Filed 2/28/14 In re Gonzalez CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


In re SERGIO GONZALEZ                                                  G044464

     on Habeas Corpus.                                                 (Super. Ct. No. 06CF2893 &
                                                                       M-13731)

                                                                       ORDER MODIFYING OPINION
                                                                       AND DENYING PETITION FOR
                                                                       REHEARING; NO CHANGE IN
                                                                       JUDGMENT



                   It is ordered that the opinion filed February 10, 2014, be modified as
follows:
                   On page 14, at the end of the second full paragraph, after the last sentence
beginning with “We need not here decide” add a sentence to read:
                   Whether defendant’s belief that he “found who did it,” was a reasonable
belief under the circumstances of this case would be a question of fact for the fact finder.
            This modification does not change the judgment.




                                             RYLAARSDAM, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.




                                         2
Filed 2/10/14 In re Gonzalez CA4/3 (unmodified version)




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE



In re SERGIO GONZALEZ                                                  G044464

     on Habeas Corpus.                                                 (Super. Ct. No. 06CF2893 &
                                                                       M-13731)

                                                                       OPINION


                   Original proceeding; petition for a writ of habeas corpus to challenge an
order of the Superior Court of Orange County, Richard F. Toohey, Judge. Petition
granted.
                   Peter Gold for Petitioner and Appellant.
                   Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Gary W. Schons, Assistant Attorney General, Barry Carlton, Scott C.
Taylor and Marrisa Bejarano, Deputy Attorneys General, for Plaintiff and Respondent.


                                          *                  *                  *
              Petitioner Sergio Gonzalez filed a petition for writ of habeas corpus
challenging his conviction for second degree murder. He contends he was denied his
state and federal constitutional rights to the effective assistance of appellate counsel. His
claim is based on defense counsel’s failure to argue on appeal that the instruction on
voluntary manslaughter based on heat of passion was erroneous. With his petition he
filed a declaration from Nancy J. King, the lawyer who represented him in the earlier
appeal. In it, King stated she had not taken the issue into account when preparing the
appeal but “[h]ad I considered this instruction more closely, I would have raised an issue
on appeal contesting it.”
              For the reasons explained below, we grant the petition.


                             PROCEDURAL BACKGROUND


              This court affirmed petitioner’s conviction on August 17, 2009. (People v.
Gonzalez (Aug. 17, 2009, G040209) [nonpub. opn.].) The only issue raised in that appeal
was whether the sentence imposed constituted cruel and unusual punishment. Thereafter
petitioner filed a petition for writ of habeas corpus in the Orange County Superior Court.
It alleged he was denied effective assistance of counsel on appeal because his lawyer
failed to argue that he was entitled to a reversal based on an erroneous jury instruction.
The superior court denied the petition on the grounds petitioner had an adequate remedy
at law in the form of a motion to recall the remittitur, which could be filed in this court.
              Petitioner filed a petition for habeas corpus and a motion to recall the
remittitur in this court. He also filed a request for judicial notice of the briefs, pleadings,
motions, orders, and record on appeal in case number G040209. We granted the request
for judicial notice of the specified documents and denied the petition for habeas corpus
and the motion to recall the remittitur.



                                               2
              Thereafter, petitioner filed a petition for review in the California Supreme
Court, which issued its order granting the petition and transferring it to this court. The
Supreme Court ordered this court to vacate its order denying the habeas petition and to
issue an order to show cause returnable before this court. We issued such an order and
thereafter issued an opinion granting the petition.
              The Attorney General then filed a petition for review in the California
Supreme Court. The Supreme Court granted the petition and deferred consideration until
disposition of a related issue in People v. Beltran (Beltran). Subsequently, the Supreme
Court decided (Beltran (2013) 56 Cal.4th 935) and transferred this case to us with
directions to vacate our decision and reconsider the cause in the light of that decision,
People v. Verdugo (2010) 50 Cal.4th 263 (Verdugo), and People v. Butler (2009) 46
Cal.4th 847 (Butler). We have reconsidered this case in the light of these decisions and
again grant the petition.


