Filed 7/5/12




       IN THE SUPREME COURT OF CALIFORNIA


THE PEOPLE,                          )
                                     )
           Plaintiff and Respondent, )
                                     )                            S189856
           v.                        )
                                     )                      Ct.App. 4/1 D055698
PERLA ISABEL GONZALEZ,               )
                                     )                    San Bernardino County
           Defendant and Appellant.  )                   Super. Ct. No. FVA024527
____________________________________)



        Defendant Perla Isabel Gonzalez (Perla) recruited her brother and her
boyfriend to assault Roberto Canas-Fuentes (Canas).1 After Canas fended off a
knife attack and gained the upper hand in the fight, Perla handed the boyfriend a
loaded rifle. Canas wrested the rifle away and shot the boyfriend dead. The jury
convicted Perla of the attempted premeditated and deliberate murder of Canas and,
based on the provocative act doctrine, the first degree murder of her boyfriend.2
        We recently held that similar circumstances could support a conviction of
first degree murder if the defendant personally acted willfully, deliberately, and


1     We refer to members of the Gonzalez family by their first names to avoid
confusion. Consistent with the parties‘ briefing and the Court of Appeal decision,
we have shortened Mr. Canas-Fuentes‘s name.
2       The provocative act doctrine does not define a crime. (People v. Cervantes
(2001) 26 Cal.4th 860, 867, fn. 10 (Cervantes).) Rather, ―provocative act murder‖
is a descriptive term referring to a subset of intervening-act homicides in which
the defendant‘s conduct provokes an intermediary‘s violent response that causes
someone‘s death. (Id. at p. 872, fn. 15.)


                                          1
with premeditation during an attempted murder. (People v. Concha (2009) 47
Cal.4th 653, 658 (Concha).) Here, substantial evidence supports Perla‘s
conviction for the murder of her boyfriend. As in Concha, the trial court erred in
instructing the jury on the requirements for premeditated and deliberate first
degree murder; however, we conclude the error was harmless beyond a reasonable
doubt.
                                  BACKGROUND
         Joan Curiel and her husband, Canas, had a three-year-old daughter together.
When they separated, Curiel moved into the residence of Ricardo Gonzalez
(Ricardo). Ricardo is defendant Perla‘s brother. Curiel‘s two other children and
her mother, Rosalba Osguera-Alvarez (Osguera), also moved into Ricardo‘s home.
The relationship between Canas and Ricardo was volatile. The two men had
argued several times on the telephone and had fought physically at least once.
Canas and Curiel shared custody of their daughter, but Canas typically picked up
the child away from Curiel‘s residence in order to avoid encountering Ricardo.
         Canas worked as an emergency room technician. On the evening of May
21, 2005, Curiel called Canas, arranging to bring her mother to the hospital for
treatment. After Osguera returned home, Curiel and Ricardo began arguing about
whether Curiel had lied to him about ―partying‖ with Canas while Ricardo was in
Mexico. During the argument, Canas called and spoke to Curiel. According to
Ricardo, Canas bragged that he and Curiel had been intimate while Ricardo was
away. Canas understood Curiel to say she did not want Ricardo in the home, and
Canas could hear children screaming in the background. Concerned for his
daughter, Canas drove to the residence and arrived just as Curiel was driving away
with the children. Canas yelled at Ricardo, but Ricardo ignored him and went
after Curiel in his own car. Canas followed. He drove between their two vehicles,
blocking Ricardo‘s progress, and yelled at him, ―What . . . are you thinking? The
kids are in the car. Knock it off.‖ Ricardo drove away in the opposite direction,



                                          2
and Canas followed to make sure Ricardo did not resume his pursuit of Curiel and
the children.
       Later that evening, after Ricardo and Curiel had both returned home,
several members of Ricardo‘s family gathered to discuss the altercation. In
addition to Ricardo and Curiel, the group included Ricardo‘s mother and
grandmother; his brother Jorge and Jorge‘s girlfriend; his sister Perla and Perla‘s
boyfriend, Fernando Morales. Perla, the defendant here, said that if anything
happened to Ricardo, the family would ―kick [Canas‘s] ass.‖ Meanwhile, Canas
continued to call the house and argue with Ricardo. Finally, Jorge answered the
telephone and agreed to fight Canas at a nearby street corner. Jorge waited at the
corner with his girlfriend, Perla, and Morales, the ultimate decedent. Morales had
brought a BB gun and shot it out the car window to pass the time. They waited for
15 or 20 minutes then left when Canas did not arrive.
       The next morning, Perla picked up Jorge at his house and told him they
were going back to the street corner to ―beat up‖ Canas. Curiel had told Perla that
Canas would be picking up his daughter at the corner, and Perla wanted to
intercept him there. Jorge brought a baseball bat, with which he planned to break
the windows of Canas‘s car. When Jorge got in Perla‘s car, he saw a light brown
rifle lying in the backseat area. Perla then drove back to her house to pick up her
boyfriend, Morales. Jorge told Morales about the plan to assault Canas, and
Morales agreed to help if Canas got the upper hand. After a brief stop at Ricardo‘s
house to confirm that Canas had not yet picked up his daughter, the group drove to
the intersection where they had waited for Canas the night before. They
eventually decided to leave, but Perla‘s car would not start. Jorge ran back to
Ricardo‘s house for help, leaving Perla and Morales waiting at the car. On the
way, Jorge passed Osguera walking Canas‘s daughter to the corner to meet her
father. Curiel‘s 13-year-old daughter walked behind them. When she joined them
at the corner, she saw Perla and Morales standing next to a car with the hood



