Filed 2/10/15 P. v. Cavness CA1/1


                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,                               A137912

v.                                                               (San Francisco County
MICHAEL CAVNESS,                                                 Super. Ct. No. 211241)
         Defendant and Appellant.                                ORDER MODIFYING OPINION
                                                                 AND DENYING REHEARING
                                                                 [NO CHANGE IN JUDGMENT]


BY THE COURT:
         The petition for rehearing filed on January 20, 2015 is denied.
         The opinion filed on January 13, 2015 is modified as follows:
         (1) On page 1 of the opinion, after the first two sentences of the first paragraph,
delete the remainder of the paragraph and replace it with the following:
         Defendant argues his involuntary manslaughter conviction must be reversed for
instructional error and insufficient evidence. We conclude the trial court committed
prejudicial instructional error, but that substantial evidence supports this conviction.
Therefore, we reverse the conviction and remand for a new trial on the involuntary
manslaughter charge. Defendant further contends there was insufficient evidence to
support his 25 years to life sentence under the Three Strikes Law for assault with a deadly




                                                             1
weapon. We agree and vacate this sentence. We remand this matter to the trial court for
resentencing as well.
         (2) On page 3, delete the last three sentences of the second full paragraph, which
paragraph begins with “It also was not disputed . . . .” Insert the following after this
paragraph:
         Defendant testified that Edward punched him first in the head and that he,
defendant, hit Edward back. Edward fell backwards onto the pavement, knocked out.
Defendant said he slapped Edward in the face a bit, trying to wake him up, and then left
the area because he wanted to catch another visitor to the garage, a woman named Pearl,
so that she would explain to his mother and the police what happened.
         Defendant and Edward’s mother, Katherine Cavness, testified that she heard
defendant telling Edward to get out of the garage. She went downstairs and saw Edward
ball up his fists and not leave, and that defendant’s fists were not balled up. She saw
Edward hit defendant, and defendant then hit Edward. Edward fell backward, appeared
to strike his head on the pavement, and did not get up. On cross-examination, she
acknowledged that she was not sure who hit whom first.
         Another witness, Amy Craven, testified that she observed the scene as she sat in a
truck parked “catty-corner” on the other side of the street. She saw defendant outside the
garage arguing “nose to nose” with a “tall, thin gentleman” who, the evidence indicates,
was Edward. The two were “angry and agitated and aggravated at one another.” Craven
saw Edward put both his hands up, palms open, and lean backwards. Defendant punched
him in his face, near the left temple area just above his ear. Craven thought “the punch
caught [Edward] off guard and off kilter, and he fell directly backwards,” hitting his head
on the curb. She previously had told police that the two “ ‘started swinging punches at
one another,’ ” but said at trial that she did not know if Edward swung at defendant.
Taylor testified that he heard Edward say, “ ‘If you hit me again, you’re going to kill
me.’ ”
         Craven further testified that Edward made no effort to break his fall. Defendant
“got on top of him and wanted to start to, like, w[h]ale on him some more.” She saw


                                              2
defendant “pounding [Edward’s] head into the sidewalk some more.” She previously had
said that defendant “slapped” Edward’s face. Craven got out of the truck and screamed at
defendant, who ran away.
       The parties disputed whether Edward smoked crack cocaine with his brother that
morning. Pearl testified that everyone present, which included defendant and Edward,
were “smoking drugs.” Defendant testified that Edward came down to the garage later in
the morning, shortly before their fight, and told him their mother was coming downstairs.
Defendant also testified that Edward had “been drinking” that day.
       (3) On page 4, delete the heading, “The Court Committed Prejudicial Error In
Instructing The Jury Regarding Involuntary Manslaughter” and replace it with the
heading, “Defendant’s Involuntary Manslaughter Conviction”. Delete the first
paragraph underneath this heading and replace it with the following:
       Defendant argues that his conviction for the involuntary manslaughter of Edward
must be reversed for instructional error and insufficient evidence. We conclude that the
court committed instructional error, but that the evidence was sufficient to convict him of
involuntary manslaughter.
       (4) On page 4, in the second full paragraph, after “998, 1006” add “(Butler)”.
After “670-676” delete “; People v. Butler,” and replace it with “ (Cox); Butler,”.
       (5) On page 5, delete the heading, “The Prosecution’s Theory And The Trial
Court’s Instructions” and replace it with “The Court Committed Prejudicial Error In
Instructing The Jury Regarding Involuntary Manslaughter.” Insert the following as
the first paragraph beneath this heading:
       Defendant argues the trial court prejudicially erred when it instructed the jury
about involuntary manslaughter pursuant to CALCRIM No. 581 without including the
definition for “criminal negligence” contained in that standard instruction. The People
concede the court’s error, but argue that it was not prejudicial. We agree with defendant.
       (6) On page 5, in the last line of the body of the page, delete “People v. Cox
(2000) 23 Cal.4th 665,” and replace it with “Cox, supra, 23 Cal.4th at p.”.
       (7) On page 7, delete “C. Analysis”.


