Filed 4/9/20; Certified for Publication 4/23/20 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                               DIVISION EIGHT

THE PEOPLE,                                              B288528

        Plaintiff and Respondent,                        (Los Angeles County
                                                         Super. Ct. No. NA101672)
        v.

REMONDO BELL,

        Defendant and Appellant.


     APPEAL from a judgment of the Superior Court of Los
Angeles County, Mark C. Kim, Judge. Affirmed in part and
remanded with direction.

      Janet Gusdorff, under appointment by the Court of Appeal,
for Defendant and Appellant.

      Xavier Becerra, Attorney General, Lance E. Winters,
Assistant Attorney General, Steven D. Matthews and Gary A.
Lieberman, Deputy Attorneys General, for Plaintiff and
Respondent.
                              _________________________
       Remondo Bell was convicted of one count of attempted
robbery (Pen. Code, §§ 211, 664)1; one count of second degree
murder (§ 187, subd. (a)); and one count of hit and run driving
(Veh. Code, § 20001, subds. (a), (b)(1)). The jury found not true
the allegation that a principal was armed in the commission of
the attempted robbery. The trial court found true the allegations
that appellant had served four prior prison terms within the
meaning of section 667.5, subdivision (b). The trial court
sentenced appellant to a total term of 21 years to life in prison,
consisting of 15 years to life for the murder conviction, plus the
high term of three years for the attempted robbery conviction,
plus three 1-year terms for the section 667.5 enhancements.2
       Appellant appeals from the judgment of conviction, raising
13 claims of error: 1) he was convicted on legal theories
subsequently invalidated by Senate Bill No. 1437; 2) there is
insufficient evidence to support his conviction for the murder of
his accomplice Ernest Young under the provocative acts doctrine;
3) the trial court gave an erroneous instruction on the provocative
acts doctrine; 4) because Young was already dead, insufficient
evidence supports the murder conviction on the theory that he
killed Young by driving over him with a van; 5) the trial court
gave an erroneous instruction on felony murder; 6) the trial court
erred in failing to instruct the jury on causation; 7) the trial court
gave an incorrect and incomplete instruction on the defense of
unconsciousness; 8) the trial court erred in instructing the jury
on flight; 9) the trial court erred in instructing the jury on the

1       Further undesignated statutory references are to the Penal
Code.
2       The court chose to impose only three of the four terms.




                                  2
defense of necessity; 10) the trial court erred in failing to instruct
the jury on the defense of duress; 11) defense counsel’s failure to
object to portions of the testimony of the robbery victim, Erik
Sliskovich, constituted ineffective assistance of counsel;
12) cumulative error requires reversal; and 13) the section 667.5
enhancement terms must be stricken. The People contend the
abstract of judgment must be corrected to remove erroneous
presentence conduct credit.
      We agree the section 667.5, subdivision (b) enhancement
terms must be stricken and the matter remanded to the trial
court for resentencing. At that time, the abstract of judgment
should be corrected. As we explain in more detail below,
appellant has forfeited some of his substantive claims and others
lack merit. If there is instructional error, the errors are harmless
under any standard of review. We affirm the judgment of
conviction.

                         BACKGROUND
       In 2007 or 2008, Erik Sliskovich met appellant at a cigar
shop in Long Beach. Sliskovich, a cigar collector, knew appellant
as Mark. In 2011 or 2012 Sliskovich opened a cigar bar with
some partners. Sliskovich purchased high-end cigars from
appellant and always paid in cash. The payments ranged from a
few hundred to several thousand dollars.
       On March 26, 2015, appellant texted Sliskovich and asked
if he wanted to purchase Opus cigars. Initially, Sliskovich did
not respond. Eventually, they arranged to meet at Sliskovich’s
property on the morning of March 28, 2015. Sliskovich lived in
Wilmington and ran a car restoration business from his
residence. He had numerous surveillance cameras on the
property.




                                  3
       On March 28, 2015, Sliskovich opened the gate to the
parking area of his property and parked his truck across the
street. A U-Haul van drove into the parking lot and appellant got
out of the van. Sliskovich drove his own truck back into the lot,
parked, and got out. The two men exchanged greetings.
       Many of the subsequent events were recorded by the
surveillance cameras in the parking area of Sliskovich’s business.
Sliskovich himself had only fragmented memories of the events.
The videos were played for the jury at trial, and several witnesses
were asked questions based on events shown in the videos.
       The videos show that after exchanging greetings, appellant
and Sliskovich began walking toward the van. Appellant fell
behind. He waved at the van three times and three masked men
got out. One of the men was accomplice Ernest Young.
Appellant and the masked men moved toward Sliskovich, who
backed up until he reached the rear of a pick-up truck. The three
men surrounded and were very close to Sliskovich. A reasonable
viewer could describe their posture as threatening. The video
shows one of the masked men reaching out toward Sliskovich’s
torso. A video shot from a different angle shows appellant
reaching out toward Sliskovich’s back.
       Sliskovich recalled the three masked men getting out of the
van; he believed Young had a gun. Sliskovich was aware
appellant was behind him, but he began backing up. Sliskovich
also recalled that one or more of the men said, “Give me the
money, give it up.” Sliskovich believed that Young lifted his gun
in his direction. Surveillance video shows an object that
resembles a gun in Young’s hand, but the jury found not true the
allegation that a principal was armed with a firearm in the
commission of the attempted robbery.




