.3d 1037, 1048.) Here, the victim was “pushing [defendant’s] buttons” and
defendant felt like he had been “punked in front of [his] girlfriend.” Defendant wanted to
shoot at the victim. When he fired the three shots at Jones, defendant estimated he was
25 to 30 feet away.9 Firing three shots at the victim from that distance demonstrated an
intentional act, inherently dangerous to human life, done without regard to the
consequences. This evidence establishes implied malice, even assuming the jury
accepted defendant’s statements that he did not intend to kill Jones. Also, implied malice
can be found when a defendant willfully discharges a firearm with gross negligence in
violation of section 246.3. (E.g., People v. Clem (2000) 78 Cal.App.4th 346, 353
[“However, a killer who violates section 246.3 ‘is engaged in a felony whose inherent
danger to human life renders logical an imputation of malice on the part of all who
commit it’”].) Defendant was convicted of that offense as well.

       9Hammond    estimated the distance to be about 15 feet.


                                               14.
       Even if we were to assume the evidence supported the giving of an involuntary
manslaughter instruction, the trial court did not err in failing to give such an instruction
sua sponte.
       In Bryant, the California Supreme Court remanded the matter for further
proceedings following its reversal of the Fourth Appellate District’s original holding.
(People v. Bryant, supra, 56 Cal.4th at p. 971.) On December 18, 2013, after remand,
and after briefing was completed in this case, the Fourth District issued its opinion
addressing the outstanding issue: whether a trial court has a sua sponte duty to instruct a
jury that an unlawful killing committed without malice in the course of assaultive felony
is involuntary manslaughter. (People v. Bryant (2013) 222 Cal.App.4th 1196, 1200
(Bryant II), review den. Apr. 30, 2014, S216703.)
       In Bryant II, the Court of Appeal determined the trial court did not err in failing to
instruct the jury sua sponte that an unlawful killing committed in the absence of malice
during an assaultive felony is involuntary manslaughter because a trial court is not
required to instruct on novel legal theories or those that have not been explained or
clarified. In so holding, that court relied upon the Supreme Court’s earlier decisions in
People v. Flannel (1979) 25 Cal.3d 668 and People v. Michaels (2002) 28 Cal.4th 486.
(Bryant II, supra, 222 Cal.App.4th at pp. 1203-1205.) The Fourth Appellate District
concluded that in “light of the lack of authority in support of either theory of involuntary
manslaughter, it is clear that pursuant to the Supreme Court law cited above, the trial
court did not have a sua sponte duty to instruct the jury that an unlawful killing
committed without malice in the course of an assaultive felony constitutes the crime of
involuntary manslaughter.” (Id. at p. 1206.) We agree with the Fourth District that there
is no authority requiring a trial court to instruct a jury on involuntary manslaughter where
the unlawful killing was committed without malice during the course of an assaultive
felony.
       Defendant’s sole support for his claim is Justice Kennard’s concurrence in People
v. Bryant, supra, 56 Cal.4th at pages 971 through 974, finding a killing during an assault

                                             15.
with a deadly weapon to be involuntary manslaughter. Yet, “‘“no opinion has value as a
precedent on points as to which there is no agreement of a majority of the court.
[Citations.]”’” (People v. Retanan (2007) 154 Cal.App.4th 1219, 1231.) Thus, because
no other justice joined Justice Kennard’s concurring opinion in Bryant, it lacks
precedential value. (Ibid.)
       Because the evidence presented at trial did not support an involuntary
manslaughter instruction, defendant’s alternative claim of ineffective assistance of trial
counsel for failing to request that instruction also fails. (People v. Szadziewicz (2008)
161 Cal.App.4th 823, 836 [counsel did not render ineffective assistance because
instructions at issue were factually and legally unsupported].)
       In summary, the trial court here was not required to instruct the jury regarding the
lesser included offense of involuntary manslaughter because (1) the evidence did not
warrant such an instruction, and (2) defendant’s theory does not amount to a generally
accepted legal principle triggering the trial court’s sua sponte duty. Hence, the trial court
did not err.
II.    The Sufficiency of the Evidence
       Next, defendant contends “taking into account the jury’s acquittals … there is no
substantial evidence to support any conviction above manslaughter” (capitalization
omitted), and thus his conviction for second degree murder cannot stand.
Legal Standards
       In assessing a claim of insufficiency of the evidence, the reviewing court’s task is
to review the entire record in the light most favorable to the judgment to determine
whether it contains substantial evidence—evidence that is reasonable, credible, and of
solid value upon which a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. The standard of review is the same in cases in which the prosecution
relies mainly on circumstantial evidence. It is the jury that must be convinced of a
defendant’s guilt beyond a reasonable doubt. If the circumstances reasonably justify the
trier of fact’s findings, the opinion of the reviewing court that the circumstances might