                                          3
raised. Perla approached Osguera and told her to leave, but the grandmother
refused.
       After about 10 minutes, Canas arrived. He noticed Perla and Morales
standing next to a car with the hood up. He had never seen them before and did
not know them. As a result, he had no reason to expect any difficulty. When
Canas opened his car door and beckoned for his daughter, Osguera hastily
approached and told Canas to leave. Morales walked up to the car at the same
time and said, ―Hey, puto, I heard you had a problem.‖ When he realized Morales
was not joking, Canas told Osguera to put his daughter in his car and leave. As
she did so, Morales began punching Canas.
       Canas fought back. Morales then pulled a knife with a three- to four-inch
blade from his waistband and lunged at Canas, stabbing him in the face. Perla
stood about 10 feet away, near the rear of her car, watching the fight. When
Morales advanced on him again, Canas ducked and grabbed Morales‘s legs from
under him, hurling him onto his back. Morales quickly rose and ran toward
Perla‘s car. Canas saw Perla reach inside the car and grab a rifle. She met
Morales near the back of the car, ―cocked‖ the rifle by pulling back the hammer,
then handed it to Morales.3
       Seeing this, Canas ran at Morales, who had his back turned. During the
ensuing struggle, the rifle discharged several times. Canas was hit in the hand,
bicep, and thigh but managed to gain control of the rifle. Perla ran away.4
Morales also turned to run. Afraid for his life, Canas fired the rifle in Morales‘s


3       As Osguera was preparing to drive off with Canas‘s daughter, she saw
Perla pull from her car what looked like a long stick. She testified that she
realized it was a firearm when Perla began shooting at Canas. The jury apparently
rejected this testimony. No other witness, including Canas, testified that Perla
fired the weapon, and the jury found not true an allegation that Perla discharged a
firearm during the attack on Canas.
4     Although the trial testimony indicates Perla ran after handing the rifle to
Morales, it is unclear how far away she was when the lethal shots were fired.


                                          4
direction at least three times, until it ran out of ammunition. Morales fell to the
sidewalk. Canas went to Morales and, after ensuring he was unarmed, checked his
pulse. Canas still did not know his assailants or why they had attacked him.
       Curiel drove to the scene and found Canas sitting on the sidewalk near
Morales‘s body. When she asked what had happened, a shaken Canas yelled, ―He
shot me, so I shot him back.‖ Curiel began driving home but soon returned to the
scene with Jorge and Perla. Perla screamed at Canas to help her carry Morales
into the car. He refused because Morales had ―just tried to kill [him].‖ Perla and
Jorge pulled Morales into the car, and Curiel drove them to the hospital. Morales
died there from gunshot wounds to the chest and abdomen.
       Canas remained at the scene. When police arrived, they recovered the rifle
from him. Several expended shell casings and a knife were found in the street.
Perla‘s car was still at the location. Its rear license plate was obscured with an
―X‖ fashioned from red duct tape. A roll of similar tape and a baseball bat were
found inside the car. Although Morales‘s sister testified that she saw a knife at the
crime scene after the shooting, crime scene experts had found no second knife at
the scene, and Canas testified that he was unarmed.5
       Perla was charged with the attempted murder of Canas and the murder of
Morales. (Pen. Code, §§ 664, 187.)6 The information charged that she had
personally used and intentionally discharged a firearm in committing the
attempted murder. (§ 12022.53, subds. (b), (c).) The jury convicted her of the
first degree murder of Morales and the attempted premeditated and deliberate
murder of Canas, with personal use of a firearm. It rejected the allegation that she


5      Morales‘s sister, Marlen, testified that four or five days after Morales‘s
death, she went to the scene and discovered a 10-inch serrated knife with a long
black handle. She said she kicked it into the bushes. Although a detective
interviewed her eight days after the incident, Marlen did not mention finding this
knife.
6      All statutory references are to the Penal Code.


                                          5
had intentionally discharged a gun in connection with the attempted murder. Perla
was sentenced to prison for 25 years to life on the murder conviction, and a
concurrent life term and 10-year firearm enhancement for the attempted murder.
       The judgment was affirmed. The Court of Appeal unanimously concluded,
inter alia, that Perla‘s conviction of the first degree murder of Morales was
supported by substantial evidence. The panel also unanimously determined that
the jury had been erroneously instructed. The jury was not told that to convict
Perla of first degree murder under the provocative act doctrine it had to find that
she personally premeditated and deliberated the attempted murder of Canas. (See
Concha, supra, 47 Cal.4th at p. 666.) The court disagreed about the effect of the
error. The majority held the error harmless while the dissenting justice found it
prejudicial.
       We granted review limited to the issues of whether sufficient evidence
supports the conviction for first degree murder and whether the instructional error
was harmless beyond a reasonable doubt. The evidentiary sufficiency question
turns on the provocative act doctrine and its analytical place in the law of
homicide, which we discuss in some detail. We conclude the evidence here was
sufficient and, although the jury was given a potentially misleading instruction on
this topic, the error was harmless. We therefore affirm the judgment of the Court
of Appeal.
                                   DISCUSSION
I.     Substantial Evidence Supports the Murder Conviction
       In reviewing a sufficiency of evidence challenge, we view the evidence in
the light most favorable to the verdict and determine whether any rational trier of
fact could have found the essential elements of the crime proven beyond a
reasonable doubt. (Cervantes, supra, 26 Cal.4th at p. 866; People v. Caldwell
(1984) 36 Cal.3d 210, 217.)
       It will be helpful in resolving this matter to bear in mind several general
principles in the law of homicide. A conviction for murder requires the


                                          6
commission of an act that causes death, done with the mental state of malice
aforethought (malice). (§ 187.) Malice may be either express or implied. (§ 188.)
Express malice is an intent to kill. (People v. Nieto Benitez (1992) 4 Cal.4th 91,
102.) Implied malice does not require 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. (People v. Knoller (2007) 41 Cal.4th 139,
152.) A person who acts intending to kill victim A but who accidentally kills
victim B instead may be guilty of B‘s murder under the doctrine of transferred
intent. (People v. Bland (2002) 28 Cal.4th 313, 320-321.)
       The law recognizes two degrees of murder. The degrees are distinguished
by the mental state with which the killing is done. A person who kills unlawfully
with implied malice is guilty of second degree murder. (People v. Knoller, supra,
41 Cal.4th at pp. 151-152.) A person who kills unlawfully and intentionally is
guilty of first degree murder if the intent to kill is formed after premeditation and
deliberation. (§ 189; see People v. Mendoza (2011) 52 Cal.4th 1056, 1069.)7 If
the person kills unlawfully and intentionally but the intent to kill is not formed
after premeditation and deliberation, the murder is of the second degree. (People
v. Nieto Benitez, supra, 4 Cal.4th at p. 102.)
       While implied malice murder does not require an intent to kill, attempted
murder does require a specific intent to kill. (People v. Guerra (1985) 40 Cal.3d
377, 386.)8 The crime of attempted murder is not divided into degrees, but the


