Filed 8/20/14 P. v. Daley CA2/7
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION SEVEN


THE PEOPLE,                                                          B248219

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. NA074833)
         v.

EVA DALEY,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County, Arthur
Jean, Jr., Judge. Affirmed.
         Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, and Jonathan J. Kline and
Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.




                                         ________________________
       Appellant Eva Daley appeals her judgment of conviction of second degree murder
(Pen. Code,1 § 187, subd. (a)). Daley raises the following arguments on appeal: (1) the
evidence was insufficient to support her conviction; (2) the trial court erred in instructing
the jury on the natural and probable consequences theory of murder as an aider and
abettor; and (3) the trial court erred in failing to instruct the jury on voluntary and
involuntary manslaughter as lesser included offenses of murder. We affirm.

            FACTUAL BACKGROUND AND PROCEDURAL HISTORY
I.     The Charges
       In a single-count information, the Los Angeles County District Attorney charged
Daley and Heriberto Garcia with the murder of Jose Cano (§ 187, subd. (a)). The
information alleged that the murder was committed for the benefit of, at the direction
of, or in association with a criminal street gang, and with the specific intent to promote,
further, or assist in criminal conduct by gang members (§ 186.22, subd. (b)(1)). Daley’s
case was tried to a jury for a third time in March 2013.2

II.    The Prosecution Evidence
       A.     The Stabbing Death of Cano
       Jose Cano was a member of a Long Beach area gang known as the “Latin Thugs”
or “LTs.” Before joining the LTs, Cano spent time with a rival gang known as the “Loco
Marijuana Smokers” or “LMS.” The two gangs were primarily comprised of teenagers.
Daley’s son, Mauricio Rivera, was a member of the LMS, and was friends with Cano
before Cano joined the rival LTs. In December 2006, six months prior to Cano’s death,


1      All further statutory references are to the Penal Code.
2      At the first trial, Daley and Garcia were both found guilty of second degree
murder. In a prior opinion, we affirmed the judgment as to Garcia, but reversed the
judgment as to Daley on the ground that the trial court erred in instructing the jury on the
natural and probable consequences doctrine with former CALCRIM No. 403. (People v.
Garcia (Aug. 2, 2010, B211909) [nonpub. opn.].) At Daley’s second trial, the jury was
deadlocked and a mistrial was declared.


                                               2
Rivera was stabbed. A witness told the police that she saw Rivera talking to Cano shortly
before the stabbing.
       On June 25, 2007, the day of Cano’s death, Daley was residing with Rivera and
her two other children in an apartment complex in Long Beach. Carlos Jimenez, a fellow
member of the LMS, also lived in the apartment complex. On that afternoon, Rivera and
Jimenez were involved in an altercation with some rival LT gang members in an alley
behind the complex. During the altercation, Daley and Jimenez’s mother ran into the
alley and remained there talking to their sons after the LTs left. Following that incident,
a group of LTs drove by the apartment complex and threw gang signs from their vehicle.
Later that evening, a group of at least seven LMS members gathered outside the
apartment complex and then got into Daley’s white Chevy Tahoe. The group included
Rivera, Jimenez, Garcia, Alejandro Flores, Jakkia Ross, Juan Bautista, and Edwin Moran.
As Daley was driving the teenagers in her vehicle, they saw a group of LT gang
members, including Cano, standing near 14th Street and Pine Avenue in LT territory.
The group in Daley’s Tahoe exited the vehicle and ran toward the rival LTs.
       Carlos Lopez was walking his dog near 14th Street and Pine Avenue when he saw
a white Chevy Tahoe stop near an alley. He testified that six to eight males exited the
passenger side of the vehicle and ran through the alley out of Lopez’ sight. After a few
minutes, a woman walked hurriedly to the Tahoe, opened the driver’s side door, and
shouted, “Come on, come on, let’s go, let’s go.” Less than a minute later, the passengers
ran back through the alley and reentered the vehicle. Lopez heard one of them say, “We
slashed him good.” The woman drove the Tahoe away quickly.
       Shortly before the assault, Tracie Mendez was standing with Cano and some other
friends near the intersection of 14th Street and Pine Avenue. She lived in the area and
knew both LMS and LT members. Mendez reluctantly testified that she saw a group of
10 to 15 males running toward her and her friends. The group, which included Garcia,
Rivera, and Jimenez, chased Cano as he ran toward a nearby park. One of them yelled
out “LMS.” The group then surrounded Cano and began beating him. After Cano fell to



                                             3
the ground, the group took off running in different directions. Mendez approached Cano
and saw that he was bleeding.
       Three of the LMS members involved in the assault – Jimenez, Ross, and Flores –
were called to testify at trial. The prosecution also introduced portions of the audio
recordings of their prior interviews with the police. Jimenez testified that, on June 25,
2007, he and Rivera had an argument with some LT members outside their apartment
complex, and the LTs threatened Jimenez’s mother. Later that evening, Jimenez, Rivera,
and four other LMS members gathered outside the complex and got into Daley’s SUV.
As Daley was driving them to a store, they saw a group of LTs standing near 14th Street
and Pine Avenue, and jumped out of the vehicle. Jimenez chased one of the LTs, but did
not catch him. After the group returned to her vehicle, Daley angrily asked them, “What
the fuck are you doing?” In his interview with the police, Jimenez stated that he and
some fellow LMS members went to fight the LTs because they had disrespected his
mother. Jimenez fought with one LT while the others in his group beat Cano. When they
returned to the car, Garcia told the group that he had stabbed someone.
       Ross testified that, prior to the assault, Daley drove her SUV to his house to pick
him up. Rivera, Garcia, Jimenez, and two other LMS members were already in the
vehicle. Daley later stopped the SUV near 14th Street and Pine Avenue and Ross jumped
out. Ross got into a fight with one LT while other members of his group beat up Cano.
They then returned to Daley’s vehicle. In his police interview, Ross stated that Rivera
had told him that the LTs had come to Rivera’s house and disrespected his mother by
“talking smack” and possibly slapping her. Ross and the other LMS gang members
decided that they were going to “rumble” with the LTs and left in Daley’s SUV. As
Daley was driving the group, some of them repeatedly said, “[T]hey disrespected my
house, they disrespected my mom.” Daley parked the SUV on Pine Avenue and the
group got out. Jimenez and either Rivera or Garcia were carrying mini wooden bats.
Ross yelled out “LMS” as they chased after some LT gang members. Garcia, Rivera, and
three others caught Cano and brutally beat him. The group then ran back to Daley’s
SUV. Once inside the vehicle, Garcia said, “[D]amn, I stabbed him, I stabbed him.”