                                4
       Sliskovich explained: “I wouldn’t say [Young’s] gun
provoked me to start shooting. I would say the confluence of
circumstances of guys with masks, [appellant] behind me . . . it’s
not just that one thing.” When appellant grabbed Sliskovich,
Sliskovich believed appellant was “one of the guys that was going
to kill me.” He explained, “I know [appellant] well enough, I can
identify him. The other guys were wearing masks. So the way
the situation is going down, there is no way I am going to survive
this at all.”
       Surveillance video shows Sliskovich shot Young in the left
hip as the group was at the rear of the pickup. Appellant was
reaching his arm toward Sliskovich’s back as the shot was fired;
appellant then grabbed or attempted to grab Sliskovich from
behind. Sliskovich fired at the two other masked men as they
backed away. He then turned toward and struggled with
appellant, shooting him multiple times. Appellant fell to the
ground and Sliskovich fired at one of the masked men, then at
Young. A bullet hit Young in the torso and he fell.
       According to Sliskovich, everything went gray and became
a blur for him. He recalled muzzle flashes and a struggle. He
recalled going inside his place, coming back outside, observing
that the van was leaving, looking at his hand and noticing his
own gun had the slide locked back, indicating it was out of
ammunition. He had been carrying the gun in his waistband. He
went back inside, got another gun, and returned outside to make
sure nobody was coming back.
       Young lay on the ground a couple of feet behind the van.
The masked man who had been driving the U-Haul leaned over
Young and appeared to retrieve something from the ground
resembling a handgun. He then ran out of the lot and down the




                                5
street. The other masked man also ran down the street.
Appellant managed to get into the driver’s seat of the van. He
backed up the van, in the process running over Young’s head and
torso. He then drove forward, running over Young a second time.
Young’s body was caught underneath the rear of the van.
Appellant drove the van for 2.5 miles, dragging Young’s body
along the way.
       Sliskovich called 911, his attorney, and a friend who was a
police detective.
       Police stopped the van, which displayed no license plate.
That morning the van had been reported stolen. There were no
cigars inside. Appellant exited the van and collapsed. He was
taken to a nearby hospital. He sustained three gunshot wounds
to his torso and needed multiple surgeries over the next five days.
       Deputy Medical Examiner Ogbonna Chinwah autopsied
Young. He determined the cause of death was a combination of
multiple gunshot wounds and blunt force trauma. The gunshot
wound to Young’s back, which passed through his aorta, was
fatal. The blunt force trauma to Young’s head and neck was also
fatal.
       At trial, Dr. Chinwah viewed surveillance video of the
incident. At 4 minutes 7 seconds on the video timestamp, he
observed Young move as he lay on the ground. This movement is
clearly visible. The prosecutor asked the doctor if he saw another
movement in Young’s upper body at the 4 minute 31 second
mark. The doctor replied, “Well, it appears there was a little bit
fuzzy.” We have reviewed the video, and it does appear there is
some sort of movement in Young’s upper body, although it is
fuzzy as the doctor pointed out. Dr. Chinwah testified movement




                                6
in the body is “indicative of life.” He agreed if a person is moving,
“[t]he person is not quite dead yet.”
       Appellant offered expert testimony by Dr. Frank Sheridan,
a forensic pathologist and former chief medical officer of the San
Bernardino County Coroner’s Office. Dr. Sheridan testified the
gunshot injury to the aorta was the sole cause of death and
Young was already dead when the van ran over him. In Dr.
Sheridan’s opinion, as soon as the aorta was pierced, Young’s
circulation stopped and he was dead. He characterized the
movements on the video as “death throws” or spasms, which he
described as involuntary muscle twitching and nerve discharge
“as the person is dying.” Dr. Sheridan added there is a term in
pathology called “agonal” and “it means dying. In the process of
dying.”

                            DISCUSSION
       The prosecutor sought to hold appellant liable for Young’s
death under two alternate theories which hinged on when Young
actually died. The first theory required a finding that Young was
still alive after being shot and appellant caused or contributed to
Young’s death by running over him. Three factual scenarios fit
this theory: (1) appellant ran over Young with the van while the
robbery was ongoing (first degree felony murder); (2) appellant
ran over Young with awareness of the danger to human life and
in conscious disregard thereof after the robbery was over (second
degree murder); (3) appellant ran over Young after the robbery
was over, failing to stop, but fault was not an issue (hit and run
causing death).
       The second theory required a finding that Young was killed
by Sliskovich and died before appellant ran over him. Under this
theory, appellant committed a provocative act during the robbery,




                                  7
provoking Sliskovich to respond by shooting and killing Young.
Such a murder should have been first degree murder, because the
underlying crime was robbery.
       The jury found appellant guilty of attempted robbery,
murder in the second degree, and simple hit and run. The jury
found appellant not guilty of hit and run causing death. Both
appellant and respondent believe murder in the second degree
has to be based on appellant running over a still-living Young
after the robbery was complete. They correctly reason such a
verdict would be inconsistent with the not guilty finding on the
hit and run causing death.
       Both parties contend, and we agree, it is not possible to
determine which theory the jury relied on to convict appellant of
second degree murder.3 Inconsistent verdicts are allowed to
stand if they are otherwise supported by substantial evidence.
(People v. Miranda (2011) 192 Cal.App.4th 398, 405.) “An
inconsistency may show no more than jury lenity, compromise, or
mistake, none of which undermines the validity of a verdict.”
(People v. Lewis (2001) 25 Cal.4th 610, 656.) Appellant
acknowledges as much, but contends the inconsistency can
impact an analysis of possible prejudice from trial court errors.
       We do not agree. The inconsistency does not hamper our
analysis on appeal. As set forth in more detail below, we find
sufficient evidence to support both theories of murder. We do not

3     We note that if the verdicts are based on compromise,
mistake, or leniency, the jury might have relied on the
provocative act doctrine, but also agreed it was second degree
murder for one of those reasons. The last sentence of the
provocative acts instruction gratuitously told the jury: “Murder
which is not of the first degree in murder of the second degree.”




                                8
need to rely on a particular theory of murder to assess appellant’s
other claims of prejudice.