7      Section 189 also provides that murder is in the first degree if it is done by
particular means, such as through poison or lying in wait, or under particular
circumstances, such as in the course of a rape or robbery. (§ 189.) We do not
discuss these other types of first degree murder here.
8      An accomplice can be guilty of attempted murder if the accomplice aids
and encourages an attempted murder knowing of the direct perpetrator‘s intent to
kill and intending to facilitate the killing. (People v. Lee (2003) 31 Cal.4th 613,
624; People v. Prettyman (1996) 14 Cal.4th 248, 259.) In other words, ―the

                                          7
sentence can be enhanced if the attempt to kill was committed with premeditation
and deliberation. (People v. Smith (2005) 37 Cal.4th 733, 740.) In general,
attempted murder is punishable by imprisonment for a term of five, seven, or nine
years. (§ 664, subd. (a).) However, if either the defendant or an accomplice
formed the intent to kill with premeditation and deliberation, punishment for the
attempted murder is increased to life imprisonment with possibility of parole.
(§ 664, subd. (a); People v. Lee, supra, 31 Cal.4th at p. 624.)
       Under the felony murder doctrine, when the defendant or an accomplice
kills someone during the commission, or attempted commission, of an inherently
dangerous felony, the defendant is liable for either first or second degree murder,
depending on the felony committed. If the felony is listed in section 189, the
murder is of the first degree; if not, the murder is of the second degree. (§ 189;
People v. Gutierrez (2002) 28 Cal.4th 1083, 1140-1141.) Felony murder liability
does not require an intent to kill, or even implied malice, but merely an intent to
commit the underlying felony. (People v. Cavitt (2004) 33 Cal.4th 187, 197.) If
the killing is not committed by the defendant or an accomplice, however, the
felony murder doctrine does not apply. (People v. Washington (1965) 62 Cal.2d
777, 781-783.)
       When someone other than the defendant or an accomplice kills during the
commission or attempted commission of a crime, the defendant is not liable under
felony murder principles but may nevertheless be prosecuted for murder under the
provocative act doctrine. The provocative act doctrine is to be distinguished from
the felony murder rule. ―A provocative act murder case necessarily involves at
least three people—in our case, the perpetrator of the underlying offense, an
accomplice, and a victim of their crime. [Citation.]‖ (People v. Briscoe (2001) 92
Cal.App.4th 568, 581.) A variation on the law of transferred intent, the


person guilty of attempted murder as an aider and abettor must intend to kill.‖
(People v. Lee, at p. 624.)


                                          8
provocative act doctrine holds the perpetrator of a violent crime vicariously liable
for the killing of an accomplice by a third party, usually the intended victim or a
police officer. (Ibid.; see People v. Gilbert (1965) 63 Cal.2d 690, 705 (Gilbert).)
Under the felony murder rule, if an accomplice is killed by a crime victim and not
by the defendant, the defendant cannot be held liable for the accomplice‘s death.
(Gilbert, at p. 703; People v. Washington, supra, 62 Cal.2d at p. 781.) The
provocative act doctrine is not so limited. Under the provocative act doctrine,
when the perpetrator of a crime maliciously commits an act that is likely to result
in death, and the victim kills in reasonable response to that act, the perpetrator is
guilty of murder. (Gilbert, at pp. 704-705; People v. Briscoe, at p. 581.) ―In such
a case, the killing is attributable, not merely to the commission of a felony, but to
the intentional act of the defendant or his accomplice committed with conscious
disregard for life.‖ (Gilbert, at p. 704.)9
       A murder conviction under the provocative act doctrine thus requires proof
that the defendant personally harbored the mental state of malice, and either the
defendant or an accomplice intentionally committed a provocative act that
proximately caused an unlawful killing. (Concha, supra, 47 Cal.4th at pp. 660-
661; People v. Briscoe, supra, 92 Cal.App.4th at p. 582.) 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. (CALCRIM No. 560; see People v. Lima (2004) 118 Cal.App.4th 259,
265.) Although the doctrine has often been invoked in cases where the defendant
initiates or participates in a gun battle (Cervantes, supra, 26 Cal.4th at p. 867), it is
not limited to this factual scenario. (People v. Lima, at p. 266; see Concha, at

9      The provocative act doctrine may support either first or second degree
murder. In order to return a first degree murder conviction, the jury must find that
the defendant acted with express malice formed after deliberation and
premeditation. (Concha, supra, 47 Cal.4th at p. 666.) We discuss the mental state
required for first degree provocative act murder at pages 18-19, post, in connection
with Perla‘s instructional error claim.


                                              9
p. 658 [knife attack].) Malice will be implied if the defendant commits a
provocative act knowing that this conduct endangers human life and acts with
conscious disregard of the danger. (People v. Roberts (1992) 2 Cal.4th 271, 317;
Gilbert, supra, 63 Cal.2d at p. 704.)
       An important question in a provocative act case is whether the act
proximately caused an unlawful death. ―[T]he defendant is liable only for those
unlawful killings proximately caused by the acts of the defendant or his
accomplice. [Citation.] ‗In all homicide cases in which the conduct of an
intermediary is the actual cause of death, the defendant‘s liability will depend on
whether it can be demonstrated that [the defendant‘s] own conduct proximately
caused the victim‘s death . . . .‘ [Citation.] ‗[I]f the eventual victim‘s death is not
the natural and probable consequence of a defendant‘s act, then liability cannot
attach.‘ [Citation.]‖ (Concha, supra, 47 Cal.4th at p. 661.) When the defendant
commits an inherently dangerous felony, the victim‘s self-defensive killing is
generally found to be a natural and probable response to the defendant‘s act, and
not an independent intervening cause that relieves the defendant of liability.
(Ibid.; Cervantes, supra, 26 Cal.4th at pp. 868-869; Gilbert, supra, 63 Cal.2d at
pp. 704-705.) The question of proximate cause is ordinarily decided by the jury,
unless undisputed evidence reveals ―a cause so remote that a court may properly
decide that no rational trier of fact could find the needed nexus.‖ (People v.
Roberts, supra, 2 Cal.4th at p. 320, fn. 11.)
       This record contains ample evidence to support a conclusion that Perla
committed a provocative act that caused Canas to kill Morales. The evening
before the killing, Perla plotted with Ricardo and other members of the family to
―kick [Canas‘s] ass.‖10 That night, Perla went with Morales and Jorge to meet
Canas, anticipating a violent confrontation. Morales brought a BB gun and shot it

10    Perla argues her acts before the confrontation cannot be considered
―provocative acts‖ because Canas was unaware of them. However, Perla‘s earlier
conduct is highly relevant to prove her own state of mind.