                                             4
There was a lot of blood on Garcia’s shirt and pants. Ross admitted to the police that
when he went to rumble with the LTs, he knew there was a good chance that someone
was going to get hurt.
       Alejandro Flores testified that, prior to the assault, he was told by a fellow LMS
member that the LTs had come by Rivera’s and Jimenez’s houses and had disrespected
them. Flores and six other LMS members, including Rivera, Jimenez, and Garcia, got
into Daley’s SUV so that she could take them to the store. Flores was carrying a two-foot
long wooden stick. According to Flores, Daley was driving the group, but “she didn’t
really know what was going on” and “didn’t know what was going to happen.” While
riding in the SUV, the group saw Cano and some other LTs, and ran out of the vehicle to
chase them. After the group returned to the vehicle, Daley asked them what had
happened and they told her not to worry about it. In his police interview, Flores told the
officers that the fight occurred because LT gang members had been to LMS territory
earlier that day. A group of LMS members gathered near Rivera’s home and Daley told
them, “[L]et’s go.” She then drove the group to LT territory, parked her vehicle, and told
everyone to get out before the police came. Daley stayed inside the vehicle while
everyone else went to fight the LTs. Flores told the police that he knew there was a good
chance that someone would get seriously hurt in the fight.
       Cano died from multiple stab wounds. He sustained a total of nine stab wounds to
various parts of his body, including one fatal stab wound to his chest that punctured his
heart. There was no evidence that he suffered any other trauma. During a subsequent
search of Daley’s Chevy Tahoe, multiple blood stains were found inside the vehicle.
Garcia’s DNA was matched to the blood stains found on a passenger seat belt and seat
cushion, and Cano’s DNA was matched to the blood stain found on the front passenger
headrest.
       While in custody, Daley made several recorded telephone calls from the Long
Beach City Jail to Rivera’s girlfriend, Guadalupe Lopez. In a June 28, 2007 call, Daley
asked Lopez to talk to the other boys or their mothers and tell them “the truth as I am
telling you.” Daley then said that she “had nothing to do with anything there,” that “they

                                             5
were not there,” and that “they don’t know anything in regards to what happened.” Daley
also advised Lopez to say that Rivera was at a neighbor’s house. In a second call that
day, Daley asked Lopez to tell her what Rivera had said to the police so that she could
make sure their stories matched. When told that Daley’s other son had said “the
opposite” about where Rivera was, Daley responded that he had no credibility because he
was a child. Daley said that she told Rivera that he should not say anything other than
that he was at the house. She also said that her problem was that her truck had been
recognized at the crime scene. In a third call that day, Daley asked Lopez if the police
were talking to the neighbors. Lopez told Daley that the neighbors had said they did not
know anything. Daley responded, “[V]ery good. As long as they stick to that, okay.”
Daley said that she was going to tell the police that the others had arrived at her house so
that she could give them a ride and she did not know what happened afterward. In a June
30, 2007 call, Daley told Lopez that Rivera needed to be careful about what he said and
that he could not say that Daley “instigated them.” Daley said that Rivera should tell the
police that he went to get dropped off, that someone said to “divert that way” when Daley
least expected it, and that they exited the car while it was still running. Daley also said
that she had told the police that she did not want them to think that Rivera had stabbed
Cano in revenge because Cano previously had stabbed Rivera.

       B.     The Gang Expert Testimony
       Officer Chris Zamora testified as an expert on criminal street gangs. He described
the LMS as a small Hispanic gang in the Long Beach area, whose main rival was the
LTs. As younger gangs, both the LMS and the LTs aligned themselves with older and
larger criminal street gangs. The two gangs were in an ongoing battle for the same
geographic territory in Long Beach. Officer Zamora identified Rivera, Garcia, Jimenez,
Ross, Flores, and Moran as active members of the LMS. He identified Cano as a member
of the LTs. Officer Zamora opined that, based on the facts of the case, the stabbing of
Cano would have been committed for the benefit of the LMS gang. He further opined




                                              6
that Daley’s participation in the crime also would have benefited the gang because she
played an important role as the getaway driver.

III.   The Defense Evidence
       Daley testified on her own behalf. In 2007, she was the single mother of three
minor children, including Rivera, who was then 14 years old. Daley worked two part-
time jobs, which allowed her to be home in the morning to drive her children to school.
She often gave Rivera’s friends, including Garcia, Jimenez, and Flores, a ride to school.
Daley had seen graffiti in her neighborhood, but had not heard of the LMS and did not
know that her son was a gang member. Approximately six months before Cano’s
stabbing, Rivera began having behavior problems at both home and school, and was
arrested for possession of a knife. Daley tried to help Rivera by seeking counseling
for him and arranging his transfer to a new school.
       On June 25, 2007, at around 6:00 p.m., Daley heard yelling in the alley near her
apartment. Daley and Rivera went outside and saw a group of people walking away. The
group was cursing at Daley’s neighbors and throwing road flares in their direction, but
they did not say or do anything to Daley. Garcia and Jimenez were present in the alley
and exchanged profanities with the members of the group. A short time later, at Rivera’s
request, Daley agreed to pick up a few of his friends, including Bautista, Moran, and
Ross, and bring them back to the apartment complex. When she returned home with
these friends, she saw Garcia, Jimenez, and Flores standing outside. At approximately
8:00 p.m., a police helicopter flew overhead and Rivera and his friends ran into the
apartment. Rivera asked Daley to drive his friends home and she agreed.
       Daley was driving the group in her Chevy Tahoe when someone in the back of the
vehicle suddenly told her to stop. As Daley started to decelerate, the group of youths,
including Rivera, jumped out of the Tahoe and ran down the street. Daley did not know
what was happening and was worried about her son. She stopped the Tahoe and briefly
walked around looking for Rivera. She then got back into the vehicle and started the
engine. At that point, Rivera returned. Daley was reprimanding Rivera for jumping out