I.    Appellant Must Follow The Procedures In Section
      1170.95 To Raise His Claim The Prosecutor Relied
      On Legal Theories Now Invalidated By Senate Bill
      No. 1437.
      Appellant contends two of the prosecution’s legal theories
have been rendered legally incorrect by the passage of Senate Bill
No. 1437 during the pendency of this appeal. Appellant contends
because it cannot be determined on which theory the jury relied,
reversal is required. Senate Bill No. 1437 amended section 189
to require proof that appellant was the actual killer, aided and
abetted the murder with the specific intent to kill, or “was a
major participant in the underlying felony and acted with
reckless indifference to human life.” (§ 189, subd. (e).) Section
188 was amended to provide: “Except as stated in subdivision (e)
of Section 189, in order to be convicted of murder, a principal in a
crime shall act with malice aforethought. Malice shall not be
imputed to a person based solely on his or her participation in a
crime.” (§ 188, subd. (a)(3).)
      Senate Bill No. 1437 also added section 1170.95 to the
Penal Code, which sets out a procedure by which a defendant
currently serving a sentence for murder based on the felony
murder rule or the natural and probable consequences doctrine
may petition for relief in the trial court. Appellant acknowledges
that our colleagues in Division 5 of this District have concluded
that a defendant whose case was pending when Senate Bill
No. 1437 became law must use the mechanism of section 1170.95
to obtain relief. (People v. Martinez (2019) 31 Cal.App.5th 719.)




                                 9
       Appellant urges us not to follow Martinez. We agree with
the reasoning of Martinez and decline appellant’s invitation to
reject the reasoning of that case and permit him to seek relief in
this appeal. The legal theories argued by the People were valid
when argued and when appellant was convicted. Appellant’s
arguments must be addressed in the first instance to the trial
court. In this regard, we also decline appellant’s invitation to
stay the appeal until he has filed a petition to obtain relief under
section1170.95. We find no good cause for such a stay.

II.   The Surveillance Video Provides Sufficient Evidence
      To Support A Conviction Under The Provocative Acts
      Doctrine.
      Appellant contends the jury might have convicted him of
second degree murder under the provocative acts doctrine, but
there is insufficient evidence to support such a conviction. He
claims that “other than Mr. Young’s alleged pointing a gun to
induce [the victim] to surrender cash, there was no evidence of
any life-threatening acts.” Appellant contends Young’s act was
necessary for the robbery and so does not qualify as a provocative
act. He contends the other circumstances – three men wearing
masks, joining a fourth unmasked man, surrounding the victim
and demanding money from him – did not present a high
probability that the victim would pull a gun and shoot at the
robbers. Appellant further contends a conviction based on
insufficient evidence would violate his Fifth Amendment right to
due process and his Sixth Amendment right a jury trial. We are
not persuaded.
      A.     Relevant Law
      Under the provocative act doctrine, the perpetrator of a
crime may be held liable for the killing of an accomplice by the




                                 10
victim of the crime or a third party. (People v. Gonzalez (2012)
54 Cal.4th 643, 655.) “A provocative act is one that goes beyond
what is necessary to accomplish an underlying crime and is
dangerous to human life because it is highly probable to provoke
a deadly response.” (Id. at p. 655.) An accomplice may be held
liable for the provocative act of a surviving accomplice, but is not
liable where “ “the deceased provocateur accomplice is the sole
cause of his [own] death.’ ” (People v. Hunter (2017)
15 Cal.App.5th 163, 171.)
       “ ‘When considering a challenge to the sufficiency of the
evidence to support a conviction, we review the entire record in
the light most favorable to the judgment to determine whether it
contains substantial evidence—that is, evidence that is
reasonable, credible, and of solid value—from which a reasonable
trier of fact could find the defendant guilty beyond a reasonable
doubt.’ [Citation.] We determine ‘whether, after viewing the
evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.’ [Citation.] In so doing, a
reviewing court ‘presumes in support of the judgment the
existence of every fact the trier could reasonably deduce from the
evidence.’ [Citation.] ‘This standard applies whether direct or
circumstantial evidence is involved.’ [Citation.]” (People v. Avila
(2009) 46 Cal.4th 680, 701.)
       B.     Substantial Evidence Supports Appellant’s
              Conviction.
       The jury found not true the allegation that a principal was
armed in the commission of the robbery. Thus, there is no
reasonable possibility that the jury relied on Young pointing a
gun as the provocative act.




                                 11
       Surveillance video does show an object in Young’s hand,
which resembles a gun, and it is visible as soon as he exits the
van. As the People pointed out in closing argument, Sliskovich
did not fire at the sight of the object, which he believed was a
gun. Even when the masked men advanced toward Sliskovich,
Sliskovich simply backed up. It was only when Sliskovich could
no longer back up, the men had moved in very close to him, and
appellant and at least one other robber reached out toward him
that Sliskovich reacted. A jury could find that this crowding and
grabbing conduct was not necessary to the commission of the
robbery and instead suggested that Sliskovich was going to be
physically harmed. A jury could further find the natural
consequences of such threatening behavior were dangerous to
human life and appellant and the other robber acted in conscious
disregard of that danger.
       Appellant contends the men’s behavior did not suggest that
Sliskovich would be killed even if he cooperated in the robbery.
Not so. Appellant elected not to conceal his identity, and this
decision, coupled with the men’s behavior, could and did
reasonably suggest to Sliskovich (and any reasonable person in
his place) that appellant would not let him survive the robbery.
       Appellant also contends there was not a high probability
that Sliskovich would be carrying a concealed handgun during
the robbery. First, there is no requirement that a victim be
armed with a firearm. Appellant chose to attack the victim at his
place of residence/business. On hand at the location were many
objects likely to be used in the victim’s business and residence,
like kitchen knives and tools, which also could have been used to
inflict fatal injuries. Second, appellant’s conduct was threatening
and highly likely to provoke a defensive response. That