                                          FACTS


              We repeat the facts as stated in our earlier opinion.
              “Defendant Sergio Gonzalez was convicted of the second degree murder of
Sam Chea. True findings were made that he personally discharged a firearm causing the
victim’s death and that he personally used a firearm in the murder. The jury returned a
not true finding that he committed the crime for the benefit of a criminal street gang. He
was found not guilty of street terrorism. The court sentenced defendant to 40 years to life
in prison.
              “Santa Ana Police Officer Jesus Delabarcena went to the scene of a
stabbing at Century High School on September 11, 2006. His description of defendant
was: ‘Very emotional. He appeared to be very angry, and when his mom showed up, he
became a little bit more emotional and went to her and gave her a hug.’ Defendant told

                                              3
his mother ‘not to worry that he knew who had done it, it was some Chinos, in Spanish,
Chinese.’ Defendant then placed a telephone call.
              “Five persons were arrested for stabbing Oscar Gonzalez, defendant’s 14-
year-old brother. All five claim an allegiance to a criminal street gang known as Tiny
Rascals or TRG. Oscar Gonzalez, who died two days after he was stabbed, claimed the
Little Minnie Street gang. The victim of the shooting murder, Sam Chea, whose moniker
was Midget, was a member of WDC or We Don’t Care gang. The three who were
arrested and charged with the instant shooting, defendant, Abel H. and Antonio Barboza,
were also members of the Little Minnie Street gang.
              “Defendant was 15 on September 11, 2006. ‘Some girl’ called him at about
3:00 p.m. and said his brother was surrounded by a lot of people and was being stabbed.
She said to hurry over. Defendant ran to Century High School. When he got to the scene
of the stabbing, he was told his brother had been attacked by Cambodians. At one point,
while he was at the scene, he was placed in a police car and overheard a police officer
‘radio that the people who had hurt my brother were five Asian gang members from TRG
or WDC.’
              “Afterward, Barboza twice asked defendant what he was going to do about
it. Defendant started walking towards the train tracks. He heard footsteps behind him,
and turned to see Barboza and Abel. He looked over the fence and saw three people. ‘I
knew one of them was Phany, she was from WDC.’ Defendant said: ‘And at that same
time Tony handed me something. I looked over and it was a gun.’ He said that was the
first time he realized Barboza was carrying a gun, and that he had intended to fight
‘whoever came [a]long that was a gang member that hurt my little brother,’ but with his
hands. Defendant placed the gun into his waistband. He looked over and saw a car with
three male Asian gang members inside.
              “Defendant walked up to the car and asked the victim where he was from.
The response was ‘We Don’t Care,’ as well as a gang sign for ‘W.’ To defendant that

                                             4
meant ‘The Asian gang WDC.’ At trial, defendant said he thought somebody from WDC
had stabbed his brother. He said: ‘In my head I said I found who did it, and I shot into
the car.’ Then he looked around and ‘everything seemed brighter, whiter. I seen two
figures running away and I assumed it was Tony and Abel so I followed them.’
              “Abel was 13 years old when he testified, but 12 on the day of the murder.
He said he was in the sixth grade on September 11, 2006, when his friend, Oscar
Gonzalez, was stabbed. After the stabbing, Abel was sitting outside some apartments
when defendant’s uncle dropped him off. Defendant started walking around and Abel
said, ‘we started following him like we had to run to catch up to him.’ Abel saw Tony
pass something to defendant. The prosecutor asked who Tony was, and Abel answered:
‘Tony, the one that got sentenced on this case.’ They saw a car and Sergio ‘hit them up,’
which is a ‘gang thing’ for ‘tell[ing] where they [are] from.’ Abel said he turned his back
and then heard a gunshot and started running.
              “Phany Sam claimed the We Don’t Care gang in the past, but no longer
does. On September 11, 2006, she saw a shooting. She said she was ‘walking and I just
saw a group of people walking all wearing white T-shirts.’ She estimated there were
‘like 13’ people coming from the railroad tracks right behind her apartment building. She
said she ‘saw them coming up to a black car where my brother’s friend’s car was.’ Her
brother’s friend was named Midget; he was seated in the front passenger seat. Two
others were in the car. Phany saw ‘some guy’ pull out a gun. The others surrounded the
car. She heard three shots and went into her house. Phany said she remembered telling a
detective that she ‘recognized the guy who shot the gun as Sergio Gonzalez.’
              “Matthew McLeod, who works for the Santa Ana Police Department, is the
detective who interviewed Phany on September 19, 2006. Phany told McLeod that
defendant shot the gun that day and that she knew defendant’s brother Oscar. McLeod
said: ‘She told us that from her vantage point, which was approximately 20 feet from the
victim vehicle, if you will, she saw Sergio Gonzalez, who was wearing a white T-shirt at