                                            7
of the car when the other members of his group came back. Daley yelled at the group
and asked them what they were thinking. She then drove them to Garcia’s house. Daley
never saw any weapons or blood inside her vehicle, and she never heard anyone say that
a person had been stabbed. She learned of the stabbing the following day from other
parents in the neighborhood. In her telephone calls from jail, Daley was concerned about
Rivera because she did not want him to be blamed for something that he did not do.
       Daley presented four character witnesses who testified that she was an honest
person with no history of violence or gang involvement. The witnesses also testified
that Daley was a good mother who treated her children well.

IV.    Verdict and Sentencing
       Daley was found guilty of second degree murder. The jury found the gang
enhancement allegation to be not true. Following the verdict, the trial court sentenced
Daley to 15 years to life in state prison.

                                       DISCUSSION
I.     Sufficiency of the Evidence on the Second Degree Murder Conviction
       Daley first challenges the sufficiency of the evidence supporting her conviction for
second degree murder. She specifically contends that the prosecution failed to meet its
burden of proving that Daley had the requisite knowledge of Garcia’s criminal purpose,
and that murder was a natural and probable consequence of the assault that occurred in
this case. We conclude that Daley’s conviction was supported by substantial evidence.

       A.     Applicable Law

       To assess a claim of insufficient evidence in a criminal case, “we review the whole
record to determine whether any rational trier of fact could have found the essential
elements of the crime or special circumstances 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

                                              8
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 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. [Citation.]” (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
       Murder is the unlawful killing of a human being “with malice aforethought.”
(§ 187, subd. (a).) “Malice may be either express or implied. [Citation.] Express malice
is an intent to kill. . . . Malice is implied when a person willfully does an act, the natural
and probable consequences of which are dangerous to human life, and the person
knowingly acts with conscious disregard for the danger to life that the act poses.
[Citation.]” (People v. Gonzalez (2012) 54 Cal.4th 643, 653.) “A killing with express
malice formed willfully, deliberately, and with premeditation constitutes first degree
murder. [Citation.] ‘Second degree murder is the unlawful killing of a human being
with malice aforethought but without the additional elements, such as willfulness,
premeditation, and deliberation, that would support a conviction of first degree murder.’
[Citation.]” (People v. Beltran (2013) 56 Cal.4th 935, 942.)
       “[A]n aider and abettor’s liability for criminal conduct is of two kinds. First, an
aider and abettor with the necessary mental state is guilty of the intended crime. Second,
under the natural and probable consequences doctrine, an aider and abettor is guilty not
only of the intended crime, but also ‘for any other offense that was a “natural and
probable consequence” of the crime aided and abetted.’ [Citation.] Thus, for example, if
a person aids and abets only an intended assault, but a murder results, that person may be
guilty of that murder, even if unintended, if it is a natural and probable consequence of
the intended assault. [Citation.]” (People v. McCoy (2001) 25 Cal.4th 1111, 1117.)

                                               9
       To convict a defendant under the natural and probable consequences doctrine, the
jury “must find that the defendant, acting with (1) knowledge of the unlawful purpose of
the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating
the commission of a predicate or target offense; (3) by act or advice aided, promoted,
encouraged or instigated the commission of the target crime[;] . . . (4) the defendant’s
confederate committed an offense other than the target crime; and (5) the offense
committed by the confederate was a natural and probable consequence of the target
crime that the defendant aided and abetted.” (People v. Prettyman (1996) 14 Cal.4th
248, 262, fn. omitted.) “Liability under the natural and probable consequences doctrine
‘is measured by whether a reasonable person in the defendant’s position would have or
should have known that the charged offense was a reasonable foreseeable consequence
of the act aided and abetted.’ [Citation.]” (People v. Medina (2009) 46 Cal.4th 913, 920
(Medina).) “A reasonably foreseeable consequence is to be evaluated under all the
factual circumstances of the individual case [citation] and is a factual issue to be
resolved by the jury. [Citations.]” (Ibid.)
       Murder can be a natural and probable consequence of a simple assault under
certain circumstances, including a gang attack. (Medina, supra, 46 Cal.4th at p. 916.) In
Medina, the defendants and the victim were members of rival gangs. A verbal challenge
by the defendants led to a fistfight. After the fistfight, one defendant shot and killed the
victim as the victim was driving away. The California Supreme Court concluded that the
evidence was sufficient to support the murder convictions of the other defendants because
“a rational trier of fact could have concluded that the shooting death of the victim was a
reasonably foreseeable consequence of the assault.” (Ibid.) The Court reasoned that “the
ultimate factual question is one of reasonable foreseeability, to be evaluated under all the
factual circumstances of the case.” (Id. at p. 927.) Under the facts of the case, “the jury
could reasonably have found that a person in defendants’ position (i.e., a gang member)
would have or should have known that retaliation was likely to occur and that escalation
of the confrontation to a deadly level was reasonably foreseeable as [the victim] was
retreating from the scene.” (Id. at pp. 922-923.)