                                             3
       (8) On page 8, in the first full paragraph, beginning with “But the difference . . .”,
delete the word “Defendant” in the beginning of the second sentence and replace it with,
“Regardless of whether or not substantial evidence supported defendant’s involuntary
manslaughter conviction—an issue we address below—defendant”.
       (9) On page 8, in footnote 6, in the first sentence, delete “one witness’s” and
replace it with “Craven’s”.
       (10) On page 9, after the first full paragraph that begins with “In short . . .”, insert
the following:
 C. Sufficient Evidence Supports Defendant’s Involuntary Manslaughter Conviction.
       Defendant also argues there was insufficient evidence that he acted with “criminal
negligence” or that his conduct was the proximate cause of Edward’s death. If this is the
case, the constitutional protection against double jeopardy would prohibit the People
from trying him again for the involuntary manslaughter of Edward. (People v. Anderson
(2009) 47 Cal.4th 92, 104.) We conclude that, regardless of the trial court’s instructional
error or the jury’s verdicts, sufficient evidence supports his involuntary manslaughter
conviction. Therefore, we remand this matter for a new trial on the involuntary
manslaughter charge.
       “To assess the evidence’s sufficiency, we review the whole record to determine
whether any rational trier of fact could have found the essential elements of the crime . . .
beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to
support the verdict—i.e., evidence that is reasonable, credible, and of solid value—such
that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
[Citation.] In applying this test, we review the evidence in the light most favorable to the
prosecution and presume in support of the judgment the existence of every fact the jury
could reasonably have deduced from the evidence. [Citation.] ‘Conflicts and even
testimony [that] is subject to justifiable suspicion do not justify the reversal of a
judgment, for it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts upon which a determination
depends. [Citation.] We resolve neither credibility issues nor evidentiary conflicts; we


                                               4
look for substantial evidence. [Citation.]’ [Citation.] A reversal for insufficient
evidence ‘is unwarranted unless it appears “that upon no hypothesis whatever is there
sufficient substantial evidence to support” ’ the jury’s verdict.” (People v. Zamudio
(2008) 43 Cal.4th 327, 357.)
       With these standards in mind, we turn to defendant’s arguments.
       1. Criminal Negligence
       The jury convicted defendant of involuntary manslaughter of Edward based on his
commission of a misdemeanor offense, battery. Therefore, in evaluating defendant’s
“criminal negligence” claim, we determine whether there is substantial evidence that this
battery “was dangerous to human life or safety under the circumstances of its
commission.” (Cox, supra, 23 Cal.4th at p. 675.)
       Defendant argues, “[t]he evidence offered here of a single swing, without other
endangering circumstances, comes nowhere near the requisite level of substantial proof to
establish criminal negligence – a high risk of death or great bodily injury . . . .” The
People argue the present circumstances are similar to those discussed in People v.
Cravens (2012) 53 Cal.4th 500 (Cravens). There, our Supreme Court concluded that the
totality of the circumstances indicated that a defendant acted with implied malice—
necessary to convict him of second degree murder—when he threw a single punch to the
head of the victim. We agree with the People that the analysis in Cravens is particularly
relevant here.
       In Cravens, four men, former football teammates, confronted another man, a
professional surfer named Kauanui, outside his home. (Cravens, supra, 53 Cal.4th at p.
502-504.) Substantial evidence indicated the four attacked Kauanui and one of them—
not the defendant—eventually straddled and punched the defenseless surfer with both
fists. (Id. at p. 504.) During a lull in the fighting, Kauanui stood up and walked
unsteadily. (Id. at p. 505.) When he asked the defendant a non-threatening question, the
defendant “ ‘came flying out’ and ‘coldcocked’ ” Kauanui with an “ ‘extremely hard’ ”
punch as defendant stood on a curb striking down at Kauanui, who was standing at street
level. (Ibid.) Witnesses thought Kauanui was unconscious from the blow before he hit


                                              5
the ground. (Ibid.) Kauanui’s skull hit the ground loudly, leading to a brain injury and
his death a few days later. (Ibid.) The defendant left the scene and later bragged about
the punch. (Id. at p. 506.)
       The Cravens court reviewed whether sufficient evidence satisfied both the
physical and mental components of implied malice. The first, which is similar to the
“high risk of death or great bodily injury” element defendant raises here, requires that the
“ ‘ “ ‘natural consequences’ ” ’ ” of the act performed be “ ‘ “ ‘dangerous to life. ’ ” ’ ”
(Cravens, supra, 53 Cal.4th at p. 508.) The court found substantial evidence met this
element. Among other things, it indicated defendant, the larger man, struck a victim who
was in a physically vulnerable position with a punch “hard enough to knock Kauanui
unconscious . . . even before he hit the ground,” regardless of the absence of facial
markings on Kauanui from the blow. (Id. at p. 509.) Also, the defendant’s conduct in
delivering the blow “guaranteed that Kauanui would fall on a very hard surface, such as
the pavement or the concrete curb. ‘The consequences which would follow a fall upon a
concrete walk must have been known to [defendant.]’ ” (Ibid.) The court continued,
“Perhaps worst of all, defendant decked Kauanui with a sucker punch. The jury could
reasonably have found that at the time defendant attacked, Kauanui posed no threat and
was not behaving in an aggressive manner” and “intended to catch Kauanui at his most
vulnerable.” (Ibid.)
       The Cravens court “categorically reject[ed] defendant’s blithe assertion that the
‘natural consequence’ of his conduct was merely ‘a sore jaw’ ” and concluded the record
belied the assumption that the “punch was at all ordinary.” (Cravens, supra, 53 Cal.4th
at pp. 510, 511.) Rather, the court concluded, “it was an extremely powerful blow to the
head calculated to catch the impaired victim off guard, without any opportunity for the
victim to protect his head, and thereby deliver the victim directly and rapidly at his most
vulnerable to a most unforgiving surface.” (Id. at p. 511.)
       This conclusion applies with equal force here. The aggravated circumstances
involved here are somewhat different from those in Cravens. Edward was not attacked
prior to defendant’s punch, nor does the record indicate that defendant was significantly