                                12
Sliskovich happened to have a gun on him and used it to defend
himself instead of, say, his fists, does not temper the provocative
nature of appellant’s conduct. Third, appellant knew Sliskovich’s
business was cash-based. It is highly probable the proprietor of a
cash-based business would arm himself during a cash
transaction, where, as here, Sliskovich was by himself when he
met up with appellant.
       Further, once Sliskovich shot Young the first time, which
put appellant on notice that Sliskovich was armed, appellant
nevertheless grabbed Sliskovich and struggled with him for
control of the gun. This was clearly unnecessary to the robbery
and the natural consequences were dangerous to human life.
A jury could reasonably find appellant acted with conscious
disregard of human life. It was only after Sliskovich prevailed in
this struggle with appellant that he fired the fatal shot at the
fleeing Young.
       “If we determine that a rational trier of fact could have
found the essential elements of the crime proven beyond a
reasonable doubt, the due process clause of the United States
Constitution is satisfied [citation], as is the due process clause of
article I, section 15, of the California Constitution.” (People v.
Osband (1996) 13 Cal.4th 622, 690 (Osband).) We have so
determined, and appellant’s constitutional claims fail.

III.  The Provocative Act Instruction Correctly States The
      Law.
      Appellant contends CALJIC 8.12, which instructed the jury
on the provocative act doctrine, was defective in three ways: 1) it
did not tell the jury that appellant could not be found guilty if the
only provocative act was committed by Young; 2) it improperly
permitted the jury to find that appellant’s mere participation in




                                 13
the attempted robbery was a provocative act; and 3) it omitted
the foreseeability element. We do not agree.
       The instruction states the killing must occur “in response to
an intentional provocative act by a perpetrator of the crime other
than the deceased perpetrator” and the People must prove
“defendant also committed an intentional provocative act.” Thus,
the instruction directly told the jury it could not convict appellant
if the only provocative act was committed by Young, the
decedent.
       The instruction also told the jury “the provocative act must
be an act beyond that necessary simply to commit the crime.”
Thus, the instruction did not permit the jury to convict appellant
solely on the basis of his participation in the robbery. Appellant
contends this sentence is inadequate because the underlying
crime was “armed robbery” but the crime listed in the instruction
was merely “attempted robbery.” Appellant claims the jury
might have concluded the provocative act could be Young’s use of
a weapon. The instruction required a provocative act by
appellant and there was no suggestion that he was armed.
Further, the jury found not true the allegation that a principal in
the robbery was armed.4 Assuming for the sake of argument the
instruction should have listed the crimes as robbery with a
firearm, any error is harmless under any standard of review.
       Finally, appellant contends that because the instruction
used only the term “natural” and not “natural and probable” the

4     There is no such offense as “armed robbery.” The offense of
robbery requires only an unlawful taking from the presence of
another taking by fear or force. (§ 211.) If a robber uses a
firearm, that is charged as an enhancement to the crime of
robbery.




                                 14
instruction failed to require the jury to find it was objectively
foreseeable there was a high probability the act would result in
someone’s death. Appellant contends the instruction’s use of the
term “natural consequences” is not normally a problem because
the instruction contemplates the court will also give CALJIC Nos.
3.40 and 3.41 on causation, and those two instructions also
discuss foreseeability. Considering CALJIC No. 8.12 in isolation,
we see no error in the use of the term “natural consequences.”
      In the classic provocative act doctrine, malice is implied
from the provocative act. (People v. Concha (2009) 47 Cal.4th
653, 662–663 (Concha).) Implied malice has both objective and
subjective components. The objective test requires “ ‘ “an act, the
natural consequences of which are dangerous to life.” ’ ” (People
v. Knoller (2007) 41 Cal.4th 139, 143.) Thus, CALJIC No. 8.12
used appropriate terminology.
      Court have also used appellant’s preferred formulation,
stating that malice is implied from “ ‘ “an act that involves a high
degree of probability that it will result in death.” ’ ” (Concha,
supra, 47 Cal.4th at p. 663, quoting People v. Washington (1965)
62 Cal.2d 777 782.) If appellant preferred this alternate
phrasing, he should, at a minimum, have requested the
instruction be modified. He did not. The objection is waived.
(People v. Young (2005) 34 Cal.4th 1149, 1202 (Young) [failure to
request clarification forfeits issue on appeal].)

IV.   Sufficient Evidence Supports An Inference That
      Young Was Alive When The Van Hit Him, And So
      Supports The Murder Conviction.
      Appellant contends the jury might have convicted him of
second degree murder on the theory that he killed Young when
he drove the van over him. He contends such a conviction would




                                15
not be supported by substantial evidence because it was
speculative whether Young was still alive at that point. He
further contends that such a conviction would violate his federal
constitutional rights to due process and a jury trial. We do not
agree.
      The coroner, Dr. Chinwah, listed two causes of death on the
autopsy report: the gunshot wounds and the blunt force trauma.
Each would be fatal, meaning each would cause death. When
questioned about the two causes, Dr. Chinwah testified that
death was caused by the “combination of multiple gunshot
wounds and blunt force trauma” from the van. He could not say
how long death would take from either injury.
      Dr. Chinwah was shown a video of the moments before the
van ran over Young. He agreed that there was movement by
Young at the timestamp of 4 minutes 7 seconds. The prosecutor
stopped the video at about 4 minutes 31 seconds and asked Dr.
Chinwah if he saw any movement. The doctor replied, “Well, it
appears there was a little bit fuzzy.” We have reviewed this video
and there appears to be a brief movement by Young at about the
4 minute 31 second mark. We also observed a similar brief
movement a few seconds later, at about the 4 minute 33 to 34
second mark. Dr. Chinwah opined when a person is moving, he is
“not quite dead yet.” He testified, “People who are alive move.”
      Appellant’s expert Dr. Sheridan offered a different opinion
on the cause and timing of death. When asked about Young's
movements on the ground, however, Dr. Sheridan described the
movements as ones which occur “as the person is dying” or “in the
process of dying.” Thus, Dr. Sheridan implicitly acknowledged
that Young was not yet dead when he was moving on the ground.