                                              10
       The Supreme Court also noted that “in the gang context, it was not necessary for
there to have been a prior discussion of or agreement to a shooting, or for a gang member
to have known a fellow gang member was in fact armed.” (Medina, supra, 46 Cal.4th at
p. 924.) Instead, “[t]he issue is ‘whether, under all of the circumstances presented, a
reasonable person in the defendant’s position would have or should have known that the
[shooting] was a reasonably foreseeable consequence of the act aided and abetted by the
defendant.’” (Id. at p. 927; see also People v. Gonzales (2001) 87 Cal.App.4th 1, 10
[fatal shooting during fistfight between rival gangs was natural and probable consequence
of fight]; People v. Montes (1999) 74 Cal.App.4th 1050, 1055-1056 [shooting of rival
gang member during retreat from fight was natural and probable consequence of assault
despite defendant’s lack of knowledge that associate was armed]; People v. Olguin
(1994) 31 Cal.App.4th 1355, 1375-1376 [defendant’s punching of victim during gang-
related fight foreseeably resulted in fatal shooting of victim by fellow gang member].)

       B.     Substantial Evidence Supported Daley’s Conviction
       When viewed in the light most favorable to the verdict, the evidence was sufficient
to support Daley’s conviction. The prosecution presented evidence that Daley’s son,
Rivera, and his friends were active members of the LMS gang and that Cano was a
member of the rival LT gang. Six months before the deadly assault on Cano, Rivera was
stabbed. On the day of Cano’s stabbing, a group of LT gang members came “looking for
trouble” at the apartment complex where Daley, Rivera, and another LMS member,
Jimenez, lived. An argument broke out in the alley between the LTs and Rivera and
Jimenez. Daley and other residents were present in the alley as the LTs yelled profanities
at them and threw road flares in their direction. After the incident, Daley and Jimenez’s
mother remained in the alley for a period of time talking to their sons. Later that evening,
the LTs drove by the apartment complex again, yelling and throwing gang signs from
their vehicle. Rivera and Jimenez were angry about the incident and felt the LTs had
disrespected them and their mothers.




                                             11
      The evidence further showed that, following the incident, a group of at least
seven LMS members, including Rivera, Jimenez, and Garcia, gathered at the apartment
complex. Daley herself admitted, that at her son’s request, she went to pick up some
of these individuals and brought them back to her home. After gathering outside the
apartment complex, the group decided that they were going to “rumble” with the LTs and
Daley told them, “Let’s go.” The group got into Daley’s SUV and she drove them into
LT territory. As Daley was driving, Rivera and Jimenez repeatedly told the others, “They
disrespected my house, they disrespected my mom.” Once they arrived in LT territory,
Daley parked the SUV near an alley and instructed everyone to exit the vehicle before the
police came. The group then ran down the alley toward the rival LTs while Daley waited
near her vehicle. Two members of the group were carrying small bats, and at least one
member, Garcia, was armed with a knife.
      The prosecution also presented evidence that, after approaching the group of LT
gang members, one LMS member yelled out “LMS.” When Cano and his fellow LTs
tried to flee, Garcia and the members of his group gave chase. The group surrounded
Cano and began beating him, and during the attack, Garcia stabbed Cano multiple times
with the knife. As the group ran back to Daley’s SUV, Daley yelled out to them, “Come
one, come on, let’s go, let’s go.” One member of the group said, “We slashed him good.”
Once the group was back in her vehicle, Daley drove away quickly.
      Daley argues the evidence was insufficient to support a finding that she aided
and abetted the assault on Cano because the prosecution failed to prove that she had the
requisite knowledge of Garcia’s unlawful purpose. There was substantial evidence,
however, that Daley knew that Garcia and his fellow LMS members were angry at the
LTs for disrespecting them and Daley, and that they decided to “rumble” with the LTs
that night. With this knowledge, Daley drove Garcia and at least six other LMS members
into LT territory, parked her SUV and ordered everyone to exit before the police came,
waited by her vehicle as the group ran toward Cano and his fellow LTs, told the group to
hurry when they returned from assaulting Cano, and then drove the group away from the
scene of the crime. From this evidence, the jury reasonably could have found that Daley

                                           12
had knowledge of Garcia’s criminal purpose in assaulting a rival LT and that Daley
intended to aid and abet the commission of the assault by driving the group into LT
territory and then acting as their getaway driver immediately after the attack.
       Daley also asserts the evidence was insufficient to support a finding that murder
was a natural and probable consequence of the assault on Cano under the circumstances
of the case. Daley reasons that, even though she may have exercised poor judgment in
driving a group of teenage boys to a fistfight, it was not reasonably foreseeable that the
fight would end in a homicide. We disagree. Although Daley denied any knowledge of
the LMS or her son’s gang involvement at trial, it ultimately was up to the jury to weigh
her credibility as a witness and to decide whether to accept her claim of ignorance as true.
The jury reasonably could have inferred that Daley knew the intended fight was between
two rival gangs. She was present in the alley earlier that day when a group of LT gang
members disrespected her son and his fellow LMS members, and threw flares at Daley
and her neighbors. She was also present in her vehicle while driving at least seven LMS
members into LT territory as the group discussed their plan to “rumble” with the LTs.
While there was no evidence that Daley knew Garcia was armed with a knife, there was
evidence that two members of the group were carrying small bats and another one was
carrying a two-foot long stick. As the Supreme Court observed in Medina, “escalating
violence is a foreseeable consequence to be expected in gang confrontations,” and “prior
knowledge that a fellow gang member is armed is not necessary to support a defendant’s
murder conviction as an aider and abettor.” (Medina, supra, 46 Cal.4th at pp. 926, 921;
see also People v. Montes, supra, 74 Cal.App.4th at p. 1056 [“[g]iven the great potential
for escalating violence during gang confrontations, it is immaterial whether [defendant]
specifically knew [fellow gang member] had a gun”].) Based on the totality of the
record, there was substantial evidence that a reasonable person in Daley’s position either
would have or should have known that the fatal stabbing of Cano was a foreseeable
consequence of the planned assault by a group of rival gang members. The evidence
was therefore sufficient to support Daley’s conviction for second degree murder.