                                             16.
also reasonably be reconciled with a contrary finding does not warrant a reversal of the
judgment. (People v. Watkins (2012) 55 Cal.4th 999, 1019-1020; People v. Rodriguez
(1999) 20 Cal.4th 1, 11; see Jackson v. Virginia (1979) 443 U.S. 307, 317–320; People v.
Johnson (1980) 26 Cal.3d 557, 576-577.)
       In reviewing a challenge to the sufficiency of the evidence, appellate courts do not
determine the facts. We examine the record as a whole in the light most favorable to the
judgment and presume the existence of every fact the trier of fact could reasonably
deduce from the evidence in support of the judgment. (People v. Kraft (2000) 23 Cal.4th
978, 1053.) If the verdict is supported by substantial evidence, a reviewing court must
accord due deference to the trier of fact and not substitute its evaluation of a witness’s
credibility for that of the fact finder. (People v. Ochoa (1993) 6 Cal.4th 1199, 1206.)
The testimony of a single witness—unless physically impossible or inherently
improbable—is sufficient for a conviction. (Evid. Code, § 411; People v. Young (2005)
34 Cal.4th 1149, 1181.)
       An appellate court must accept logical inferences that the jury might have drawn
from circumstantial evidence. (People v. Maury (2003) 30 Cal.4th 342, 396.) Before the
judgment of the trial court can be set aside for insufficiency of the evidence, “it must
clearly appear that on no hypothesis whatever is there sufficient substantial evidence to
support the verdict of the jury.” (People v. Hicks (1982) 128 Cal.App.3d 423, 429; see
People v. Conners (2008) 168 Cal.App.4th 443, 453.)
       As has already been stated, second degree murder is an unlawful killing of a
human being with malice aforethought, yet without the willfulness, premeditation, and
deliberation that would support a conviction for murder in the first degree. (People v.
Nieto Benitez, supra, 4 Cal.4th at p. 102.) Malice may be either express or implied.
Express malice exists when there is a deliberate intention unlawfully to take away the life
of a fellow creature. It is implied when no considerable provocation appears or when the
circumstances attending the killing show an abandoned and malignant heart. (§ 188.)
“Malice is implied … when a killing results from an intentional act, the natural

                                             17.
consequences of which are dangerous to human life, and the act is deliberately performed
with knowledge of the danger to, and with conscious disregard for, human life.” (People
v. Cook, supra, 39 Cal.4th at p. 596.)
Our Analysis
       Considering the entire record, and reviewing the evidence in the light most
favorable to the judgment—the conviction of second degree murder—we conclude the
evidence is sufficient to support the conviction. Defendant unlawfully killed Jones with
malice aforethought.
       Specifically, there is ample evidence of implied malice sufficient to support the
jury’s verdict. Jones’s death resulted from defendant’s intentional act of firing his nine-
millimeter handgun at Jones. Defendant performed that act following a verbal
confrontation involving the victim in the Taco Bell drive-through line. After that
confrontation, defendant was angry and felt disrespected. He reacted by pulling his
vehicle over to retrieve a loaded handgun from the trunk. He ignored his girlfriend’s
pleas to return home and told her he was going to “blast that fool.” Defendant “cocked
back the gun” and found the victim’s vehicle parked nearby. He parked his own vehicle
behind the victim’s before stepping out and reaching across the “top of the hood” to fire
his weapon at the unarmed victim.10
       Defendant’s act was intentional, the natural consequences of which were
dangerous to human life. (People v. Read (1983) 142 Cal.App.3d 900, 903 [firing a
weapon at another human being is dangerous to human life].) Defendant performed that
act deliberately, with knowledge of its danger, and in conscious disregard of that danger.
(People v. Hansen, supra, 9 Cal.4th at p. 311 [firearm use known to be dangerous to
human life;] People v. Nieto Benitez, supra, 4 Cal.4th 91; People v. Tophia, supra, 167
Cal.App.2d at p. 45; cf. People v. Laws (1993) 12 Cal.App.4th 786, 793–794 [“if one