                                              6
larger than Edward or punched him from a physically advantageous position.
Nonetheless, the Cravens court focused on the circumstances surrounding the defendant’s
single blow to Kauanui’s head. We do so here as well. Substantial evidence indicates
that defendant “sucker punched” an intoxicated Edward in the head as Edward put his
hands up, palms out, and moved backward in a defenseless position, and that defendant
did so with a punch so hard that it knocked Edward unconsciousness immediately, before
he hit the hard pavement. As indicated in Cravens, a jury could reasonably reach this
conclusion whether or not the medical examiner considered the punch to be of “severe”
force and regardless of the markings on Edward’s face from the blow. Further, Taylor
testified that Edward warned defendant that if defendant punched him again, it would kill
him, and defendant fled the scene and later bragged to a cousin that he knocked Edward
out cold with one punch. It can be reasonably inferred from this evidence that defendant
understood his punch could seriously injure Edward. Based on these circumstances, a
jury could reasonably conclude that defendant’s act was a reckless one that created a high
risk of death or great bodily injury.
       Defendant’s arguments are similar to those made by the defendant in Cravens. He
argues that “[f]ist fights break out daily in our society, yet no reasonable person expects
that a single closed fist punch to the jaw is likely to create a high risk of death,” and he
quotes the prosecutor’s reference to the event as a “tragic accident” as further proof of its
ordinary nature. He also correctly points out that, regarding second degree murder, “ ‘if
the blows causing death are inflicted with the fist, and there are no aggravating
circumstances, the law will not raise the implication of malice . . . .’ ” (Cravens, supra,
53 Cal.4th at p. 508.) He contends that the jury’s acquittal of him on the charge of
assault by means of force likely to cause great bodily injury demonstrates that there were
no “aggravated circumstances here,” and contends that the “necessary level of negligence
is well exemplified” by the 15-minute physical attack described in Butler, supra, 187
Cal.App.4th at pp.1003-1004. There, the appellate court rejected a defendant’s
contention that there was insufficient evidence to support his involuntary manslaughter
conviction because substantial evidence indicated he participated with others in the


                                               7
prolonged physical abuse of the victim, thereby substantially contributing to the victim’s
death. (Id. at pp. 1010-1012.)
       We disagree with defendant’s arguments. Nothing in Butler precludes us from
finding aggravated circumstances existed here or that substantial evidence supports
defendant’s conviction whatever may be deduced from the jury’s verdicts. More
importantly, defendant’s analysis ignores the substantial evidence of aggravated
circumstances that we have discussed, and that the legal standard for “criminal
negligence” includes not only the high risk of death, but also the high risk of “great
bodily injury.” Although the jury that heard this case apparently did not so find, a jury
reasonably could find such a risk based on substantial evidence.
       2. Proximate Cause
       Defendant next argues that there was not substantial evidence that his battery of
Edward was the proximate cause of Edward’s death. Again, we disagree.
       “Involuntary manslaughter . . . requires a showing that the defendant’s conduct
proximately caused the victim’s death.” (Butler, supra, 187 Cal.App.4th at p. 1009.)
There may be concurrent causes of death, i.e., more than one cause that is “ ‘ “ ‘operative
at the time of the death and acted with another cause to produce the death.’ ” ’ ” (Ibid.)
In such a circumstances, defendant’s conduct need only be “a substantial factor in
causing the death.” (Ibid.) “Further, proximate causation requires that the death was a
reasonably foreseeable, natural and probable consequence of the defendant’s act, rather
than a remote consequence that is so insignificant or theoretical that it cannot properly be
regarded as a substantial factor in bringing about the death.” (Id. at pp. 1009-1010.)
       Defendant argues that Edward’s death was not a reasonably foreseeable result of
his single punch, but could only “be revealed through hindsight.” This is based on his
continued assertion that he committed a simple battery under ordinary, rather than
dangerous, circumstances, as indicated by the jury’s acquittal of him on the charge of
assault by force likely to produce great bodily injury. We disagree. As we have
discussed, there is substantial evidence of aggravated circumstances here similar to those
discussed in Cravens. Notably, the Cravens court also concluded that the jury there


                                             8
could reasonably infer the defendant was subjectively aware that his conduct endangered
Kauanui’s life from the circumstances of the attack alone, “the natural consequences of
which were dangerous to human life.” (Cravens, supra, 53 Cal.4th at p. 511, italics
added.) Here, substantial evidence indicates that defendant struck Edward so hard as to
knock him immediately unconscious and send him falling senseless to the hard pavement.
It takes no hindsight to realize such a blow could cause Edward to crack his unprotected
head on the pavement and suffer a fatal injury. Although Edward’s death resulted from
his head hitting the pavement rather than as a direct result of defendant’s punch,
defendant’s act was a substantial factor in causing Edward’s death. Further, there was
substantial evidence to support a finding that Edward’s death was a reasonably
foreseeable, natural and probable consequence of defendant’s hard blow to the
defenseless and intoxicated Edward as they stood on the sidewalk. Defendant’s
“proximate cause” argument lacks merit.
       (11) On page 14, in the first full paragraph, delete “, including defendants’
contention that the People did not present evidence sufficient to meet certain other
elements of involuntary manslaughter.” Replace it with a period directly after
“arguments”.