                                             5
the time, lift up his T-shirt and withdraw a handgun using his right hand from his
waistband area, pointed it at the front passenger side of the vehicle and fired I think two
shots that she said, into the vehicle.’
              “McLeod testified as a gang expert. The prosecutor asked him about
retaliation, and he responded: ‘In terms of respect in the criminal street gang subculture,
any action that’s taken or any sign of disrespect must immediately be met with either the
same and usually and I say usually, 99 percent of the time, a higher or greater level of
disrespect such that, if I’m a gang member and another gang member looks at me in a
disrespectful fashion, which is usually termed “mad dogging,” if a rival gang member
stares at me menacingly, then the onus is upon me to take some action, and that action is
[fisticuffs], if I have a weapon, stabbing them, something like that.’ He said that if a
member of a gang were stabbed, it would be ‘very, very, very strange . . . for there not to
be any type of retaliation.’
              “The prosecutor posed a hypothetical question, which included the same
facts in the instant case, to McLeod and asked his opinion about whether or not the
hypothetical murder was committed for the benefit of the Little Minnie Street gang.
McLeod said it definitely was. He explained the hypothetical gang members were acting
‘in concert to conduct the crime.’ He said the hypothetical murder ‘benefits the Little
Minnie Street gang not only in exacting revenge, if you will, or retaliation for the primary
or initiating a stabbing, but also garners respect for the gang as a whole as well as the
individual members including the victim of the stabbing.’
              “After hearing petitioner’s younger brother had been stabbed, petitioner and
their mother went to the scene of the crime. Petitioner appeared angry and acted very
emotionally. Petitioner and his mother went to the hospital; thereafter petitioner’s uncle
took him home. The events constituting the crime occurred after he had been returned to
his home.”



                                              6
                                       DISCUSSION


1. Our earlier analysis.
               We previously analyzed the case in our prior opinion as follows.
        “At the request of petitioner’s attorney, the court instructed the jury on voluntary
manslaughter, based on heat of passion, as a lesser included offense. The version of
CALCRIM No. 570 in effect and given to the jury stated in part that a ‘killing that would
otherwise be murder is reduced to voluntary manslaughter if the defendant killed
someone because of a sudden quarrel or in the heat of passion’ and that this situation
prevails if three elements are satisfied: ‘1. The defendant was provoked; [¶] 2. As a
result of the provocation, the defendant acted rashly and under the influence of intense
emotion that obscured his reasoning or judgment; and [¶] 3. The provocation would
have caused an ordinary person of average disposition to act rashly and without due
deliberation, that is, from passion rather than from judgment.’ (CALCRIM No. 570.)
This is a correct and unambiguous statement of the rule.
               “But the instruction went on to say: ‘It is not enough that the defendant
simply was provoked. The defendant is not allowed to set up his own standard of
conduct. You must decide whether the defendant was provoked and whether the
provocation was sufficient. In deciding whether the provocation was sufficient, consider
whether a person of average disposition would have been provoked and how such a
person would react in the same situation knowing the same facts. . . .’ (The italicized
portion of the instruction is at issue here.) The instruction as given could be taken to
mean the jury is to decide whether reasonable person would have acted rashly as a result
of the provocation. But it could also be interpreted to mean the jury should consider
whether the provocation would have caused a reasonable person to kill. And that is not
the test.