                                          10
out the car window several times while waiting for Canas. As noted, Canas did
not appear. The next morning, Perla set events in motion. She roused first Jorge
and then Morales for another attack on Canas. It was Perla‘s idea to ambush
Canas at the corner where he routinely picked up his young daughter. They
stopped at Ricardo‘s house to make sure he had not yet done so. She then drove to
the corner with a loaded rifle in her car, and she tried to induce Osguera to leave
the scene before their target arrived. While Morales attacked Canas and stabbed
him, Perla stayed near the car containing the rifle she had brought. When Canas
appeared to get the upper hand in the fight, Morales ran to Perla. Perla got the
rifle from her car, cocked it, and turned toward Canas. Having made clear to
Morales what she intended him to do, she handed him the rifle. A struggle ensued
during which Canas was shot three times. He then managed to seize the gun and
shoot his attacker.
       By bringing a loaded rifle to the scene, preparing it for firing, then handing
it to her accomplice, Perla dramatically escalated the level of violence in the
encounter. Introducing a loaded firearm into the fight went beyond the acts
necessary to ―kick [Canas‘s] ass.‖ In producing the rifle, turning it toward Canas,
and putting it in the hands of Morales, who had just stabbed Canas in the face,
Perla performed acts ― ‗fraught with grave and inherent danger to human life.‘ ‖
(Taylor v. Superior Court (1970) 3 Cal.3d 578, 584, overruled on other grounds in
People v. Antick (1975) 15 Cal.3d 79, 92, fn. 12.)
       Perla argues her conduct was not sufficiently violent to support the
conviction because some cases have stated that provocative act murder liability
must be premised on a ―life-threatening act‖ that provokes a deadly response.
(See, e.g., In re Joe R. (1980) 27 Cal.3d 496, 505; People v. Mai (1994) 22
Cal.App.4th 117, 124, overruled on other grounds in People v. Scott (2009) 45
Cal.4th 743, 749.) However, read in context, the phrase ―life-threatening act‖ is
essentially a shorthand definition that restates the proximate cause requirement of
provocative act murder. We have used the phrase, for example, in summarizing


                                         11
People v. Gilbert‘s holding that provocative act murder requires an intentional act
that is beyond what is necessary to commit the underlying felony and that
provokes a lethal response from the victim or a police officer. (See In re Joe R., at
p. 502, citing Gilbert, supra, 63 Cal.2d at p. 704.) A provocative act is conduct
that is dangerous to human life, not necessarily in and of itself, but because, in the
circumstances, it is likely to elicit a deadly response. The danger addressed by the
provocative act doctrine is not measured by the violence of the defendant‘s
conduct alone, but also by the likelihood of a violent response. Thus, our cases
have not required any particular level of violence to support provocative act
murder liability. For example, in People v. Caldwell, supra, 36 Cal.3d at
page 218, we found sufficient evidence to support the provocative act murder
conviction of a defendant who left a car after a high-speed chase while holding,
but not pointing, a gun. (See id. at pp. 226, 228 (dissenting opn. of Bird, C.J.)
[noting that the gun was not pointed].)
       The evidence also establishes that Perla acted with malice. She put the
violent conduct in motion after a night of repose. She recruited her brother and
boyfriend to ambush Canas. She confirmed the child had not been picked up. She
drove to the ambush location with her license plate obscured and with a loaded
gun in her car. She watched as Morales stabbed Canas. The jury could infer from
this evidence that Perla planned the assault on Canas and planned for either herself
or her accomplices to use deadly force in the assault. Indeed, she expressed a
clear intent for Morales to shoot Canas when she faced Canas before handing the
loaded, cocked weapon to her boyfriend. This uncontested evidence about Perla‘s
use of the gun, and the jury‘s finding that she used a firearm, supports the
conclusion that she acted with malice. (See Gilbert, supra, 63 Cal.2d at p. 704;
People v. Lima, supra, 118 Cal.App.4th at p. 267; see also post, at pp. 18-22
[addressing whether malice here was express or implied].)
       Finally, substantial evidence demonstrates that Perla‘s provocative acts
proximately caused Morales‘s death. ―To be considered a proximate cause of [the


                                          12
victim‘s] death, the acts of the defendant[] must have been a ‗substantial factor‘
contributing to the result. [Citations.]‖ (People v. Caldwell, supra, 36 Cal.3d at
p. 220.) Morales stabbed Canas but then lost the fight and ran toward Perla. It
was in this context that she got the rifle, cocked it, and then handed it to her
accomplice. The death of one of the participants was a natural and probable
consequence of Perla‘s conduct. (See Cervantes, supra, 26 Cal.4th at p. 869;
People v. Roberts, supra, 2 Cal.4th at p. 321.) This was a classic example of
bringing a gun to a knife fight, planning in advance to have deadly capacity
available if an initial attack is unsuccessful. Although Canas was the person who
ultimately fired the shots that killed Morales, Canas‘s intervention was not a
superseding cause of death because, as we have observed, it is reasonably
foreseeable that a crime victim will use force in self-defense. (Cervantes, at
p. 871; Gilbert, supra, 63 Cal.2d at p. 705.)
       This fact pattern is distinguishable from the one presented in Cervantes.
Cervantes and other Highland Street gang members attended a large party thrown
by the Alley Boys gang. The two gangs were peaceful until Cervantes argued
with a woman who was associated with the Alley Boys gang, leading one of its
members to chide Cervantes for acting disrespectfully. (Cervantes, supra, 26
Cal.4th at pp. 863, 872, fn. 12.) The conflict escalated, and Cervantes shot
Richard Linares, an Alley Boys gang member who had intervened in an effort to
defuse the situation. (Ibid.) A melee followed and gang challenges were
exchanged. A minute or two later, a group of Alley Boys shot and killed Hector
Cabrera, whom they recognized as a member of the Highland Street gang. (Ibid.)
On appeal, we concluded Cervantes could not be held liable under the provocative
act doctrine because his conduct was not a proximate cause of Cabrera‘s murder.
(Id. at p. 872.) Cervantes was not the initial aggressor in the incident that gave
rise to the melee. There was no evidence Cabrera‘s killers had seen Cervantes
shoot Linares, and Cervantes had fled the scene by the time Cabrera was shot.
(Ibid.) Because the Alley Boys killers were not responding to Cervantes‘s act by