       There is no change in judgment.




Dated:_______________________                    ________________________
                                                 Kline, P.J.




                                             9
Filed 1/13/15 P. v. Cavness CA1/2 (unmodified version)
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115. z


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,
         Plaintiff and Respondent,
                                                                 A137912
v.
MICHAEL CAVNESS,                                                 (San Francisco County
                                                                 Super. Ct. No. 211241)
         Defendant and Appellant.

         Defendant Michael Cavness appeals from his conviction after jury trial on several
criminal counts and related enhancement allegations. Among other things, he was
sentenced to eight years for involuntary manslaughter and to a base term of 25 years to
life under the Three Strikes Law for assault with a deadly weapon, upon which 13 years
were added for certain enhancement allegations. Defendant argues the trial court
committed prejudicial instructional error regarding his involuntary manslaughter charge,
requiring reversal. He further contends there was insufficient evidence to support his
25 years-to-life sentence under the Three Strikes Law for assault with a deadly weapon.
We agree in both respects. Therefore, we reverse defendant’s involuntary manslaughter
conviction, vacate his 25-years-to-life sentence, and remand this matter to the trial court
for further proceedings consistent with this opinion.
                                                 BACKGROUND
                                                Procedural History
         In January 2010, the San Francisco District Attorney charged defendant in an
information with four criminal counts related to events that occurred on April 2, 2009.



                                                             1
Defendant was alleged to have assaulted George Michael Taylor with a deadly weapon,
an iron bar (Pen. Code, § 245, subd. (a)(1)),1 and to have personally inflicted great bodily
injury (§ 12022.7, subd. (a)) in doing so (count one); to have committed the involuntary
manslaughter (§ 192, subd. (b)) of his brother Edward Cavness (Edward),2 as the
proximate result of committing assault with a force likely to produce great bodily injury
(§ 245, subd. (a)(1)) (count two); to have assaulted Edward with force likely to cause
great bodily injury (§ 245, subd. (a)(1)) (count three); and to have been in possession of a
controlled substance, cocaine base (Health & Saf. Code, § 11350, subd. (a)) (count four).
The sentence enhancement allegations included that defendant had two prior “strike”
convictions. This required that he be sentenced to an indeterminate life term under the
“Three Strikes Law.”3 (§ 667.)
       Defendant pled not guilty to all allegations and a jury trial followed. The jury
found him guilty of counts one, two, and four, and guilty of a lesser offense, “simple
assault” (§ 240), in count three. It also found a sentence enhancement allegation
contained in count one to be true. The court subsequently held a bench trial regarding the
prior conviction allegations. Among other things, it found to be true the allegations that
defendant had two prior “strike” convictions.
       Accordingly, in February 2013, the trial court sentenced defendant on count one,
the assault of Taylor with a deadly weapon, to a base term of 25 years to life pursuant to
the Three Strikes Law, with 13 additional years added under the other applicable
enhancement allegations; on count two, involuntary manslaughter, to a total of eight
years including a sentencing enhancement; on count three, simple assault, to one year in
county jail; and on count four, to eight months in county jail. The court ordered that the


       1
           All of our statutory references are to the Penal Code.
       2
         We refer to Edward by his first name for clarity’s sake, and mean no disrespect
in doing so. We also recognize that the parties refer to him as “Bernard.”
       3
        The Three Strikes Law is codified at section 667, subdivisions (b) through (i)
and Penal Code section 1170.12, subdivisions (a) through (d). (People v. Sosa (2013)
210 Cal.App.4th 946, 948.)


                                               2
sentences run consecutively and stayed the sentences for counts three and four.
Defendant filed a timely notice of appeal.
                               Evidence Presented At Trial
       At trial, it was not disputed that on the morning of April 2, 2009, defendant and
Taylor smoked crack cocaine in defendant’s makeshift home, located in the garage of a
house he shared with his mother and other family in San Francisco, California.
Defendant became agitated after Taylor refused to leave the garage and hit him in the
head with an iron bar, dazing Taylor and causing him to bleed profusely. Taylor testified
that defendant was standing behind him as he, Taylor, was engaged in a drug transaction
with a visitor to the garage. Taylor next remembered waking up on the ground outside
the garage, his head bleeding profusely. Defendant testified that he hit Taylor once with
the bar in self-defense after Taylor tried to stab him with a sharp metal object. Taylor
was treated at a hospital and released the next day.
       It also was not disputed that a few moments after defendant hit Taylor, defendant
and Edward were standing on the sidewalk outside the garage. Defendant punched
Edward in the jaw, knocking him unconscious and causing him to fall backwards.
Edward’s head hit the sidewalk and his skull fractured, leading to his death. Defendant
testified that Edward punched him first in the head. The parties disputed whether Edward
did so based on different eyewitness accounts. They also disputed whether Edward also
smoked crack cocaine with his brother that morning.
       A medical examiner for the San Francisco Police Department testified that, along
with Edward’s skull fracture, there was a sutured area inside his lip and a red abrasion on
his jaw that were consistent with blunt force trauma. The blow to the back of Edward’s
head was of a “severe” force, but the punch to the jaw was not. Alcohol and a metabolite
of cocaine were found in Edward’s blood. It could not be determined when he used the
cocaine.
       Defendant was arrested a few blocks away from his home on the afternoon of the
incident. He was carrying .97 grams of cocaine base in a cigarette container. After his
arrest, he called a cousin from jail. The call was recorded and played for the jury.