                               16
       The two experts’ testimony plus the video evidence is
sufficient to support a finding that Young was still alive when the
van ran over him. Somewhere between four and eight seconds
elapsed between the last visible movement of Young’s body and
the van making contact with his head. A jury could reasonably
decide that Young was still in the process of dying at that point,
and not yet dead. The reasonableness of such a finding is
underscored by the fact that only about 42 seconds elapsed in
total between the gunshot wounds to the aorta and the blunt
force trauma from the van.5
       Because we have determined “that a rational trier of fact
could have found the essential elements of the crime proven
beyond a reasonable doubt, the due process clause of the United
States Constitution is satisfied [citation], as is the due process
clause of article I, section 15, of the California Constitution.”
(Osband, supra, 13 Cal.4th at p. 690.)

V.    Appellant Has Forfeited His Claim that CALJIC
      No. 8.10 Is Ambiguous.
      Appellant contends the trial court erred in giving CALJIC
No. 8.10, which explained felony murder, because the instruction
permitted the jury to find him guilty of murder as long it found
Young was killed by Sliskovich during the commission of the
attempted robbery, regardless of appellant’s individual role.
Appellant acknowledges the instruction is a correct statement of
the law when a defendant causes death, but contends it does not
embody the law where the shooter is a third party.


5     Dr. Sheridan testified the video showed Young being shot
at 3 minutes 56 seconds and run over at 4 minutes 38 seconds.




                                17
       The jury was given an instruction on the law applicable
when the killer is a third party. Appellant’s claim in substance is
that CALJIC No. 8.10 is ambiguous under the circumstances of
this case. His failure to request a clarification instruction forfeits
this claim. (Young, supra, 34 Cal.4th at pp. 1202–1203.)
       Assuming for the sake of argument the claim is not
forfeited, we would ask “ ‘whether there is a reasonable likelihood
that the jury misunderstood and misapplied the instruction.’ ”
(Young, supra, 34 Cal.4th at p. 1202.) We consider the
instructions as whole, not parts of an instruction or a single
instruction. (Ibid.) We also consider the arguments of counsel.
(Ibid.)
       We do not find the instruction ambiguous. The instruction
states “Every person who unlawfully kills a human being during
the commission or attempted commission of Robbery is guilty of
the crime of murder.”6 This language on its face tells the jury
that the “person who unlawfully kills” is guilty of murder. In
common understanding, this would refer to the person who
inflicted the fatal injury. In this context, appellant would be the
“person who unlawfully kills” if Young was alive when appellant
drove the van over him.

6      CALJIC 8.10 provides in full: “Defendant is accused in
Counts 3 of having committed the crime of murder, a violation of
section 187 of the Penal Code. [¶] Every person who unlawfully
kills a human being during the commission or attempted
commission of Robbery is guilty of the crime of murder in
violation of Penal Code section 187. [¶] In order to prove this
crime, each of the following elements must be proved: [¶]
1. A human being was killed; [¶] 2. The killing was unlawful; and
[¶] 3. The killing occurred during the commission or attempted
commission of Robbery.”




                                 18
       CALJIC No. 8.10 was immediately followed by CALJIC
No. 8.12, which specifically set forth the detailed alternate
requirements for finding appellant guilty of murder if Sliskovich,
the victim of the robbery, killed Young. The jury was instructed
to “[c]onsider the instructions as a whole and each in light of all
the others.” The prosecutor argued appellant would be guilty of
felony murder (CALJIC No. 8.10) or second degree murder if he
killed Young by running over him with the van. The prosecutor
also argued the provocative act doctrine applied if the gunshot
wounds from Sliskovich killed Young. Appellant suggests no
reason why the jury would misunderstand the combination of
instructions and argument and then convict appellant of murder
simply because Sliskovich shot Young during the robbery without
provocation. We find no reasonable probability or possibility the
jury understood CALJIC No. 8.10 in the manner suggested by
appellant. (Young, supra, 34 Cal.4th at p. 1202–1203.)

VI.    The Trial Court’s Failure To Instruct The Jury With
       CALJIC Nos. 3.40 And/Or 3.41 Was Not Prejudicial.
       The trial court expressed its intention to give CALJIC
No. 3.41 on causation, but then did not do so, apparently
inadvertently. The trial court did not find CALJIC No. 3.40
applicable to the facts of this case.
       CALJIC No. 3.40 provides: “[To constitute the crime of [ ]
there must be in addition to the (result of the crime) an unlawful
[act] [or] [omission] which was a cause of that (result of the
crime).] [¶] The criminal law has its own particular way of
defining cause. A cause of the (result of the crime) is an [act] [or]
[omission] that sets in motion a chain of events that produces as
a direct, natural and probable consequence of the [act] [or]