       10Shaahid  and Little Nate both testified no words were exchanged between Jones and
defendant on this occasion. Horns did not testify to any verbal exchange occurring between the
victim and the defendant just prior to the shooting in the HomeTown Buffet parking lot.


                                              18.
simply wishes to scare another by shooting a gun in the direction of the other person
intending the bullet to just miss that person (i.e., without the intent to kill or injure), the
shooter can be guilty of murder if, accidentally, the bullet strikes and kills the person”].)
       Defendant notes the jury acquitted him of first degree murder, three counts of
attempted murder, and shooting at an occupied vehicle. He argues these acquittals should
lead to the conclusion there is insufficient evidence to support a conviction for second
degree murder. We are not persuaded. His point fails to account for the numerous
federal and California decisions holding that a jury verdict acquitting a defendant of a
charged offense does not constitute a finding the defendant is factually innocent of the
offense or establish that any or all of the specific elements of the offense are not true.
(E.g., United States v. Watts (1997) 519 U.S. 148, 155 [“‘acquittal on criminal charges
does not prove that the defendant is innocent; it merely proves the existence of a
reasonable doubt as to his guilt’” and unless specific findings are made “the jury cannot
be said to have ‘necessarily rejected’ any facts when it returns a general verdict”];
Dowling v. United States (1990) 493 U.S. 342, 349; People v. Towne (2008) 44 Cal.4th
63, 86 [“an acquittal merely establishes the existence of a reasonable doubt as to guilt.
Unless specific findings are made, ‘the jury cannot be said to have “necessarily rejected”
any facts when it returns a general verdict’”]; In re Coughlin (1976) 16 Cal.3d 52, 59
[“[T]he fact of an acquittal establishes only that the trier of fact entertained a reasonable
doubt of defendant’s guilt”]; In re Dunham (1976) 16 Cal.3d 63, 66–67.)
       In this case, a review of the record reveals the jury entertained reasonable doubt
with regard to the willfulness, premeditation, and deliberation elements of first degree
murder. It also entertained reasonable doubt concerning any attempt on defendant’s part
to take the lives of Hammond, Shaahid, and Little Nate. Nevertheless, the jury’s acquittal
of defendant’s guilt as to the first degree murder of Jones, and those pertaining to the
attempted murders of the Yukon’s remaining occupants, do not constitute a finding that
defendant could not be found guilty of second degree murder for Jones’s death.



                                               19.
       In sum, this is simply not a case where it is clear “that on no hypothesis whatever
is there sufficient substantial evidence to support the verdict of the jury.” (People v.
Hicks, supra, 128 Cal.App.3d at p. 429.) In contrast, in this case, there was reasonable,
credible evidence, of solid value, upon which a reasonable trier of fact could find
defendant guilty of second degree murder beyond a reasonable doubt. (People v.
Watkins, supra, 55 Cal.4th at pp. 1019-1020.)
                                      DISPOSITION
       The judgment is affirmed.

                                                          ___________________________
                                                                              PEÑA, J.
WE CONCUR:


 ________________________________
POOCHIGIAN, Acting P.J.


 ________________________________
FRANSON, J.




                                             20.