                                             3
Defendant told his cousin about Taylor and Edward, “I had to break [Taylor] and
[Edward] ass off.” He went on to say, “What, what’s up with [Taylor], man? Cause I
clubbed his ass a bunch of times.” He also said, “I hit [Edward] in his jaw one time.
Nigger was out cold[,]” as well as “[Edward] hit me on the side [of] the head after I was
fighting [Taylor]. He jump in on [Taylor’s] side.”
                                       DISCUSSION
                I. The Court Committed Prejudicial Error In Instructing
                    The Jury Regarding Involuntary Manslaughter.

       Defendant argues the trial court prejudicially erred when it instructed the jury
about involuntary manslaughter pursuant to CALCRIM No. 581 without including the
definition for “criminal negligence” contained in that standard instruction. The People
concede the court’s error, but argue that it was not prejudicial. We agree with defendant.
A. The Elements Of Involuntary Manslaughter
       Section 192 defines involuntary manslaughter as “the unlawful killing of a human
being without malice” either (a) “in the commission of an unlawful act, not amounting to
felony” (i.e., a misdemeanor); or (b) “in the commission of a lawful act which might
produce death, in an unlawful manner, or without due caution and circumspection.”
“Through statutory definition and judicial development, there are three types of acts that
can underlie commission of involuntary manslaughter: a misdemeanor, a lawful act, or a
noninherently dangerous felony.” (People v. Butler (2010) 187 Cal.App.4th 998, 1006.)
The defendant’s act must proximately cause the death (id. at p. 1009) and be committed
with criminal intent that is at least criminal negligence. (People v. Stuart (1956) 47
Cal.2d 167, 173-174, explained by People v. Cox (2000) 23 Cal.4th 665, 670-676; People
v. Butler, supra, at p.1006 [“for all three types of predicate acts the required mens rea is
criminal negligence”].)




                                              4
B. The Prosecution’s Theory And The Trial Court’s Instructions
       The prosecution argued, and the trial court instructed the jury, on two alternative
predicate acts as the basis for the involuntary manslaughter charge: battery in violation
of section 242 or assault with force likely to cause injury in violation of section 245,
subdivision (a).4 The court correctly instructed the jury using a modified version of
CALCRIM No. 581 that the People had to prove one of those crimes, that the defendant
had to have committed the crime with criminal negligence, and that the crime had to have
caused the death. The instruction addressed the causation element, but failed to define or
further discuss the criminal negligence mens rea requirement.
       The court made this omission although “criminal negligence” is defined in the
standard CALCRIM No. 581 instruction. This definition indicates that the People are
required to show that a defendant acted in a “reckless” way, thereby creating a “high risk
of death or great bodily injury,” and that a reasonable person would have known that
acting in this way would have created such a risk.5
       This definition for “criminal negligence” is consistent with our Supreme Court’s
determination that “misdemeanor assault and battery may support a conviction of
involuntary manslaughter under section 192[, subdivision] (b) if shown to be dangerous
under the circumstances of their commission.” (People v. Cox (2000) 23 Cal.4th 665,


       4
          The court’s instruction omitted the word “great” from the description of the
stated assault offense. However, both the court’s accompanying assault instruction and
the jury’s verdict form for count two referred to force likely to cause “great bodily
injury.” (Italics added.) In any event, as we will discuss, the jury did not rely on this
assault allegation for its involuntary manslaughter guilty verdict.
       5
          The standard definition for “criminal negligence” contained in CALCRIM No.
581 states in full: “Criminal negligence involves more than ordinary carelessness,
inattention, or mistake in judgment. A person acts with criminal negligence when: [¶] 1.
He or she acts in a reckless way that creates a high risk of death or great bodily injury; [¶]
AND [¶] 2. A reasonable person would have known that acting in that way would create
such a risk. [¶] In other words, a person acts with criminal negligence when the way he
or she acts is so different from the way an ordinarily careful person would act in the same
situation that his or her act amounts to disregard for human life or indifference to the
consequences of that act.”