                                              7
              “Voluntary manslaughter is the unlawful killing of another without malice
‘upon a sudden quarrel or heat of passion.’ (Pen. Code, § 192, subd. (a); See People v.
Koontz (2002) 27 Cal.4th 1041, 1086.) ‘A heat of passion theory of manslaughter has
both an objective and a subjective component. [Citations.] [¶] “‘To satisfy the [objective
or] “reasonable person” element . . . the accused’s heat of passion must be due to
‘sufficient provocation.’” [Citations.]’ (People v. Moye (2009) 47 Cal.4th 537, 549.) As
petitioner points out, the “‘“provocation”’[must be] sufficient to cause an ordinary person
of average disposition to act rashly and without deliberation. [Citation.]” The focus is on
the provocation―the surrounding circumstance―and whether it was sufficient to cause a
reasonable person to act rashly. How the killer responded to the provocation and the
reasonableness of the response is not relevant to sudden quarrel or heat of passion.’
(People v. Najera (2006) 138 Cal.App.4th 212, 223.)
              “Yet, as noted, the instruction as given might be interpreted to mean that
the test is not only whether a reasonable person would have been provoked, but also
whether a reasonable person, when so provoked, would have committed the killing.
Thus, the language at issue is, at best, ambiguous. And the ambiguity was recognized,
resulting in a 2008 amendment to the language at issue in CALCRIM No. 570 as follows:
‘In deciding whether the provocation was sufficient, consider whether a person of
average disposition, in the same situation and knowing the same facts, would have
reacted from passion rather than from judgment.’” (Italics added.)
              ““‘If a jury instruction is ambiguous, we inquire whether there is a
reasonable likelihood that the jury misunderstood and misapplied the instruction.”
[Citations.] “‘“‘[T]he correctness of jury instructions is to be determined from the entire
charge of the court, not from a consideration of parts of an instruction or from a particular
instruction.’”’” [Citations.] The reviewing court also must consider the arguments of
counsel in assessing the probable impact of the instruction on the jury. [Citations.]’
(People v. Young (2005) 34 Cal.4th 1149, 1202.)

                                             8
              “Defense counsel’s closing argument on this point was limited. She
argued, in the language of the instruction, that heat of passion would reduce the charge to
voluntary manslaughter ‘if the defendant was provoked as a result of provocation, the
defendant acted rashly and under the influence of intense emotion that obscured his
reasoning or judgment, and . . . the provocation would have caused a person of average
disposition to act rashly and without due deliberation, that is from passion rather than
from judgment.’”
              “‘The prosecutor’s argument was more extensive. He stated, ‘But you
know where voluntary manslaughter fails, is the next element. The next element is
absolutely not met. The provocation would have caused a person of average disposition
to act rashly and without due deliberation[,] that is from passion rather than from
judgment. [¶] It is the reasonable persons standard. . . . But that’s where this fails.’ He
went on: ‘[I]t’s not the rage person standard. It’s not the reasonable gang member
standard either. It is the reasonable person standard. What would a reasonable person do
under the circumstances.’ (Italics added.) He further argued, ‘[I]t is not a 15-year-old
gangster standard, it is a reasonable person, it is a person of average, ordinary prudence[,]
what they could do, a reasonable person, under the circumstances.’ (Italics added.)
Finally, he stated, ‘That’s what [is] infuriating here, and in a state of anger he lashed out,
as a 15-year old might do. Maybe a 25-year old won’t do that, but that’s not the standard
that we’re talking about here. Maybe a 25-year-old pauses, thinks about it, whatever.
But you know what, this 15-year-old acted out of rage and went and killed a completely
innocent person.’” (Italics added.)
              “Each of these statements highlights an act, what a reasonable person might
‘do.’ The jury heard a version of this three times from the prosecutor. It is not difficult
to see it could have believed voluntary manslaughter required that a reasonable person
would have ‘done that’ or ‘could kill.’ And the ambiguous language of the instruction
would only have emphasized that understanding. None of either counsel’s arguments