                                             13
II.    Jury Instruction on the Natural and Probable Consequences Doctrine
       Daley next contends that the trial court erred in instructing the jury on the natural
and probable consequences doctrine with a modified version of CALJIC No. 3.02. In
particular, Daley claims that the instruction erroneously omitted the requirement of a
nexus between the target offense that she intended to aid and abet and the non-target
offense committed by a co-principal. We conclude that the trial court did not err in
instructing the jury with CALJIC No. 3.02, and that even if the modified instruction
was not entirely clear, there is no reasonable likelihood that the jury misunderstood
or misapplied the instruction in reaching its verdict.3

       A.     Relevant Instructions
       The trial court instructed the jury on the general principles of aiding and abetting
liability with CALJIC Nos. 3.00 and 3.01. The trial court also instructed the jury on the
natural and probable consequences doctrine with the following modified version of
CALJIC No. 3.02: “One who aids and abets another in the commission of a crime is not
only guilty of that crime, but is also guilty of any other crime committed by a principal
which is a natural and probable consequence of the crime[s] originally aided and abetted.
[¶] In order to find the defendant guilty of the crime of murder under this theory, you
must be satisfied beyond a reasonable doubt that: [¶] 1. The crime of assault or assault


3       The Attorney General contends that Daley forfeited her claim of error on appeal
by failing to request a modification of the challenged instruction in the trial court. We
have repeatedly rejected this forfeiture argument, which appears to have been made more
reflexively than reflectively. An appellate court may review any claim of instructional
error that affects a defendant’s substantial rights irrespective of whether there was an
objection in the trial court. (§ 1259 [“appellate court may also review any instruction
given . . . even though no objection was made thereto in the lower court, if the substantial
rights of the defendant were affected thereby”]; People v. Hudson (2006) 38 Cal.4th
1002, 1012; People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7.) Whether the
defendant’s substantial rights were affected, however, can only be determined by
deciding if the instruction as given was flawed and, if so, whether the error was
prejudicial. Therefore, we necessarily must review the merits of Daley’s claim
that there was instructional error.


                                             14
with a deadly weapon was committed; [¶] 2. That the defendant aided and abetted that
crime; [¶] 3. That a co-principal in that crime committed the crime of murder; and [¶] 4.
The crime of murder was a natural and probable consequences of the commission of
the crime of assault or assault with a deadly weapon. [¶] In determining whether a
consequence is ‘natural and probable,’ you must apply an objective test, based not on
what the defendant actually intended, but on what a person of reasonable and ordinary
prudence would have expected likely to occur. The issue is to be decided in light of all
of the circumstances surrounding the incident. A ‘natural’ consequence is one which is
within the normal range of outcomes that may be reasonably expected to occur if nothing
unusual has intervened. ‘Probable’ means likely to happen. [¶] You are not required to
unanimously agree as to which originally contemplated crime the defendant aided and
abetted, so long as you are satisfied beyond a reasonable doubt and unanimously agree
that the defendant aided and abetted the commission of an identified and defined target
crime and that the crime of murder was a natural and probable consequence of the
commission of that target crime.”

       B.     Applicable Law
       In a criminal case, the trial court must instruct the jury on the general principles
of law that are relevant to the issues raised by the evidence and are necessary for the
jury’s understanding of the case. (People v. Burney (2009) 47 Cal.4th 203, 246.) An
instructional error that improperly describes or omits an element of an offense is subject
to the harmless error analysis set forth in Chapman v. California (1967) 386 U.S. 18,
24, and requires reversal unless “‘it appears “beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained.”’” (People v. Mayfield (1997)
14 Cal.4th 668, 774; see also People v. Lamas (2007) 42 Cal.4th 516, 526.) However,
“‘not every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level
of a due process violation. . . . “‘[A] single instruction to a jury may not be judged in
artificial isolation, but must be viewed in the context of the overall charge.’” [Citation.]
If the charge as a whole is ambiguous, the question is whether there is a “‘reasonable


                                             15
likelihood that the jury has applied the challenged instruction in a way’ that violates the
Constitution.”’ [Citation.]” (People v. Huggins (2006) 38 Cal.4th 175, 192; see also
People v. Wallace (2008) 44 Cal.4th 1032, 1075 [“‘[f]or ambiguous instructions, the test
is whether there is a reasonable likelihood that the jury misunderstood and misapplied
the instruction’”]; People v. Rogers (2006) 39 Cal.4th 826, 873 [in reviewing ambiguous
instructions, “we inquire whether the jury was ‘reasonably likely’ to have construed them
in a manner that violates the defendant’s rights”].) The arguments of counsel must also
be considered in “assessing the probable impact of the instruction on the jury.” (People
v. Young (2005) 34 Cal.4th 1149, 1202.)
       As discussed, under the natural and probable consequences doctrine, “a person
who aids and abets a confederate in the commission of a criminal act is liable not only for
that crime (the target crime), but also for any other offense (nontarget crime) committed
by the confederate as a ‘natural and probable consequence’ of the crime originally aided
and abetted.” (People v. Prettyman, supra, 14 Cal.4th at p. 254.) Accordingly, to convict
a defendant of a nontarget crime as an aider and abettor, the jury must find that the
defendant assisted or encouraged the commission of a target crime, a confederate
committed an offense other than the target crime, and the nontarget offense committed
by the confederate was a natural and probable consequence of the target crime that the
defendant assisted or encouraged. (Ibid.) “[T]he jury need not unanimously agree on the
specific target crime that the defendant aided and abetted. . . . Nevertheless, at trial each
juror must be convinced, beyond a reasonable doubt, that the defendant aided and abetted
the commission of a criminal act, and that the offense actually committed was a natural
and probable consequence of that act.” (Id. at pp. 267-268.) The instructions to the jury
must accurately “describe[e] each step in this process [to] ensure proper application by
the jury of the ‘natural and probable consequences’ doctrine.” (Id. at p. 267.)