                                          13
shooting back at him, or an accomplice, their killing of Cabrera could not be
considered a ― ‗reasonable response to the dilemma thrust upon [them]‘ ‖ by
Cervantes‘s conduct. (Id. at p. 873, quoting Gilbert, supra, 63 Cal.2d at p. 705.)
Instead, the killers acted on their own initiative to avenge a situation in which
neither they nor their victim had been involved. Based on these facts, we
concluded the willful and malicious murder of Cabrera was a product of the Alley
Boys‘ independent criminal conduct and, thus, an intervening cause that absolved
Cervantes of liability. (Id. at pp. 872-874.)
       The circumstances here are quite different. The jury rejected Perla‘s
assertion that, when Canas killed Morales, Canas acted with malice and used force
beyond that allowed for lawful self-defense. The entire episode was thrust upon
an unsuspecting Canas, who responded to Perla‘s provocative acts by disarming
and killing Morales. Under these circumstances, Canas‘s self-defensive actions
were neither criminal nor an independent cause of death. Thus, Cervantes is
distinguishable. Canas‘s subsequent conduct is also consistent with this
conclusion. Canas did not flee or try to dispose of the weapon. Instead, although
injured himself, he remained at the scene, surrendered the gun, and cooperated
with police.
       Perla also asserts she cannot be held liable because Morales’s provocative
acts led to his own death. We have held that a defendant cannot be held
vicariously liable for aiding and abetting an accomplice in criminal acts that led to
the accomplice‘s death. (People v. Antick, supra, 15 Cal.3d 79, disapproved on a
related ground in People v. McCoy (2001) 25 Cal.4th 1111, 1119-1120, 1123.) In
Antick, we stated that ―neither the felony-murder doctrine nor the theory of
vicarious liability may be used to hold a defendant guilty of murder solely because
of the acts of an accomplice, if the accomplice himself could not have been found
guilty of the same offense for such conduct.‖ (People v. Antick, at p. 89, italics
added.) However, Antick was a case of pure vicarious liability. Although Antick
had aided and abetted in a crime that led the police to his accomplice, he was not


                                          14
present when officers confronted the accomplice and shot him dead. (Id. at
pp. 83-84.) Here, substantial evidence supports the murder conviction based on
Perla‘s own provocative acts. As we explained in People v. Caldwell, supra, 36
Cal.3d at pages 220-221, when the conduct of two felons acting in concert
provokes a deadly response, the question is only whether the defendant‘s acts were
a substantial factor contributing to the resulting death. If so, that defendant is
guilty. Accompanying provocative acts of the accomplice do not dissipate
culpability. Morales and Perla acted together to try to kill Canas. Because Perla‘s
own provocative acts were a substantial factor in causing the death of Morales, the
Antick line of cases does not apply. (Id. at p. 221.)
       Finally, Perla‘s persistence in pursuing a violent confrontation with Canas
is significant. The decision to abandon a conflict is an important one in the law.
Doing so may indicate a lack of criminal intent.11 A refusal to do so may reflect
the required mens rea. Here, Perla had many opportunities to walk away from the
conflict but relentlessly refused to do so. After the ―family council‖ in which she
raised the prospect of assaulting Canas, she went with Jorge and Morales to the
place chosen for the fight. She knew that Morales had a BB gun because he shot it
several times out the car window. When they left the scene because Canas did not
arrive, there was a major break in the action. But Perla refused to let matters lie.
The next day, even after rounding up her accomplices and bringing a gun to the
scene, she had several opportunities to turn away from the potential for violence.
As noted, the trio had to wait for Canas‘s arrival. Rather than leave, Perla stayed
and tried to persuade Osguera to depart. During the initial conflict between Canas
and Morales, Perla did nothing to try to stop the fight. When Morales ran to her,


11      For example, abandonment can be a defense to attempted crimes. CALJIC
No. 6.02 states: ―If a person intends to commit a crime but, before committing
any act toward the ultimate commission of the crime, freely and voluntarily
abandons the original intent and makes no effort to accomplish it, that person has
not attempted to commit the crime.‖ (See also CALCRIM No. 460.)


                                          15
they could have withdrawn. Instead, Perla raised the level of violence by
introducing the rifle. These facts reflect Perla‘s relentless pursuit of a violent
confrontation, the deadly potential of which she ensured.
II.    Instructional Error Was Harmless
       As noted, Perla was convicted of the attempted premeditated and deliberate
murder of Canas. She did not challenge that conviction in the Court of Appeal or
otherwise claim the jury was improperly instructed on that count. She does assert
error, however, in the instructions addressing the mental state required to convict
her of the first degree murder of Morales.
       The jury instructions summarized the possible options for verdicts on the
charged offenses.12 With respect to the crime against Canas (count 1), the jury
was told it could find Perla guilty of either attempted murder or attempted
voluntary manslaughter, or not guilty of any crime. The jury was instructed
accordingly on the required elements of attempted murder (CALCRIM No. 600)
and attempted voluntary manslaughter, under the theories of heat of passion
(CALCRIM Nos. 603) and imperfect self-defense (CALCRIM No. 604). With
respect to the death of Morales (count 2), the jury was told it could find Perla
guilty of either first or second degree murder, voluntary manslaughter or not guilty
of any crime. It was instructed on the requirements for provocative act murder
(CALCRIM No. 560), and on the lesser included offense of voluntary
manslaughter (CALCRIM Nos. 570, 571).
       The jury received potentially confusing instructions about how to determine
the degree of the Morales murder. With regard to the provocative act murder of
Morales, the jury was told: ―If you decide that the defendant is guilty of murder,
you must decide whether the murder is first or second degree. [¶] To prove that
the defendant is guilty of first degree murder, the People must prove that: [¶] One,

12     The instructions also explained the various options and requirements for
separate findings on the allegations related to these charges. Because those
instructions are not relevant to the issue before us, we do not discuss them.