                                              5
674.) “Where involuntary manslaughter is predicated on an unlawful act constituting a
misdemeanor, it must still be shown that such misdemeanor was dangerous to human life
or safety under the circumstances of its commission.” (Id. at p. 675.) A battery under
section 242, which, as we will discuss, the jury relied upon as the predicate unlawful act,
is a misdemeanor offense. (See, e.g., People v. Merriman (2014) 60 Cal.4th 1, 30.)
       The court’s omission was particularly significant because the parties did not
discuss the “criminal negligence” element of involuntary manslaughter in closing
argument. Indeed, their arguments suggested the jury could find defendant guilty of the
crime without finding that defendant acted in a reckless way that created a high risk of
death or great bodily injury. The prosecutor argued the jury could convict if it found
“that there was a crime, a battery or an assault likely to cause great bodily injury, which
was the substantial cause of [Edward’s] death . . . [t]hat [defendant] hit, in an offensive
touching, [Edward] in the jaw. He fell to the ground and he struck his head.” Similarly,
defense counsel told the jury that involuntary manslaughter required “the commission of
an unlawful act that does not amount to a felony, such as a punch, which sets those
wheels in motion, it resulted in the death of a human being. . . . Again, the commission
of an unlawful act not amounting to a felony that results in the death of a human being,
involuntary manslaughter.”
       Indeed, defense counsel suggested to the jury that it need not consider whether
Edward’s death was even foreseeable to defendant, although another requirement of
“criminal negligence” is that a reasonable person would have known that acting in the
way charged would create a high risk of death or great bodily injury. (CALCRIM No.
581.) He said defendant had been charged with involuntary manslaughter, rather than
murder, because “it is not reasonably foreseeable that this kind of thing would happen
from a punch.” (Italics added.) His statement was directly inconsistent with the standard
definition of “criminal negligence” contained in CALCRIM No. 581.
       During its deliberations, the jury asked the court whether “simple assault,” which
it was instructed was a possible lesser offense for count three, was the “same” as
“battery” and could therefore “cover” the unlawful act required for a finding that


                                              6
defendant committed involuntary manslaughter. The court, after conferring with counsel
and without objection from the defense, responded that “[s]imple battery is not the same
as simple assault. However, simple assault can be the underlying non-felonious conduct
of involuntary manslaughter if all the other elements have been proven. The simple
assault and the other elements must be proven beyond a reasonable doubt. If you find
that simple assault is the underlying unlawful act not amounting to a felony in count
[two], please indicate it on the verdict form.”
       The jury found defendant guilty of involuntary manslaughter. It did not designate
“simple assault” as the unlawful act on its verdict form. It also did not indicate whether
“assault with force likely to produce great bodily injury” or “battery,” both of which were
on the form, was the unlawful act. However, in count three, it found defendant was not
guilty of “assault with force likely to cause great bodily injury” but guilty of the lesser
included offense of “simple assault.” The only logical conclusion that can be drawn from
these verdicts is that the jury relied on battery as the predicate unlawful act in finding
defendant guilty of involuntary manslaughter.
C. Analysis
       Defendant asserts we must analyze the trial court’s error pursuant to the federal
standard for prejudice, which requires that we determine whether or not the error was
harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
The People contend we should do so under the state standard, which requires that we
determine whether or not it is reasonably probable that a result more favorable to
defendant would have been reached in the absence of the error. (People v. Watson (1956)
46 Cal.2d 818, 836.) Defendant is correct.
       As this court stated in People v. Hunter, under the Fifth Amendment of the federal
Constitution, “the prosecution must prove every element of a criminal offense beyond a
reasonable doubt [citation], and the Sixth Amendment requires that determination to be
made by the jury, not the court [citation]. Consequently, an instruction lightening the
prosecution’s burden of proof violates the accused’s right to a jury trial. [Citations.]”
(People v. Hunter (2011) 202 Cal.App.4th 261, 276.) These federal constitutional rights


                                              7
are implicated here. Therefore, we must apply the federal prejudice standard and
determine whether or not the court’s instructional error was harmless beyond a
reasonable doubt. (Id. at p. 278, citing Chapman v. California, supra, 386 U.S. at p. 24.)
       But the difference is of no moment in this case because the court’s error was
prejudicial under either standard. Defendant almost certainly would have received a
more favorable verdict regarding count two, involuntary manslaughter, if the court had
instructed the jury on the definition of “criminal negligence.” Regarding count three, the
jury found defendant was not guilty of “assault with force likely to produce great bodily
injury” and guilty only of the lesser offense of “simple assault.” The jury thus declined
to find that defendant’s act of punching his brother involved force “likely to produce
great bodily injury.” This element of the more serious assault charge is very similar to
the “criminal negligence” requirement that the relevant act create “a high risk of death or
great bodily injury.” (CALCRIM No. 581.) Counts two and three were based on the
same act—defendant’s attack of Edward.6 It would not be rational for a jury to conclude
that defendant did not act with force likely to produce great bodily injury, but did act
recklessly so as to create a high risk of death or great bodily injury.
       Nor did the jury’s apparent finding that defendant committed battery affect our
analysis. Regarding battery, the court instructed that the People were required to prove
that defendant “willfully and unlawfully touched Edward Cavness in a harmful or
offensive manner” and “did not act in self-defense.” Nothing in this instruction required
the jury to find defendant acted with force likely to produce great bodily injury, much
less that his act created a high risk of death or great bodily injury.



       6
          The People argue on appeal that the trial court’s instructional error lacked
prejudice because of the overwhelming evidence of defendant’s guilt, including one
witness’s testimony that she saw defendant continue his assault on Edward after Edward
fell. Defendant contends this evidence was discredited. It makes no difference to our
analysis, however, because the jury considered this evidence in determining defendant’s
guilt for both counts two and three and still declined to find that defendant acted with
force likely to produce great bodily injury.