                                              9
addressed the ambiguity or specifically told the jury it was not to consider whether a
reasonable person in defendant’s position would have killed. All of this taken together
would support a conclusion the jury understood it had to decide whether a reasonable
person would have committed the murder. This was error.
              “And based on all the circumstances of the case we cannot deem the error
to be harmless. The jury rejected the prosecution’s argument that the killing was
deliberate, premeditated, and for the benefit of a criminal street gang. In doing so it
presumably found there was sufficient provocation. Had the instruction unambiguously
stated the law, it is reasonably probable defendant would have obtained a more favorable
result. (People v. Breverman (1998) 19 Cal.4th 142, 178 [erroneous instruction on lesser
included offense analyzed under standard in People v. Watson (1956) 46 Cal.2d 818,
836.)
              “The determination the error was not harmless leads to the conclusion there
was ineffective assistance of counsel. In making such a determination we must find not
only that there was error but that but for counsel’s failure to raise the issue defendant
would have obtained a better result. (Strickland v. Washington (1984) 466 U.S. 668, 687
[104 S.Ct. 2052, 80 L.Ed.2 674].) Here, had this issue been briefed by defendant’s
lawyer in the appeal, based on our analysis in this opinion we would have remanded the
case for a new trial.”


2. Our analysis under the remand order.
              a. Beltran, Verdugo, and Butler
                             (1) Beltran
              In Beltran, the jury convicted defendant of second degree murder.
(Beltran, supra, 56 Cal.4th at p. 945.) Our Supreme Court analyzed the history of “heat
of passion,” starting with the common law and continuing through California statutory
law. The court disagreed with the Attorney General that “heat of passion” to reduce

                                             10
murder to manslaughter must be of the kind that would cause “an ordinary person of
average disposition [to] kill.” (Id. at p. 949.) Instead the court reiterated a rule
promulgated in a venerable case, People v. Logan (1917) 175 Cal. 45, “the fundamental
‘inquiry is whether or not the defendant’s reason was, at the time of his act, so disturbed
or obscured by some passion . . . to such an extent as would render ordinary men of
average disposition liable to act rashly or without due deliberation and reflection, and
from this passion rather than from judgment.’” (Beltran, supra, 56 Cal.4th at pp. 938-
939.) Thus, the focus of “heat of passion” is not on whether the person of average
disposition would kill, but rather whether such a person would be “liable to act rashly or
without due deliberation and reflection.” (Id. at p. 939.) And “[a]dopting a standard
requiring such provocation that the ordinary person of average disposition would be
moved to kill focuses on the wrong thing. The proper focus is placed on the defendant’s
state of mind, not on his particular act.” (Id. at p. 949.)
              The Beltran court also defined “heat of passion” as “a state of mind caused
by legally sufficient provocation that causes a person to act, not out of rational thought
but out of unconsidered reaction to the provocation. While some measure of thought is
required to form either an intent to kill or a conscious disregard for human life, a person
who acts without reflection in response to adequate provocation does not act with
malice.” (Beltran, supra, 56 Cal.4th at p. 942.)
              In Beltran the defense theory was that defendant had killed his girlfriend in
the heat of passion after she had told him she had aborted her pregnancy. Defendant had
testified the victim insulted him by calling him a “‘“fucking illegal,”’” a “‘“nobody,”’”
and that “she ‘“could get better than [him].”’” (Beltran, supra, 56 Cal.4th at p. 941.)
According to defendant, she then stated “‘“Fuck you. I was right. I knew you were
going to walk away someday. That’s why I killed your bastard. I got an abortion.”’”
(Ibid.) Defendant’s contention was that the news of the abortion “was so disturbing that