                                          16
as a result of the defendant’s provocative act, Fernando Morales was killed during
the commission of attempted willful, deliberate, and premeditated murder; and [¶]
Two, defendant intended to commit attempted willful, deliberate, and
premeditated murder when she did the provocative act. [¶] In deciding whether
the defendant intended to commit attempted willful, deliberate, and premeditated
murder and whether the death occurred during the commission of attempted
willful, deliberate, and premeditated murder, you should refer to the instructions I
have given you on attempted willful, deliberate, and premeditated murder.‖
(CALCRIM No. 560, italics added.)13 The jury was instructed on the mental state
for attempted murder pursuant to CALCRIM No. 601: ―If you find the defendant
guilty of attempted murder under Count 1, you must then decide whether the
People have proved the additional allegation that the attempted murder was done
willfully, and with deliberation and premeditation. [¶] The defendant Perla
Gonzalez acted willfully if she intended to kill when she acted. The defendant
Perla Gonzalez deliberated if she carefully weighed the considerations for and
against her choice and, knowing the consequences, decided to kill. The defendant


13      CALCRIM No. 560 sets forth two alternatives for defining what constitutes
a first degree murder under the provocative act doctrine: (1) the defendant‘s
provocative act was a murder or attempted murder that the defendant personally
committed willfully, deliberately, and with premeditation; or (2) the defendant‘s
provocative act caused death during the defendant‘s intentional commission of one
of the enumerated felonies in section 189. The trial court instructed the jury with
the second of these alternatives, cross-referencing the instruction on attempted
murder. However, attempted murder is not one of the enumerated felonies in
section 189. (Concha, supra, 47 Cal.4th at p. 661, fn. 2.) When a defendant‘s
provocative act is committed in the course of an attempted murder, as occurred
here, the jury should be instructed on first degree murder in accordance with
CALCRIM No. 560‘s explanation of deliberation and premeditation. In contrast
to the ―enumerated felony‖ alternative, this instruction specifically cautions that a
conviction of first degree provocative act murder requires a finding that the
defendant ―personally . . . acted willfully, deliberately, and with premeditation
when the (murder/attempted murder) was committed.‖ (CALCRIM No. 560,
italics added; see Concha, at p. 666.)


                                         17
Perla Gonzalez premeditated if she decided to kill before acting. [¶] The
attempted murder was done willfully and with deliberation and
premeditation if either the defendant or Fernando Morales or both of them
acted with that state of mind.‖ (All emphasis added.)
       These instructions properly informed the jury that, before Perla could be
convicted of the provocative act murder of Morales, the prosecution had to prove
Morales was killed during the commission of an attempted premeditated and
deliberate murder. Furthermore, the jury was instructed that a first degree murder
conviction required a finding that Perla herself acted with an intent to kill formed
after deliberation, and with premeditation, when she committed the provocative
act. The terms ―willful,‖ ―deliberate,‖ and ―premeditated‖ were properly defined
and linked to Perla. It is the last sentence of CALCRIM No. 601, set out in
boldface above, that creates the potential for confusion. That sentence is a correct
statement of the mental state requirements for an attempted murder committed by
a defendant and an accomplice. When referred to in the context of defining a first
degree provocative act murder, however, the sentence gives the incorrect
impression that the defendant can be found to have acted with premeditation and
deliberation if either the defendant or an accomplice harbored that mental state.
       We recently explained the circumstances in which liability for first degree
murder may attach under the provocative act doctrine: ―Where the individual
defendant personally intends to kill and acts with that intent willfully, deliberately,
and with premeditation, the defendant may be liable for first degree murder for
each unlawful killing proximately caused by his or her acts, including a
provocative act murder. Where malice is implied from the defendant‘s conduct or
where the defendant did not personally act willfully, deliberately, and with
premeditation, the defendant cannot be held liable for first degree murder.‖
(Concha, supra, 47 Cal.4th at pp. 663-664.) The mens rea required for a first
degree murder is thus different from that required for attempted murder. Whereas
an attempted murder conviction requires that either the defendant or a principal


                                          18
acted with premeditation and deliberation, ―for a first degree murder conviction
[under the provocative act doctrine], the jury must find that the individual
defendant personally acted willfully, and with deliberation and premeditation
during the attempted murder. ([People v.] McCoy, supra, 25 Cal.4th at p. 1118.)‖
(Concha, at p. 666.) Accordingly, when a provocative act theory is relied on, the
jury should be instructed that first degree murder requires proof that the defendant
personally premeditated and deliberated the attempted murder that provoked a
lethal response.
       Here, the jury was properly instructed in detail about the mental state Perla
was required to have in order to be convicted of the first degree murder of
Morales. However, because the court cross-referenced CALCRIM No. 601‘s
instruction on attempted murder, they were also told that the mens rea requirement
for this conviction could be satisfied if Morales acted with premeditation and
deliberation in attempting to kill Canas. The final sentence of CALCRIM No. 601
is an incorrect statement of the mens rea required for first degree murder under the
provocative act doctrine, as the Attorney General concedes.
       Both sides agree the instructions were deficient, but they disagree about
whether the error requires reversal. (See Concha, supra, 47 Cal.4th at pp. 666-667
[remanding for determination of prejudice].) The conflicting sentence in
CALCRIM No. 601 had the potential to override, or cancel out, the otherwise
correct instructions the jury received on first degree murder, making it conceivable
that the jury could convict on first degree murder without deciding whether Perla
acted with premeditation and deliberation. The same potential for prejudice arises
when jury instructions omit an element of an offense. Accordingly, we consider
the prejudicial effect of the error here in the context of cases dealing with the
failure to instruct on all elements of an offense.
       ―[A]n instructional error that improperly . . . omits an element of an
offense . . . generally is not a structural defect in the trial mechanism that defies
harmless error review and automatically requires reversal under the federal