                                               8
       In short, the court’s failure to instruct the jury regarding the definition of “criminal
negligence” was prejudicial: it relieved the prosecution of having to prove every element
of the offense beyond a reasonable doubt and it is more than reasonably probable that,
correctly instructed, the jury would have issued a verdict more favorable to defendant.
Therefore, we reverse defendant’s involuntary manslaughter conviction and remand this
matter to the trial court for further proceedings consistent with this opinion.
                        II. Defendant’s Three Strikes Conviction
       Defendant also argues there was insufficient evidence to support the trial court’s
finding at its bench trial that he had suffered two prior “strike” convictions. Therefore,
he contends, the court’s imposition of his 25-years-to-life sentence for assaulting Taylor
with a deadly weapon pursuant to the Three Strikes Law was in error and should be
vacated. We agree, and remand this matter to the trial court for further proceedings
consistent with this opinion.
A. The Proceedings Below
       The People alleged in their information that defendant was previously convicted of
two specific, serious felonies, each of which constituted a strike. At the bench trial, the
People submitted documentary evidence in support of these allegations and the court
found them to be true. Defendant challenges the sufficiency of the evidence regarding
one of them.7
       Specifically, the People alleged in their information that defendant was “convicted
of the crime of ASSAULT WITH FORCE LIKELY TO CAUSE GREAT BODILY
INJURY, violating section 245[, subdivision ](a)(1) of the Penal Code, a Felony, on or
about the 24th day of May, 1994, in the Superior Court of California, County of San
Francisco.” At the bench trial, the People submitted documents into evidence to prove
this allegation. These included reporter’s transcripts of hearings in San Francisco
Superior Court on May 3, 1994, and May 24, 1994. They show that defendant, in the

       7
         Defendant does not challenge the trial court’s finding that defendant was
convicted in 1999 of the crime of attempting to dissuade a witness (§ 136.1, subd. (a)(2)),
as alleged by the People in their information.


                                              9
same court proceeding, pled to, and was found guilty of, two separate charges in two
separate cases pursuant to a negotiated disposition.
       That is, on May 3, 1994, defendant pled to, and was found guilty of, assault with
force likely to produce great bodily injury in case number 153902. The information filed
against him in that case, also submitted into evidence at the bench trial, indicates this
assault was against Kathryn Schneider. The record does not contain further information
about the offense. Although the relevant count recited in the information in case number
153902 includes an enhancement allegation that defendant personally inflicted great
bodily injury on Schneider, this allegation was dismissed as part of the negotiated
disposition.
       Also on May 3, 1994, defendant pled guilty to assault with a deadly weapon, a
baseball bat, in case number 153932. The information filed against him in that case, also
submitted into evidence at the bench trial, includes the allegation that he personally
committed an assault with the bat upon Charles Cavness. The record does not contain
further information about this offense either.
       At the bench trial regarding defendant’s prior convictions, neither party presented
much argument. The prosecutor declined to make any detailed argument because “the
exhibits speaks [sic] for themselves.” He made no comment regarding the May 1994
proceedings other than in the course of addressing allegations of prior felonies with state
prison terms that were made pursuant to Penal Code section 666.5, subdivision (b)
(regarding determinate sentencing). He stated then that the documents showed “prison
commitments as alleged for the 245 [,subdivision] (a)(1) as one strike; and 245
[,subdivision] (a)(1), nonstrike[.]” Defense counsel submitted on the matter without
making any argument.
       The trial court found that the People’s Three Strikes allegation that defendant had
been convicted of “assault with force likely to cause great bodily injury . . . on or about
the 24th day of May 1994” to be true, without further elaboration. Neither the
information, nor the court’s finding, made any mention of the other conviction defendant
suffered in May 1994, for assault of Charles Cavness with a deadly weapon.


                                             10
B. Analysis
       We review the trial court’s findings to determine whether there is substantial
evidence that the allegation has been proved beyond a reasonable doubt. (People v.
Delgado (2008) 43 Cal.4th 1059, 1065, 1067 (Delgado).) In other words, “we examine
the record in the light most favorable to the judgment . . . [to] determine whether a
rational trier of fact could have found that the prosecution sustained its burden of proving
the elements of the sentence enhancement beyond a reasonable doubt.” (Id. at p. 1067.)
       As defendant points out, in order for the court to sentence him pursuant to the
Three Strikes Law under the circumstances of his case, it must be “pled and proved” that
any prior strike conviction was for a “serious” or “violent” felony. (§ 667, subds. (c),
(e)(2); § 1170.12, subd. (a).)
       Defendant contends that his May 1994 conviction for “assault with force likely to
produce great bodily injury” against Schneider in case number 153902 was neither a
“serious” nor “violent” felony. This is correct. A “serious” or “violent” felony, when a
weaponless assault against a non-accomplice is involved, must involve evidence that the
defendant in fact personally inflicted great bodily injury on the victim. (§ 1192.7,
subd. (c)(8); § 667.5, subd. (c)(8).) “[A]ssault merely by means likely to produce [great
bodily injury], without the additional element of personal infliction, is not included in the
list of serious felonies.” (Delgado, supra, 43 Cal.4th at p. 1065.) Nothing in the record
indicates that defendant’s assault on Schneider involved his actual personal infliction of
such an injury. To the contrary, an allegation that he did so accompanied this assault
charge in case number 153902 and was dismissed as part of the negotiated disposition of
the case.
       A dismissed allegation alone is insufficient evidence that defendant’s assault of
Schneider involved the infliction of the requisite personal injury. “[I]f the prior
conviction was for an offense that can be committed in multiple ways, and the record of
the conviction does not disclose how the offense was committed, a court must presume
the conviction was for the least serious form of the offense. [Citations.] In such a case, if
the statute under which the prior conviction occurred could be violated in a way that does