                                              11
defendant acted not from reflection but in reaction to the provocation.” (Id. at p. 943, fn.
omitted.)
              The court recognized that both parties and the trial court agreed that heat of
passion might apply even if defendant intended to kill the victim. (Id. at p. 943.) The
trial court’s instruction to the jury included the sentence “‘[i]n deciding whether the
provocation was sufficient, consider whether a person of average disposition would have
been provoked and how such a person would react in the same situation knowing the
same facts.’” (Id. at p. 944, italics omitted.) The court decided that this instruction was
not ambiguous. (Id. at p. 954.) But the closing argument, in the language of the court,
“muddied the waters.” (Ibid.) The prosecutor offered “examples that a reasonable
person would not kill if ‘[y]ou stub your toe’ or get ‘cut off in traffic.’” (Ibid.) This
suggested “that the jury should consider the ordinary person’s conduct and whether such
a person would kill” – not the correct standard. (Ibid.) The court noted that this “may
have confused the jury’s understanding of the court’s instructions.” (Id. at p. 955.) But
the court concluded that, reviewing any error for prejudice under People v. Watson
(1956) 46 Cal.2d 818, it was not reasonably probable that the jury was misled. In
reaching this conclusion, the court relied in part on an inquiry from the jury during
deliberations and the court’s response to that inquiry. (Beltran, supra, 56 Cal.4th at p.
956.)
              During its deliberations, the jury had sent a note inquiring “‘“[i]n deciding
whether the provocation was sufficient, consider whether a person of average disposition
would have been provoked and how such a person would react in the same situation
knowing the same facts.” Does this mean to commit the same crime (homicide) or can it
be other, less severe, rash acts [?]’” (Beltran, supra, 56 Cal.4th at p. 945.) The trial court
responded, “‘[t]he provocation involved must be such as to cause a person of average
disposition in the same situation and knowing the same facts to do an act rashly and



                                              12
under the influence of such intense emotion that his judgment or reasoning process was
obscured.’” (Ibid., fn. omitted.)


                             (2) Verdugo
              As directed by the Supreme Court, we also reviewed Verdugo. In Verdugo
defendant was convicted of two first degree murders. There was evidence that an attack
on defendant’s friend during a party provoked defendant into killing one of his victims
under the mistaken belief she was the attacker. And the trial court instructed the jury on
voluntary manslaughter as a lesser included offense to murder with respect to this
particular victim. (Verdugo, supra, 50 Cal.4th at p. 293.) Defendant contended the court
erred in not giving the same instruction in connection with the second victim.
              Citing People v. Avila (2009) 46 Cal.4th 680, the Supreme Court noted that
a trial court is only obligated to instruct on lesser included offenses if there is substantial
evidence supporting such an instruction. It cited the same case for the proposition that
“‘“[t]he 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.” [Citation.]’” (Verdugo, supra,50
Cal.4th at p. 293.) Then the court concluded that, as to the second victim, the instruction
was properly omitted because that victim neither caused the alleged heat of passion nor
was there a basis to believe defendant reasonably believed that victim to have engaged in
provocative conduct. (Id. at p. 294.) The court expressly rejected the view, expressed in
People v. Spurlin (1984) 156 Cal.App.3d 119, that a voluntary manslaughter instruction
may be appropriate when a victim “‘“was present aiding and abetting the person causing
the provocation.”’” (Verdugo, supra, 50 Cal.4th at p. 294.)




                                              13
                            (3) Butler
              In Butler defendant had been convicted of two counts each of murder,
robbery, and carjacking. During the penalty phase, the prosecution presented evidence
defendant, while awaiting trial, had participated in the murder of another jail inmate. He
contended the court erred in refusing to instruct the jury on a heat of passion
manslaughter in connection with this homicide. The Supreme Court concluded there was
insufficient evidence to support the instruction. The evidence showed that defendant and
his cohort had planned the assault resulting in the homicide in advance which
demonstrated they acted deliberately and upon reflection. Also, the claim that defendant
was provoked by the presence of a “shank” was rejected because there was no evidence
the victim had a role in producing the weapon and the court again noted “‘“[t]he
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.”’” (Butler, supra, 47 Cal.4th at pp. 868-869.)