                                           19
Constitution.‖ (People v. Flood (1998) 18 Cal.4th 470, 502-503.) Instead, an
erroneous instruction that omits an element of an offense is subject to harmless
error analysis under Chapman v. California (1967) 386 U.S. 18. (Neder v. United
States (1999) 527 U.S. 1, 15 (Neder); People v. Prieto (2003) 30 Cal.4th 226,
256.) In general, the Chapman test probes ―whether it appears ‗beyond a
reasonable doubt that the error complained of did not contribute to the verdict
obtained.‘ [Citations.]‖ (Neder, at pp. 15-16.) The high court in Neder
analogized instructional errors that arguably prevent the jury from finding an
element of an offense to the erroneous admission or exclusion of evidence. (Id. at
pp. 17-18.) In such cases, ―the harmless-error inquiry must be essentially the
same: Is it clear beyond a reasonable doubt that a rational jury would have found
the defendant guilty absent the error?‖ (Id. at p. 18.)
       The jury heard uncontroverted evidence that Perla personally premeditated
and deliberated the attempted murder of Canas. Perla came to her brother
Ricardo‘s house the night of his dispute with Canas. She plotted with others to
assault Canas in retribution. She went with her brother Jorge and Morales to the
spot where they planned to fight Canas. After that goal was thwarted because
Canas did not arrive, Perla devised a new plan, which she launched the next
morning. With her license plate obscured and a loaded rifle in the back of her car,
she rounded up her accomplices and checked to make sure Canas had not yet
picked up his daughter. She then drove to the planned ambush spot and waited for
Canas. She urged an adult witness (Osguera) to leave before the confrontation
occurred. During the ensuing fight initiated by her accomplice, Perla waited by
the car, the rifle within reach. When the fight turned against Morales, Perla
immediately seized the loaded weapon, pulled back the hammer so that it was
ready to fire, and handed it to Morales for him to use against Canas.
       In People v. Anderson (1968) 70 Cal.2d 15, 26-27, we identified three
categories of evidence relevant to determining premeditation and deliberation:
(1) events before the murder that indicate planning; (2) a motive to kill; and (3) a


                                          20
manner of killing that reflects a preconceived design to kill. As we have
repeatedly pointed out, and now reaffirm, ―[t]he Anderson guidelines are
descriptive, not normative. [Citation.]‖ (People v. Perez (1992) 2 Cal.4th 1117,
1125.) They are not all required (see People v. Lucero (1988) 44 Cal.3d 1006,
1021), nor are they exclusive in describing the evidence that will support a finding
of premeditation and deliberation. (People v. Perez, at p. 1125.)
       Even so, the evidence here satisfies all three Anderson factors. The jury
could have fairly concluded the following: (1) Perla planned to attack Canas when
he was especially vulnerable, both because he did not expect the confrontation
with people who were strangers to him and because he was in the presence of his
three-year-old daughter. Perla planned to use deadly force against Canas because
she brought a loaded rifle to the ambush site and stood within grabbing distance of
the weapon throughout the fight. She obscured her license plate to thwart
identification and apprehension. (2) Perla had a motive to kill Canas because of
his conflict with her brother. (3) When Canas successfully fought off a knife
attack, Perla deliberately escalated the violence of the encounter by handing her
accomplice a loaded, cocked rifle. Her orchestration of an armed assault on an
unsuspecting, unarmed man, and her giving of a gun to a man she knew had just
used deadly force, are acts that reflect a preconceived design to kill. The incident
could have ended when Morales ran from the fight toward Perla at the car. Rather
than permit cessation of the hostilities, Perla handed Morales the cocked and
loaded rifle she had brought to ensure that Canas would be punished and, if
necessary, killed. From this evidence, it is clear beyond a reasonable doubt that a
rational jury would have found Perla premeditated and deliberated the attempted
murder of Canas. (Neder, supra, 527 U.S. at p. 18; People v. Concha (2010) 182
Cal.App.4th 1072, 1089-1090.)
       The defense strongly contested Perla‘s intent to kill Canas, claiming instead
that she acted in self-defense or defense of others. Defense counsel argued that
Perla handed Morales the gun because she wanted to help him protect himself, not


                                         21
because she had maliciously intended that he use it to kill. However, in finding
Perla guilty of attempted murder, the jury necessarily determined that she
personally intended to kill Canas. ― ‗[T]he crime of attempted murder requires a
specific intent to kill . . .‘ [Citation.]‖ (People v. Guerra, supra, 40 Cal.3d 377,
386.) Apart from disputing her intent to kill, Perla introduced no evidence or
argument challenging the prosecution‘s case on the Anderson premeditation and
deliberation factors. As the Court of Appeal determined on remand in People v.
Concha,14 here ―the evidence [Perla] introduced dealt with [her] participation in
the murder and [her] intent to kill, and the jury found against [her] on those points.
[She] did not contest the facts that go specifically to premeditation and
deliberation . . . .‖ (People v. Concha, supra, 182 Cal.App.4th at p. 1090.) Thus,
―[t]he facts supporting premeditation and deliberation were uncontradicted once
the intent element was established.‖ (Ibid.)
       The evidence of Perla‘s planning and deliberation was quite strong.
Conversely, the evidence that Morales alone intended a deadly outcome was
weak. Perla was clearly the driving force behind the attack. She was the one with
the motive and hostility toward Canas. Morales did not even know Canas. Perla
recruited him to participate, and, when the fight turned against him, Perla urged
him to shoot Canas with a loaded rifle. Perla‘s brother Jorge said he would attack
Canas with a baseball bat, and Morales agreed to help if Canas was besting Jorge.
The evidence suggests Morales was thrust into a leading role only because Jorge
left to secure help with Perla‘s disabled car. When Perla handed Morales the
loaded rifle, he had been disarmed and was losing the fight. Morales may have
believed he needed to shoot in self-defense, or he may have made an impulsive

14      We reversed the judgment in Concha, supra, 47 Cal.4th at page 667, for the
same instructional error that occurred here. On remand, the Court of Appeal
determined the error was harmless beyond a reasonable doubt because evidence
that the defendant personally premeditated and deliberated the attempted murder
was uncontradicted. (People v. Concha, supra, 182 Cal.App.4th at pp. 1089-
1090.)