                                 19
[omission] the (result of the crime) and without which the (result
of the crime) would not occur.”
       CALJIC No. 3.41 provides: “There may be more than one
cause of the (result of the crime). When the conduct of two or
more persons contributes concurrently as a cause of the (result of
the crime), the conduct of each is a cause of the (result of the
crime) if that conduct was also a substantial factor contributing
to the result. A cause is concurrent if it was operative at the
moment of the (result of the crime) and acted with another cause
to produce the (result of the crime). [¶] [If you find that the
defendant’s conduct was a cause of (injury, death, etc.) to another
person, then it is no defense that the conduct of some other
person [, even the [injured] [deceased] person,] contributed to the
(injury, death, etc.).]”
       When causation is an issue, the court is required to instruct
the jury on the subject. (People v. Bernhardt (1963)
222 Cal.App.2d 567, 591.)
       Appellant contends that causation was an issue. His
defense was that the blunt force trauma from the van was not the
sole cause of death of Young. He contended the gunshot wound
was the sole cause of death. We see no reasonable probability or
possibility that appellant would have received a more favorable
outcome if either or both of these instructions had been given.
       Both experts testified the gunshot wounds inflicted by
Sliskovich were fatal. Dr. Chinwah testified the blunt force
trauma was also fatal. Defense expert Dr. Sheridan did not
dispute that the blunt force trauma would have caused death in a
living person; he just disagreed that Young was still alive when
the van ran over him. Thus, the issues for the jury were
credibility and timing questions about whether Young was still




                                20
alive when the van ran over him. If, as Dr. Sheridan opined and
as appellant argued, Young was dead before the van ran over
him, the van could not have caused Young’s death. CALJIC Nos.
3.40 and 3.41 would not have given the jury any useful guidance
on those issues.
       Appellant’s defense was not only that the gunshot wounds
were the sole cause of death, but also that he was not responsible
for the gunshots under the provocative act doctrine. As appellant
points out, the use note to the provocative act instruction
indicates that “cause” should be defined using CALJIC No 3.40
and/or No. 3.41. In this context, however, the required causal
nexus is between the defendant’s provocative act and the killing
by the third party. As appellant correctly points out, the People
must prove that “defendant’s conduct proximately caused the
killing.” (People v. Briscoe (2001) 92 Cal.App.4th 568, 583.)
As the Briscoe court further explained: “To be considered the
proximate cause of the victim’s death, the defendant’s act must
have been a substantial factor contributing to the result, rather
than insignificant or merely theoretical. [Citations.]
A defendant’s provocative acts must actually provoke a victim
response resulting in an accomplice’s death.” (Id. at
pp. 583--584.)
       We note appellant’s defense was not that his conduct failed
to actually provoke Sliskovich. Rather, it was that the natural
consequences of his conduct were not dangerous to human life,
and so did not meet the requirements for an “intentional
provocative act.” This is a foreseeability argument, and we have
discussed it in Section III, ante. CALJIC No. 3.40 would have
advised the jury that the consequence must be “natural and
probable” but as we explained above, the word “probable” is not




                               21
necessary. Thus, there is no reasonable probability or possibility
that appellant would have received a more favorable verdict if
CALJIC No. 3.40 had been given, or to use appellant’s preferred
formulation, that the absence of the instruction contributed to
the verdict against appellant.
      Appellant also argues that the absence of causation
instructions led the jury to find appellant guilty of felony hit and
run causing death but then due to leniency or the necessity
defense decided to find him guilty of only the lesser included
offense of simple hit and run. Appellant’s leniency theory is both
speculative and nonsensical, and as such it fails. As to the
necessity defense, we see no relationship between the lack of a
causation instruction and the necessity instruction. We discuss
appellant’s claims about the necessity instruction itself below.

VII. The Trial Court’s Instruction On The Defense Of
      Unconsciousness Was Superfluous.
       The trial court gave the jury CALJIC No. 12.72, which
explains the defense of unconsciousness to a charge of violating
Vehicle Code section 20001. Appellant contends the instruction
was inaccurate and incomplete because it only referred to
unconsciousness caused by an accident and failed to define the
term unconscious.
      As appellant acknowledges, he did not request an
instruction on the defense of unconsciousness and did not rely on
that defense. In fact, it appears that an unconsciousness defense
would have been inconsistent with his proffered defense of
necessity.
      Appellant contends, correctly, that a trial court has a sua
sponte duty to give an instruction on unconsciousness when the
evidence “indicates” unconsciousness. (People v. Newton (1970)




                                 22
8 Cal.App.3d 359, 377–378.) More generally, “[i]t is well settled
that a defendant has a right to have the trial court, on its own
initiative, give a jury instruction on any affirmative defense for
which the record contains substantial evidence . . . unless the
defense is inconsistent with the defendant’s theory of the case.”
(People v. Salas (2006) 37 Cal.4th 967, 982.) This duty, if
applicable, would have warranted a more general instruction on
unconsciousness, which would have been applicable to the
murder charges as well. We see no such evidence here.
       Appellant was injured at the crime scene. He collapsed
after driving for about 2.5 miles, but there is nothing to suggest
he was “unconscious” at the crime/accident scene. Appellant
appeared to act in a conscious manner—starting the van,
reversing it out of its parking place, driving forward between the
gates, turning in the direction of one of the other robbers,
stopping the van near that robber, making some sort of contact
with the robber, turning again and ending up on the Pacific Coast
Highway. It is true that an unconscious person may act
physically without mental awareness of his actions, but this set
of facts does not “indicate” such a state. It is not reasonable to
infer unconsciousness from gunshot wounds and a later collapse,
particularly when that collapse occurred after driving two miles
from the scene without hitting anything.
       Because appellant did not rely on the defense of
unconsciousness, and the evidence did not in fact support the
defense, the trial court did not err in failing to define
unconsciousness or in failing to give a broader or more general
instruction on that defense. The instruction was superfluous.




                               23
VIII. The Trial Court Did Not Err In Instructing The Jury
       With CALJIC No. 2.52 On Flight After The
       Commission Of A Crime.
       Appellant contends there was no evidence to support an
instruction on flight after the commission of the crimes, and so
the trial court erred in instructing the jury on flight with CALJIC
No. 2.52. He further contends the language of CALJIC No. 2.52
is improperly broad. There is sufficient evidence to support the
instruction. Appellant has forfeited his claim that the instruction
is too broad.
       Appellant contends the only reasonable inference from the
evidence is that he left the crime scene to avoid further attack,
and possibly to seek medical attention. That is only one inference
from the evidence. Appellant did not stop and call for help as
soon as he was safely out of the parking area and out of
Sliskovich’s sight. This fact presents a second inference. A jury
could reasonably infer appellant continued to drive after exiting
the parking area because he was aware he had committed a
crime and did not want to be found near the crime scene.
       The trial court instructed the jury on flight using CALJIC
No. 2.52.7 This instruction is correct, and “defendant’s failure to
propose any modification to the instruction forfeits the claim of
instructional error.” (People v. Rangel (2016) 62 Cal.4th
1192, 1223.)