3. Applying Beltran, Verdugo, and Butler to the present case
              We know that the victims here were not, in fact, the ones who attacked
defendant’s little brother. Thus, if the heat of passion manslaughter instruction could
only be given where the victim personally created the provocation, we could end our
analysis here. But the instruction would also be proper if there was substantial evidence
that defendant reasonably believed his victims committed the act. (Verdugo, supra, 50
Cal.4th at p. 293.) There was sufficient evidence to support such a finding. Defendant
testified “in my head I said I found who did it, and I shot into the car.” We need not here
decide whether this alleged mistaken belief was true; his testimony to this effect does
constitute substantial evidence.
              Defendant, who was 15 at the time, testified he received a phone call
indicating Oscar, his 14 year old brother with whom he was very close, was in a fight at

                                             14
the high school. Defendant ran to the scene. When he arrived, he saw his brother laying
on the sidewalk with blood all over his stomach. Police detained defendant and placed
him in a police car. He overheard a police officer stating his brother had been hurt by
“five Asian gang members from TRG or WDC.” When defendant’s mother arrived, he
was crying.
              After the ambulance took Oscar away, defendant and his mother went
directly to Western Medical Center, the hospital where Oscar had been taken. The nurses
at the hospital led defendant to believe his brother was dying. After he returned home, he
started to walk towards railroad tracks near his apartment, wanting to get into a fight with
“the people who did this to [his] brother.” One of his friends, who accompanied him,
handed him a gun. Then he saw a car with three Asian gang members. One of the
persons in the car identified himself and the other occupants as members of the WDC
gang. Defendant then stated “[i]n my head I said I found who did it, and I shot into the
car. He stated that he was confused and distraught.
              Thus it was appropriate for the court to instruct on heat of passion
manslaughter as a lesser included offense. And the court properly instructed the jury with
CALCRIM No. 570. The court added “‘[i]n deciding whether the provocation was
sufficient, consider whether a person of average disposition would have been provoked
and how such a person would react in the same situation knowing the same facts. . . .’”
(Beltran, supra, 56 Cal.4th at p. 954.) This statement does not directly contradict our
Supreme Court’s holding that “a standard requiring such provocation that the ordinary
person of average disposition would be moved to kill” would be error. (Id. at p. 949.)
              Nevertheless, the instruction was sufficiently unclear to permit the
prosecutor to imply that heat or passion manslaughter required a finding that the ordinary
person of average disposition would be moved to kill. In defining the manslaughter
standard, he argued “[i]t’s not the rage person standard. It’s not the reasonable gang
member standard either. It’s the reasonable person standard. What would a reasonable

                                            15
person do under the circumstances.” And again, “it is a person of average, ordinary,
prudence what they could do.” The inference is clear: would a reasonable person kill
under the circumstances? But that is the very standard our Supreme Court rejected in
Beltran.
               Here, as in Beltran, the prosecutor’s closing argument “muddied the
waters.” (Beltran, supra, 56 Cal.4th at p. 954.) The Beltran court recognized this was a
problem. But the court found two reasons why these muddied waters did not require a
reversal: (1) in response to a jury question during deliberations, the court, clearly
corrected the prosecutor’s misstatement of the law (id. at p. 955-956), and (2) “evidence
of provocation was both weak and contradicted” (id. at p. 956). Neither of these reasons
apply here. There was no request for clarification from the jury. And here the evidence
of provocation was strong and not contradicted. The jury’s rejection of the criminal
street gang charge and enhancement removes the major motive the prosecution urged for
the murder conviction. Thus strengthening support for the probability that defendant was
motivated by heat of passion.
               Neither Verdugo nor Butler affects our conclusion. The holdings in
Verdugo that the instruction on heat of passion manslaughter is not required unless the
evidence supports the giving of such an instruction and that the instruction is
inappropriate for an aider and abetter have no application in this case. Likewise, the
holding in Butler that a heat of passion manslaughter instruction is inappropriate where
the evidence does not support the giving of the instruction does not affect the outcome
here. We also noted that defendant’s trial lawyer did not object to the misleading
argument of the prosecutor. We may attribute this to inadequate representation or
uncertainty created by the jury instruction or uncertainty in the law before the Supreme
Court decided Beltran. In any event, under the circumstances of this case it would not be
appropriate to treat the failure to object as a forfeiture of the issue.



                                               16
                                   DISPOSITION


            The petition is granted. The case is remanded to the trial court for a new
trial.


                                               RYLAARSDAM, J.

WE CONCUR:



O’LEARY, P. J.



MOORE, J.




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