                                             11
not qualify for the alleged enhancement, the evidence is thus insufficient, and the People
have failed in their burden.” (Delgado, supra, 43 Cal.4th at p. 1066.) Such is the case
here.
        On appeal, the People do not argue that defendant’s conviction for assault with
force likely to produce great bodily injury against Schneider in May 1994 should count as
a prior strike conviction. Instead, they contend we should construe the trial court’s
finding as that defendant suffered a prior conviction for assault with a deadly weapon
against Charles Cavness in case number 153932. Such an assault is a serious felony.
(§ 1192.7, subd. (c)(31); Delgado, supra, 43 Cal.4th at p. 1065.)
        The People’s argument is untenable for three reasons. First, the People did not
plead that defendant was convicted in May 1994 of assault with a deadly weapon in case
number 153932, nor did they seek to amend the information at any time. They were
required by statute to plead the prior strike conviction. (§ 667, subds. (c), (e)(2);
§ 1170.12, subds. (a), (d); People v. Kilborn (1996) 41 Cal.App.4th 1325, 1332.)
        Second, the People never put the matter at issue. Their information does not refer
to defendant’s conviction for assault with a deadly weapon as a prior strike conviction.
At the hearing, the People did not argue that it was the basis for one. It is true that, as the
People contend, the prosecutor submitted evidence at the bench trial which showed that
defendant was convicted in 1994 for assault with a deadly weapon. However, the
prosecutor never made a direct reference to that conviction. He made what may have
been an oblique reference to it, as well as to defendant’s simultaneous conviction for
assault with force likely to cause great bodily injury, in discussing the charges relevant to
the People’s determinate sentencing enhancement allegations. However, he stated only
that defendant had previously been convicted of a strike and non-strike offense pursuant
to section 245, subdivision (a)(1). He did not identify which of defendant’s two May
1994 convictions constituted a strike conviction. This was an important omission
because in 1994, the crimes of assault with force likely to produce great bodily injury and
assault with a deadly weapon were both contained in that same subdivision, section 245,



                                              12
subdivision (a)(1).8 (Stats. 1993, ch. 369, § 1.) Thus, the prosecutor’s oblique reference
was too ambiguous to clarify the People’s allegations or put forward the assault with a
deadly weapon conviction as the basis for the court finding a prior strike conviction.
       Third, the trial court did not make any mention of, or finding regarding,
defendant’s conviction for assault with a deadly weapon. To the contrary, it specifically
ruled that defendant’s 1994 conviction for assault with force likely to produce great
bodily injury constituted a prior strike conviction. As we have discussed, this was
incorrect absent evidence that defendant in fact inflicted such an injury on the victim.
       The People also contend that the defense understood the People were relying on
defendant’s conviction for assault with a deadly weapon against Charles for the second
strike conviction because, shortly after the bench trial, the defense argued in its
sentencing memorandum that this particular conviction should be stricken and not be a
basis for a Three Strikes Law sentence. Given the evidence submitted by the prosecution
at the bench trial, it is not surprising that the defense would nonetheless argue that this
conviction should not be the basis for a Three Strikes Law sentence. Regardless, it is of
no consequence in light of the fact that at the bench trial, the People did not argue, nor
did the trial court find, that defendant’s conviction for assault with a deadly weapon
against Charles was the basis for his second strike.
       In short, the trial court found as defendant’s second strike conviction that he had
previously been convicted of assault with force likely to produce great bodily injury in
May 1994. The only such conviction was for defendant’s assault of Schneider in case
number 153902. Nothing in the record regarding that proceeding indicates that
defendant’s assault of Schneider included his infliction of great bodily injury upon her.
In the absence of any such evidence, the People did not meet their burden of proving this




       8
         Assault with a deadly weapon remains in section 245, subdivision (a)(1), but
assault with force likely to produce great bodily injury is now contained in section 245,
subdivision (a)(4).


                                              13
conviction constituted a second strike. We therefore vacate defendant’s sentence and
remand this matter to the trial court for further proceedings consistent with this opinion.9
       In light of our conclusions, we do not address the remainder of the parties’
arguments, including defendants’ contention that the People did not present evidence
sufficient to meet certain other elements of involuntary manslaughter.
                                      DISPOSITION
       Defendant’s conviction for involuntary manslaughter is reversed and his 25-years-
to-life sentence for assault of Taylor with a deadly weapon is vacated. This matter is
remanded to the trial court for further proceedings consistent with this opinion.



                                                  STEWART, J.


We concur.




KLINE, P.J.




RICHMAN, J.




       9
         The parties do not address what is permissible upon remand. We make no
determination regarding it. We only note that the People generally may retry strike
conviction allegations found on appeal to be unsupported by sufficient evidence without
double jeopardy acting as a bar. (People v. Sotello (2002) 94 Cal.App.4th 1349, 1354-
1357.)


                                             14