7      CALJIC No. 2.52 provides: “The flight of a person
immediately after the commission of a crime, or after he is
accused of a crime, is not sufficient in itself to establish his guilt,
but is a fact which, if proved, may be considered by you in the
light of all other proved facts in deciding whether a defendant is
guilty or not guilty. The weight to which this circumstance is
entitled is a matter for you to decide.”




                                  24
IX.   Any Error In Instructing on the Defense of Necessity
      Was Not Prejudicial.
      Appellant contends the trial court erred in including the
following requirement in CALJIC No. 4.43 on the defense of
necessity: “The defendant reported to the proper authorities
immediately after attaining a position of safety from the peril.”
He contends this requirement applies only to prison escape
cases.8
      No cases have expressly held that the reporting
requirement is inapplicable to crimes other than prison escape,
and we see no basis for such a limitation. Necessity is an
extremely limited defense and “the common law necessity defense
‘require[d] the individual committing the crime to report to the
proper authorities immediately after attaining a position of

8      CALJIC No. 4.43 provides in full: “A person is not guilty of
[the] crimes of hit and run resulting in death as charged in Count
2 and Second Degree Murder when he engages in an act,
otherwise criminal, through necessity. The defendant has the
burden of proving by a preponderance of the evidence all of the
facts necessary to establish the elements of this defense, namely:
[¶] 1. The act charged as criminal was done to prevent a
significant and imminent evil, namely, a threat of bodily harm to
oneself or another person; [¶] 2. There was no reasonable legal
alternative to the commission of the act; [¶] 3. The reasonably
foreseeable harm likely to be caused by the act was not
disproportionate to the harm avoided; [¶] 4. The defendant
entertained a good-faith belief that his act was necessary to
prevent the greater harm; [¶] 5. That belief was objectively
reasonable under all the circumstances; and [¶] 6. The defendant
did not substantially contribute to the creation of the emergency;
and [¶] 7. The defendant reported to the proper authorities
immediately after attaining a position of safety from the peril.”




                                25
safety from the peril.’ ” (People v. Mehaisin (2002)
101 Cal.App.4th 958, 965 [considering statutory defense of
necessity to child abduction charge].)
      Assuming for the sake of argument the trial court erred in
including the reporting requirement, there is no reasonable
probability or possibility that the error contributed to the verdict
against appellant, or that he would have received a more
favorable verdict in the absence of the error. As the jury was
correctly instructed, another requirement of the defense of
necessity is that the defendant did not substantially contribute to
the emergency. The jury found appellant guilty of attempted
robbery, and this finding show the jury believed appellant did
contribute to the emergency. On these facts and with the jury’s
other findings, the defense of necessity was not available.

X.     The Evidence Did Not Support An Instruction On The
       Defense of Duress.
       In a supplemental brief, appellant contends the trial court
had a sua sponte duty to instruct the jury on the defense of
duress. We do not agree.
       A trial court is required to instruct on duress sua sponte
when there is substantial evidence supporting the defense and it
is not inconsistent with the defendant’s theory of the case.
(People v. Powell (2018) 6 Cal.5th 136, 164.) “Duress is available
as a defense to defendants who commit a crime ‘under threats or
menaces sufficient to show that they had reasonable cause to and
did believe their lives would be endangered if they refused.’
(§ 26, subd. six; People v. Otis (1959) 174 Cal.App.2d 119, 124–
125, [344 P.2d 342].) An essential component of this defense is
that the defendant be faced with a direct or implied demand that
he or she commit the charged crime. ‘The defense of duress,




                                26
unlike the necessity justification, requires that the threat or
menace be accompanied by a direct or implied demand that the
defendant commit the criminal act charged.’ (People v. Steele
(1988) 206 Cal.App.3d 703, 706 [253 Cal.Rptr. 773] [duress not
available as a defense when inmate escaped in response to
threats of bodily injury because persons making threats did not
demand that defendant escape].) In contrast, the necessity
defense is available when the defendant reasonably believed
there was a threat of harm and no other means to alleviate the
harm, and the harm sought to be avoided by the defendant’s
conduct was greater than the harm sought to be prevented by the
law defining the charged offense.” (People v. Saavedra (2007)
156 Cal.App.4th 561, 567.)
      Here, there is no evidence that Sliskovich demanded
appellant commit the crime of hit and run. The defense of duress
does not apply to the crime of murder (People v. Anderson (2002)
28 Cal.4th 767, 784), but there is likewise no evidence that
Sliskovich demanded appellant kill Young. The trial court had
no duty to instruct on a duress defense.

XI.   Appellant Has Not Met His Burden Of Demonstrating
      Ineffective Assistance Of Counsel.
      Appellant contends his counsel was ineffective in failing to
object to Sliskovich’s testimony “narrating key portions of the
shooting that he admittedly had no consciousness of.” He
contends that testimony was not based on personal knowledge
and so Sliskovich should not have been permitted to testify about
it. (Evid. Code, § 702.) He also contends Sliskovich’s testimony
amounted to an improper lay opinion. (Evid. Code, §§ 800, 803.)