       C.     CALJIC No. 3.02, As Modified, Was Not Impermissibly Ambiguous
       Daley argues that the modified version of CALJIC 3.02 given by the trial court
was an erroneous statement of the law because it allowed the jury to find her guilty of


                                              16
murder under an aiding and abetting theory of liability without finding that murder was
a natural and probable consequence of the crime that she actually aided and abetted.
Daley’s argument focuses on the fourth element in the instruction which required a
finding that “the crime of murder was a natural and probable consequence of the
commission of the crime of assault or assault with a deadly weapon.” Daley reasons that,
while the first and second elements of the instruction required the jury to find that Daley
aided and abetted a specific target crime (simple assault or assault with a deadly weapon),
the fourth element erroneously failed to require a finding that murder was a natural and
probable consequence of the specific target crime that Daley aided and abetted. Instead,
the jury theoretically could have found that (1) Daley aided and abetted a simple assault,
but not an assault with a deadly weapon, (2) a co-principal committed the crime of
murder, and (3) murder was a natural and probable consequence of assault with a deadly
weapon, but not of simple assault.
       Daley is correct that, when read literally, the fourth element of CALJIC 3.02 as
given by the trial court, if read alone, permitted the jury to convict her of murder even if
it found that she aided and abetted only a simple assault and that murder was not a natural
and probable consequence of that simple assault under the circumstances of the case.
However, it is not reasonably likely that the jury misapplied the instruction in this
manner. While the fourth element should have more precisely linked the two identified
target crimes of assault and assault with a deadly weapon to the specific target crime that
Daley aided and abetted, the remainder of the instruction accurately reflected the law on
the natural and probable consequences doctrine. The instruction properly informed the
jury that “[o]ne who aids and abets another in the commission of a crime is not only
guilty of that crime, but is also guilty of any other crime committed by a principal which
is a natural and probable consequence of the crime[s] originally aided and abetted.” It
also accurately stated that to find Daley guilty of the crime of murder under this theory,
the jury had to be satisfied beyond a reasonable doubt that “[t]he crime of assault or
assault with a deadly weapon was committed,” that Daley “aided and abetted that crime,”
and that a “co-principal in that crime committed the crime of murder.” In addition, the

                                             17
final paragraph of the instruction clarified that the jury must “unanimously agree that the
defendant aided and abetted the commission of an identified and defined target crime and
that the crime of murder was a natural and probable consequence of the commission of
that target crime.” Thus, when considered as a whole, the instruction adequately
informed that jury that Daley could be convicted of Cano’s murder under this theory only
if murder was a natural and probable consequence of the target crime that Daley actually
aided and abetted.
       Moreover, contrary to Daley’s claim on appeal, the closing arguments of counsel
did not exacerbate the alleged error. The prosecutor never argued to the jury that Daley
could be convicted of murder if she committed one target offense (simple assault) and
murder was a natural and probable consequence of a different target offense (assault with
a deadly weapon). Instead, the prosecutor correctly told the jury that “one who aids and
abets another in the commission of one crime is not only guilty for that crime, but is also
guilty of any other crime committed by a principal . . . which is a natural and probable
consequence of the crime originally aided and abetted.” The prosecutor then argued that,
“in this case, the crime of murder was a natural and probable consequence of the assault.”
In his closing argument, defense counsel explained the natural and probable
consequences doctrine as follows: “So the other complication of this case is that [a]
person and I decide that we are going to go have a fist fight. We go to a certain place,
and we have a fist fight. And what you have to decide is whether the probable
consequence of that is going to be that murder is going to . . . be committed. Again, how
many fights happen every day, everywhere? They don’t all result in death. So it is
possible, not probable. Not likely to occur.” The closing arguments of both counsel
made clear that if the jury found that a simple assault was the only crime that Daley aided
and abetted, then she could not be found guilty of murder unless the jury also found that
murder was a natural and probable consequence of that simple assault. Under these
circumstances, the trial court did not err in giving the challenged instruction.




                                             18
III.   Failure to Instruct on Voluntary Manslaughter
       Daley asserts that the trial court erred in failing to instruct the jury sua sponte on
voluntary manslaughter as a lesser included offense of murder. Daley specifically argues
that an instruction on voluntary manslaughter was warranted because there was evidence
that her role in the murder was the result of Cano stabbing her son six months earlier.
We conclude that the evidence was insufficient to support a voluntary manslaughter
instruction based on a heat of passion theory.

       A.     Applicable Law
       “[I]t is the [trial] ‘court’s duty to instruct the jury not only on the crime with
which the defendant is charged, but also on any lesser offense that is both included in
the offense charged and shown by the evidence to have been committed.’ [Citation.]”
(People v. Gutierrez (2009) 45 Cal.4th 789, 826.) “Conversely, even on request, the
court ‘has no duty to instruct on any lesser offense unless there is substantial evidence to
support such instruction’ [Citation.]” (People v. Cole (2004) 33 Cal.4th 1158, 1215.)
Substantial evidence “is not merely ‘any evidence … no matter how weak’ [citation],
but rather ‘“evidence from which a jury composed of reasonable [persons] could …
conclude[]”’ that the lesser offense, but not the greater, was committed. [Citations.]”
(People v. Cruz (2008) 44 Cal.4th 636, 664; see also People v. Burney, supra, 47 Cal.4th
at p. 250 [“‘[t]o justify a lesser included offense instruction, the evidence supporting the
instruction must be substantial — that is, it must be evidence from which a jury . . . could
conclude that the facts underlying the particular instruction exist’”].) “On appeal, we
review independently whether the trial court erred in failing to instruct on a lesser
included offense. [Citation.]” (People v. Booker (2011) 51 Cal.4th 141, 181.)
       Voluntary manslaughter is “the unlawful killing of a human being without malice
. . . upon a sudden quarrel or heat of passion.” (§ 192, subd. (a).) “Heat of passion arises
if, ‘“at the time of the killing, the reason of the accused was obscured or disturbed by
passion to such an extent as would cause the ordinarily reasonable person of average
disposition to act rashly and without deliberation and reflection, and from such passion