                                          22
decision to use the rifle and win the fight. In contrast, Perla‘s life was never in
danger, and there is no evidence suggesting her decision to retrieve and cock a
loaded rifle that she brought to the fight was rash or unconsidered. On this
evidence, it is highly unlikely that a rational jury would have concluded Morales
alone acted with deliberate deadly intent, and convicted Perla of first degree
murder based on Morales‘s state of mind.
       Finally, Perla argues the instructional error cannot be considered harmless
because, even if a hypothetical rational jury would have found she acted with
premeditation and deliberation, there is an indication that this jury may have
rendered a verdict tainted by the error. Like the dissenting justice below, she finds
it significant that the jury sent out a note during deliberations requesting an
explanation of second degree murder. In response, the court directed the jury to
CALCRIM No. 560. As noted, CALCRIM No. 560 directly and accurately
described the state of mind Perla herself must have formed to be guilty of first
degree murder. However, the version of CALCRIM No. 560 given to this jury
also referred to the instruction on attempted murder for an explanation of
premeditation and deliberation.
       In light of the jury‘s question, Perla argues the appropriate test of prejudice
is not whether a rational jury would have found she acted with premeditation and
deliberation (Neder, supra, 527 U.S. at p. 18), but whether circumstances make it
clear beyond a reasonable doubt that this jury so found. She argues Neder‘s
harmless error test applies only when the omitted element is undisputed and
supported by overwhelming evidence. Because her mental state was a hotly
contested issue at trial, Perla contends the appropriate harmless error test is
furnished not by Neder, but by Yates v. Evatt (1991) 500 U.S. 391, 404-405. We
disagree. Yates articulated guidelines for determining when an erroneous
mandatory presumption instruction is harmless. The prejudicial impact of such an
error is quite different from the omission of an instruction on a required element of
an offense. Presumptions narrow the jury‘s focus and may potentially cause jurors


                                          23
to ignore evidence related to the matter presumed. (See id. at pp. 405-406.)
Although the Chapman test typically requires harmlessness to be judged from a
review of the entire record (Delaware v. Van Arsdall (1986) 475 U.S. 673, 681), it
cannot always be assumed that a jury instructed with an erroneous mandatory
presumption did, in fact, consider all the evidence on the issue in question. (Yates,
at pp. 405-406.) Thus, in this specific context, Yates held that ―the issue under
Chapman is whether the jury actually rested its verdict on evidence establishing
the presumed fact beyond a reasonable doubt, independently of the presumption.‖
(Yates, at p. 404.)
       By contrast, Neder furnishes the appropriate harmless error test for
instructions that erroneously omit an element of an offense. (People v. Mil (2012)
53 Cal.4th 400, 409-415.) In this context, the Neder court concluded a
demonstration of harmless error does not require proof that a particular jury
―actually rested its verdict on the proper ground (Neder, supra, 527 U.S. at
pp. 17–18), but rather on proof beyond a reasonable doubt that a rational jury
would have found the defendant guilty absent the error (id. at p. 18). Although the
former can be proof of the latter (see id. at p. 26 (conc. opn. of Stevens, J.)), the
Neder majority made clear that such a determination is not essential to a finding of
harmlessness (id. at p. 16, fn. 1), which instead ‗will often require that a reviewing
court conduct a thorough examination of the record‘ (id. at p. 19).‖ (People v.
Cross (2008) 45 Cal.4th 58, 71, second italics added (conc. opn. of Baxter, J.).)
       We have exhaustively reviewed the trial evidence to determine ―whether
the record contains evidence that could rationally lead to a contrary finding with
respect to the omitted element‖ of premeditation and deliberation. (Neder, supra,
527 U.S. at p. 19; see People v. Mil, supra, 53 Cal.4th at p. 417.) We have
concluded no rational juror could find that Perla intended to murder Canas but did
not personally act with premeditation and deliberation.
       Perla speculates that the jury‘s request for an instruction on second degree
murder indicates it was focused on the issue of whether she could be held


                                          24
vicariously liable for Morales‘s mental state. However, other concerns may have
just as easily prompted the request. The jury‘s note first asked, ―Is [instruction]
#39 for second degree murder?‖ It then stated, ―We need an explanation of 2nd
degree murder.‖ Although the jury had received instructions on all the lesser
included offenses of murder and attempted murder, and a specific instruction
defining premeditated and deliberate attempted murder, it received no separate
instruction explaining what constitutes a second degree murder. The jury was
simply told, as jurors have long been instructed in this state, that a murder that
does not meet the requirements of first degree murder is murder in the second
degree. The jury may have believed it was missing a necessary instruction, or it
may have been confused about the difference between lesser degrees of an offense
and lesser included offenses. The jury asked whether instruction No. 39 described
second degree murder, but this instruction set forth the required elements of
voluntary manslaughter based on heat of passion, a lesser included offense of
murder.15 Nor do we believe the court‘s response, referencing CALCRIM
No. 560, necessarily renders the error prejudicial. If that were the standard, any
instructional error that elicits a related jury question would be reversible per se,
without regard to the evidence. That is not the law. (Neder, supra, 527 U.S. at
pp. 8-9; see also Washington v. Recuenco (2006) 548 U.S. 212, 218-221.)
       Because the evidence shows beyond a reasonable doubt that a rational jury
would have found that Perla personally premeditated and deliberated the attempted
murder of Canas, the absence of an instruction on this point was harmless.
(Neder, supra, 527 U.S. at p. 18.)




15    Instruction No. 39 was CALCRIM No. 570, ―Voluntary Manslaughter:
Heat of Passion—Lesser Included Offense.‖


                                          25
                              DISPOSITION
     The judgment of the Court of Appeal is affirmed.
                                                    CORRIGAN, J.


WE CONCUR:
CANTIL-SAKAUYE, C. J.
KENNARD, J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
LIU, J.




                                     26
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Gonzales
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 190 Cal.App.4th 968
Rehearing Granted

__________________________________________________________________________________

Opinion No. S189856
Date Filed: July 5, 2012
__________________________________________________________________________________

Court: Superior
County: San Bernardino
Judge: Michael Knish, Commissioner

__________________________________________________________________________________

Counsel:

Laura G. Schaefer, under appointment by the Supreme Court, for Defendant and Appellant.

Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Steven T. Oetting, Gil Gonzalez and
William M. Wood, Deputy Attorneys General, for Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Laura G. Schaefer
Boyce & Schaefer
934 23rd Street
San Diego, CA 92102-1914
(619) 232-3320

William M. Wood
Deputy Attorney General
110 West A Street, Suite 1100
San Diego, CA 92101
(619) 645-2202