                                27
       Appellant has the burden of proving ineffective assistance
of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) To
establish such a claim, appellant must show his counsel’s
performance fell below an objective standard of reasonableness,
and, but for counsel’s error, a different result would have been
reasonably probable. (Strickland v. Washington (1984)
466 U.S. 668, 687–688, 694; People v. Ledesma (1987) 43 Cal.3d
171, 216–218.) “A reasonable probability is a probability
sufficient to undermine confidence in the outcome.” (Strickland
v. Washington, at p. 694.) “ ‘ “Because of the difficulties inherent
in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the
challenged action ‘might be considered sound trial strategy.’ ” ’
[Citations.]” (People v. Thomas (1992) 2 Cal.4th 489, 530–531.)
       “When a claim of ineffective assistance is made on direct
appeal, and the record does not show the reason for counsel’s
challenged actions or omissions, the conviction must be affirmed
unless there could be no satisfactory explanation.” (People v.
Anderson (2001) 25 Cal.4th 543, 569.)
       Initially, appellant has forfeited much of this claim by
failing to make specific arguments related to specific testimony.
For example, he contends Sliskovich had no memory or
awareness after he went “gray,” and cites a string of pages in the
reporter’s transcript. The first cite is to pages 361 through 362.
At those pages, Sliskovich clearly testifies he has fragments of
memories about events before during and after the shooting.
Appellant has not cited and we are aware of any authority
barring testimony from a witness with only a partial memory of




                                 28
events, particularly when the witness makes clear that the
memories are partial.
      Appellant also contends Sliskovich answered questions
based only on his review of the videos and this amounted to an
improper lay opinion. Appellant has not overcome the
presumption that counsel’s failure to object was sound trial
strategy. Appellant does not discuss whether Sliskovich’s
narration was accurate or not. If it was accurate, defense counsel
could have made a reasonable tactical decision not to object to
such accurate testimony on the ground that an objection would
simply highlight the testimony without gaining anything in
return. If the testimony was not accurate, defense counsel could
have made a reasonable tactical decision to wait and draw
attention to this problem during closing argument, where he
could highlight any inaccuracy or potential dishonesty. As our
Supreme Court has repeatedly pointed out, “ ‘[a]n attorney may
choose not to object for many reasons, and the failure to object
rarely establishes ineffectiveness of counsel.’ [Citation.]” (People
v. Avena (1996) 13 Cal.4th 394, 442–443.)
      In addition, appellant has failed to demonstrate prejudice
from Sliskovich’s testimony. He contends Sliskovich’s testimony
“bolster[ed] himself as a victim rather than an aggressor” but the
“bolstering” part of Sliskovich’s testimony described his emotions,
thoughts, and reactions as the robbers approached him. That
testimony was based on personal knowledge and not subject to
the objections appellant suggests on appeal. His claim of
ineffective assistance fails.




                                29
XII. There Is No Cumulative Prejudicial Effect.
       Appellant contends the inconsistent verdicts prevent an
accurate assessment of prejudice and the numerous instructional
errors and unreliable evidence combined to deprive him of a fair
trial. We have found substantial evidence to support appellant’s
convictions under both theories proffered by the prosecution.
Although we have found the trial court may have made some
instructional errors, the errors were minor and not prejudicial.
“The assumed errors are no more compelling when considered
together.” (People v. Avila (2006) 38 Cal.4th 491, 615.

XIII. Appellant’s Section 667.5 Enhancement Terms Are
      Ordered Stricken And This Matter Is Remanded For
      Resentencing And for Correction Of Conduct Credits.
      Appellant contends his three 1-year enhancement terms for
prior prison terms imposed pursuant to section 667.5, subdivision
(b) must be stricken in light of Senate Bill No. 1361. Respondent
agrees. We agree as well.
      The provisions of Senate Bill No. 136l went into effect on
January 1, 2020, while this appeal was pending. The revised
version of section 667.5, subdivision (b) provides for a one-year
enhancement only if the underlying prior conviction was for a
sexually violent offense. None of appellant’s prior prison terms
was for such an offense. Because the amendment to section 667.5
reduces punishment, it is presumed to apply retroactively. (See
People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 314.)
      Respondent contends the matter must be remanded for
resentencing to permit the trial court to reconsider whether to
impose the sentence for the hit and run conviction consecutively.
We agree that the trial court is entitled to reconsider appellant’s
entire sentence.




                                30
       Respondent contends the abstract of judgment incorrectly
awards appellant 1055 days of conduct credit in addition to 1055
days of actual custody credit. Appellant was not entitled to
conduct credit and the trial court did not in fact award such
credit. (See People v. Ly (2001) 89 Cal.App.4th 44, 47 [no
presentence conduct credit following murder conviction].)
Because we are remanding this matter for resentencing,
respondent should seek correction of the abstract in the trial
court.
                          DISPOSITION
       The section 667.5 enhancement allegations and
accompanying terms are ordered stricken and the matter is
remanded for resentencing. We affirm the judgment of conviction
in all other respects.




                                        STRATTON, J.

We concur:




             BIGELOW, P. J.




             WILEY, J.




                              31
Filed 4/23/20
                     CERTIFIED FOR PUBLICATION

       IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                      SECOND APPELLATE DISTRICT

                              DIVISION EIGHT

THE PEOPLE,                               B288528

       Plaintiff and Respondent,          (Los Angeles County
                                          Super. Ct. No. NA101672)
       v.
                                          ORDER CERTIFYING
REMONDO BELL,                             OPINIOIN FOR PUBLIATION

       Defendant and Appellant.           [NO CHANGE IN JUDGMENT]



THE COURT:
       The opinion in the above-entitled matter filed on April 9, 2020, was not
certified for publication in the Official Reports. For good cause, it now
appears that the opinion should be published in the Official Reports and it is
so ordered.
       There is no change in the judgment.




________________________________________________________________________
BIGELOW, P. J.                STRATTON, J.                    WILEY, J.