                                              19
rather than from judgment.”’ [Citation.]” (People v. Beltran, supra, 56 Cal.4th at
p. 942.) “‘The heat of passion requirement for manslaughter has both an objective and a
subjective component. [Citation.] The defendant must actually, subjectively, kill under
the heat of passion,’” and the “‘heat of passion must be due to “sufficient provocation.”’”
(People v. Gutierrez (2002) 28 Cal.4th 1083, 1143-1144.) “The provocation which
incites the defendant to homicidal conduct in the heat of passion must be caused by the
victim [citation], or be conduct reasonably believed by the defendant to have been
engaged in by the victim. [Citations.] The provocative conduct by the victim may be
physical or verbal, but the conduct must be sufficiently provocative that it would cause
an ordinary person of average disposition to act rashly or without due deliberation and
reflection. [Citations.]” (People v. Lee (1999) 20 Cal.4th 47, 59.) “[P]rovocation
sufficient to reduce murder to manslaughter need not occur instantaneously, but may
occur over a period of time.” (People v. Wharton (1991) 53 Cal.3d 522, 569.) However,
“‘[i]f sufficient time has elapsed between the provocation and the fatal blow for passion
to subside and reason to return, the killing is not voluntary manslaughter. . . .’” (People
v. Beltran, supra, at p. 951; see also People v. Moye (2009) 47 Cal.4th 537, 550.)

       B.     The Evidence Did Not Support a Voluntary Manslaughter Instruction
       Daley contends that there was sufficient provocation to support a voluntary
manslaughter instruction because the prosecution introduced evidence that Daley’s son
may have been stabbed by Cano six months earlier. However, as the Attorney General
correctly points out, none of the participants in the deadly assault on Cano who testified
at trial mentioned the prior stabbing as a motive for the assault. In their interviews with
the police, Jimenez, Ross, and Flores each stated that the reason for the assault was that
LT gang members had been in LMS territory earlier that day and had disrespected some
of the LMS members and their mothers, including Daley. In her testimony, Daley denied
any knowledge of who may have stabbed Rivera, and stated that she did not learn that
Cano was a suspect in the stabbing until after her arrest. Yet even assuming that Daley
had a reasonable basis for believing Cano was involved in the prior incident, six months


                                             20
had elapsed between the stabbing of Rivera and the killing of Cano, which was more than
enough time for Daley’s “passion to subside and reason to return.” (People v. Beltran,
supra, 56 Cal.4th at p. 951; see People v. Moye, supra, 47 Cal.4th at p. 551 [evidence of
fight involving defendant and victim the evening before victim’s deadly beating “did
not itself constitute legally sufficient provocation to require instruction on . . . voluntary
manslaughter”]; People v. Pride (1992) 3 Cal.4th 195, 250 [three-day gap between act
of provocation and fatal stabbing of victim was “insufficient as a matter of law to arouse
feelings of homicidal rage or passion in an ordinarily reasonable person”].) To warrant a
voluntary manslaughter instruction, “the killing must be ‘upon a sudden quarrel or heat of
passion’ [citation]; that is, ‘suddenly as a response to the provocation, and not belatedly
as revenge or punishment.’” (People v. Daniels (1991) 52 Cal.3d 815, 868.)
       Daley nevertheless claims that the jury reasonably could have inferred that her
heat of passion was reignited the day of Cano’s assault when individuals associated with
Cano yelled profanities and threw flares at Daley and her son in the alley near their home.
This claim lacks merit. There was no evidence that Cano was one of the LTs who
engaged in the conduct in the alley earlier that day. Cano simply happened to be standing
on the street corner later that night when the LMS gang went into LT territory looking for
a fight. In addition, Daley testified that the individuals involved in the altercation in the
alley “were very far [away]” when they cursed at her and her fellow residents and threw
flares in their direction. It is settled law that “[a] voluntary manslaughter instruction is
not warranted where the act that allegedly provoked the killing was no more than taunting
words, a technical battery, or slight touching.” (People v. Gutierrez, supra, 45 Cal.4th at
pp. 826, 827 [defendant’s testimony that he told victim to “‘[g]et off me, you f…ing
bitch,’ and that she ‘cuss[ed] back at’ him . . . did not constitute sufficient provocation
for voluntary manslaughter”]; see also People v. Manriquez (2005) 37 Cal.4th 547, 586
[victim’s actions in “call[ing] defendant a ‘mother fucker’ and . . . repeatedly asserting
that if defendant had a weapon, he should take it out and use it . . . plainly were
insufficient to cause an average person to become so inflamed as to lose reason and
judgment”].) In this case, the conduct of Cano’s associates in taunting Daley and her

                                              21
son with flares and curse words was not sufficiently provocative to cause a reasonable
person of average disposition to respond by killing Cano later that night. The trial court
did not err in failing to give a voluntary manslaughter instruction.

IV.    Failure to Instruct on Involuntary Manslaughter
       Daley argues that the trial court also erred in failing to instruct the jury sua sponte
on the lesser included offense of involuntary manslaughter. Daley asserts that an
involuntary manslaughter instruction was required because the jury reasonably could
have found that the fatal stabbing of Cano was an unintentional killing which occurred
during the commission of a misdemeanor simple assault. We conclude that an
involuntary manslaughter instruction was not supported by the evidence.

       A.     Applicable Law
       As discussed, the trial court has a sua sponte duty to instruct on all theories of a
lesser included offense which are supported by substantial evidence. (People v. Burney,
supra, 47 Cal.4th at p. 250; People v. Gutierrez, supra, 45 Cal.4th at p. 826.) Involuntary
manslaughter is a lesser included offense of murder. (People v. Gutierrez, supra, 28
Cal.4th at p. 1145.) Involuntary manslaughter is the unintentional killing of a human
being without malice, “in the commission of an unlawful act, not amounting to felony;
or in the commission of a lawful act which might produce death, in an unlawful manner,
or without due caution and circumspection.” (§ 192; subd. (b).) In addition to these
statutory forms of involuntary manslaughter, “an unintentional homicide committed in
the course of a noninherently dangerous felony may properly support a conviction of
involuntary manslaughter, if that felony is committed without due caution and
circumspection.” (People v. Burroughs (1984) 35 Cal.3d 824, 835, disapproved on
other grounds in People v. Blakeley (2000) 23 Cal.4th 82, 89.)
       All three forms of involuntary manslaughter require proof of criminal negligence –
that is, “aggravated, culpable, gross, or reckless” conduct that creates a high risk of death
or great bodily injury and that evidences a disregard for human life or an indifference to
the consequences. (People v. Penny (1955) 44 Cal.2d 861, 879; see People v. Butler

                                              22
(2010) 187 Cal.App.4th 998, 1007-1008.) In a homicide, where “a defendant commits an
act endangering human life, without realizing the risk involved, the defendant has acted
with criminal negligence,” and is guilty of involuntary manslaughter. (People v. Evers
(1992) 10 Cal.App.4th 588, 596.) “By contrast where the defendant realizes and then
acts in total disregard of the danger, the defendant is guilty of murder based on implied
malice.” (Ibid.) Additionally, “regardless of the manner an act of involuntary
manslaughter is committed, the killing must be unintentional. [Citations.] If a killing is
intentional, no involuntary manslaughter instructions may be given.” (People v. Dixon
(1995) 32 Cal.App.4th 1547, 1556; see also People v. Hendricks (1988) 44 Cal.3d 635,
643 [“‘[i]nvoluntary manslaughter is . . . inherently an unintentional killing’”].)

       B.     The Evidence Did Not Support an Involuntary Manslaughter Instruction
       Daley reasons that the trial court was required to instruct the jury on involuntary
manslaughter because there was evidence that Cano’s stabbing death resulted from an
unintentional killing which occurred during the commission of a simple assault. Daley
points out that one of the prosecution’s theories of the case was that Daley was liable for
murder because she aided and abetted the misdemeanor crime of simple assault and
murder was a natural and probable consequence of that assault under the circumstances
of the case. However, for purposes of instructing on lesser included offenses, “the trial
court need not instruct on a particular necessarily included offense if the evidence is
such that the aider and abettor, if guilty at all, is guilty of something beyond that lesser
offense, i.e., if the evidence establishes that a greater offense was a reasonably
foreseeable consequence of the criminal act originally contemplated, and no evidence
suggests otherwise.” (People v. Woods (1992) 8 Cal.App.4th 1570, 1593.) In this case,
the evidence did not support an instruction on involuntary manslaughter.
       The evidence at trial established that at least seven members of the LMS gang got
into Daley’s SUV with the intent to track down and fight the rival LTs in retaliation for
an earlier altercation. Two members of the group were carrying small baseball bats, one
member had a two-foot long wooden stick, and Garcia was armed with a knife. The


                                              23
evidence further demonstrated that, during the assault, Cano was surrounded and beaten
by a group of at least five LMS gang members and was stabbed multiple times. Cano
suffered a total of nine stab wounds to various parts of his body, including one fatal stab
wound to his heart. Immediately after the assault, as the group was getting back into
Daley’s car, one member of the group said, “[w]e slashed him good,” and Garcia told the
others, “I stabbed him, I stabbed him.” Given that various members of the group in
Daley’s vehicle were armed with weapons when they went looking for a fight with a rival
gang, the evidence could not reasonably support a finding that Cano was killed
unintentionally during the commission of a misdemeanor or an otherwise lawful act done
without due caution and circumspection.
       Daley contends that a properly instructed jury could have found her guilty of
involuntary manslaughter if it believed her testimony that she merely intended to drive
her son’s friends to their homes and had no knowledge of their criminal purpose.
However, if the jury believed Daley’s version of events, then Daley could not be found
guilty of any homicide because she did not intend to aid or abet even a simple assault.
On the other hand, based on the evidence presented at trial, if Daley aided or abetted any
crime, she aided and abetted a group of at least seven gang members in their intentional
use of violent force against a member of a rival gang. Under these circumstances, Daley
cannot be said to have acted without realizing the risk of death or serious bodily injury
involved in aiding and abetting the assault that occurred in this case. (People v. Evers,
supra, 10 Cal.App.4th at p. 598 [intentional use of violent force against the victim,
knowing the probable consequences of one’s actions, precludes an instruction on
involuntary manslaughter]; People v. Huynh (2002) 99 Cal.App.4th 662, 679
[defendant’s plainly deliberate acts with knowledge that his confederate’s acts
could result in death precluded a finding of criminal negligence and an involuntary
manslaughter instruction].) Because there was no substantial evidence to support a




                                             24
finding that the killing of Cano was involuntary manslaughter, the trial court did not
err in failing to give an involuntary manslaughter instruction.4

V.     Alleged Sentencing Error
       During sentencing, the trial court awarded Daley 2,920 days of presentence
custody credit. The abstract of judgment, however, awarded Daley only 2,120 days of
credit. While Daley argued that the abstract of judgment should be modified to match the
trial court’s oral pronouncement, she conceded that the abstract of judgment, rather than
the trial court’s oral pronouncement, correctly reflects the amount of presentence custody
credits to which she was entitled. Under these circumstances, the abstract of judgment
requires no modification.

                                     DISPOSITION
       The judgment is affirmed.



                                                  ZELON, J.

We concur:




       PERLUSS, P. J.



                   
       SEGAL, J.

4      In light of our conclusion that the evidence presented at trial did not support
voluntary or involuntary manslaughter instructions, we need not address Daley’s
alternative claim that her trial counsel rendered ineffective assistance by failing to
request those instructions. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.)
       Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.


                                             25
