Filed 7/20/15 P. v. Johnson CA2/3
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE



THE PEOPLE,                                                              B254407

         Plaintiff and Respondent,                                       (Los Angeles County
                                                                         Super. Ct. No. NA093290)
         v.

ERICA JOHNSON,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Mark C. Kim, Judge. Affirmed.
         James M. Crawford, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Susan Sullivan Pithey and Esther
P. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
                           _________________________
          Defendant and appellant Erica Johnson raises contentions of insufficient proof,
improper admission of evidence, and instructional error following her conviction of
premeditated attempted murder, with enhancements for personal firearm use and
infliction of great bodily injury. For the reasons discussed below, the judgment is
affirmed.
                                      BACKGROUND
          Viewed in accordance with the usual rules of appellate review (People v. Ochoa
(1993) 6 Cal.4th 1199, 1206), the evidence established the following.
          1. Prosecution evidence.
          On December 27, 2011, Mario Carr1 was living in Long Beach with his sister
Jessica and her fiancé Terrill Coates. About 8:00 p.m. that evening, Mario left the
apartment to walk the dogs. He told Coates that after walking the dogs he was going to
meet defendant Johnson, whom he had known for about six months. Mario testified that,
although Johnson had expressed a romantic interest in him, he thought of her only as a
friend.
          Mario testified Johnson had asked him to meet her at an alley near her Long Beach
apartment. When Mario arrived he saw that Johnson was accompanied by a man he
knew as Bam, who was Johnson’s friend. Both Johnson and Bam had guns. A fight
broke out between Mario and Bam. During this fight, Johnson shot Mario in the back of
the head. Mario sustained significant brain injury and he was in a coma for a number of
months. He suffered permanent disabilities in cognition, speech and mobility, and is now
confined to a wheelchair. His language abilities are greatly diminished and his testimony
consisted of a combination of halting speech and tapping out words on a message board.
          Mario testified Johnson shot him “because of drugs.” He also testified that he did
not know what the fight with Bam was about. Johnson was standing behind Mario while
he and Bam were fighting, and Mario was on top of Bam when Johnson shot him.


1
       For purposes of clarity, we will henceforth refer to Mario Carr and his sister,
Jessica Carr, by their first names and mean no disrespect.
                                               2
       Mario testified this was not the first time he saw Johnson with a gun. She pointed
a gun at him less than a month before the shooting. On that occasion, while pointing the
gun at Mario, Johnson threatened him by saying “words to the effect, ‘If you ever leave
me[.]’ ”
       Dr. Serina Hoover, a clinical neuropsychologist, treated Mario for several months
in mid-2012. She testified the injury to the cerebellum and the right temporal lobe of
Mario’s brain had affected his ability to speak and coordinate his movements, as well as
his visual and spatial skills. There was, however, no injury to Mario’s left temporal lobe
which affects memory.
       Mario’s mother, Lashone Haywood, testified that when she visited Mario in the
hospital he informed her, by shaking his head in response to her questions, that he had
been shot by a woman, not a man. Haywood then contacted Detective Patrick Lyon
because she remembered Mario having told her, several weeks before the shooting, that
Johnson had threatened him with a gun: “[Mario] told me that he was sitting in the car
with his friend. [Johnson] came in daylight, with a gun pointed at him [and] . . . said if
you ever leave me, dancing [sic], that’s what he told me.”
       Mario’s sister Jessica testified that after the shooting she received several texts and
phone calls from Johnson, whom she did not consider a friend. Johnson told Jessica “that
she didn’t do it” and “that she loved Mario.” Detective Donald Goodman testified
Jessica told him that a few weeks before the shooting Johnson threatened to shoot Mario.
Goodman testified Jessica said “that Mario went to [Johnson’s] apartment . . . and [she]
produced a handgun and threatened to shoot him with it. And then [Jessica] kind of
toned it down. Said it could have been – I think Mario said it was kind of a joke, he
really wasn’t serious.”2
       When Detective Goodman interviewed Johnson, she said that she had been alone
at home the entire day and night of the shooting. Around the time of the shooting, she

2
       It is unclear from the record if there were two different prior occasions on which
Johnson threatened Mario with a gun, or whether both of these stories were meant to
describe the same event.
                                              3
was taking a shower when she heard some noises that she thought were fireworks. When
Goodman and his partner showed Johnson pictures of Mario, Johnson claimed that she
did not know who he was. After further questioning, however, Johnson admitted
knowing him. She said she lied about not recognizing Mario’s photographs because she
was scared of the detectives being in her apartment and she did not want to get involved.
Johnson then denied that Mario had ever been inside her apartment, although she
subsequently changed her story and said he had been there on two occasions. Asked if
she could think of anyone who might have been with Mario or could have shot him,
Johnson mentioned a woman who used methamphetamine, “some lesbians that she had
seen in the alley,” and a woman named Quonesha who was Mario’s girlfriend or ex-
girlfriend.
       By mid-February, Detective Goodman had been contacted by medical personnel
who advised him that Mario would likely survive his injuries and be able to communicate
in the future. The investigation was transferred to Detective Patrick Lyon in March, and
Goodman informed Lyon of Johnson’s suspected role in the shooting. Lyon met with
Mario in June 2012 to ask him about the shooting. When Lyon mentioned Johnson’s
name, Mario reacted very forcefully: “As soon as I mentioned if Erica Johnson shot him,
he began to shake. His body began to shake. And he began to sweat profusely. He
really shook his head in the affirmative, like really fast up and down. It was to the point
where my partner . . . even made a comment, like, are you okay? [¶] At that point we
had to stop the interview because it looked like he was so upset.”
       2. Defense evidence.
       Neurologist Arthur Kowell reviewed Mario’s medical records, which
demonstrated Mario sustained severe brain injury in the shooting because bullet
fragments had damaged his brain stem. Dr. Kowell testified there was an injury to
Mario’s right temporal region whose “functions . . . involve memory, particularly visual
memory.” This “can result in [the] patient not being able to see parts of things in the
visual field,” which affects “[w]hat one sees and then the abilities [sic] to visually
remember.”

                                              4
       3. Trial outcome.
       Johnson was convicted of premeditated attempted murder, with enhancements for
personal firearm use and infliction of great bodily injury. (Pen. Code, §§ 664, 187,
12022.53, 12022.7).3 She was sentenced to state prison for a term of life, plus 25 years to
life. This appeal followed.
                                     CONTENTIONS
       Johnson contends: (1) there was insufficient evidence to support the jury finding
that the attempted murder had been premeditated and deliberate; (2) the trial court erred
in admitting evidence of Johnson’s prior gun threat to Mario; and (3) the trial court erred
in not instructing the jury on attempted voluntary manslaughter as a lesser included
offense.
                                       DISCUSSION
       1. There was sufficient evidence of premeditation and deliberation.
       Johnson contends there was insufficient evidence to sustain the premeditation and
deliberation element of premeditated attempted murder. There is no merit to this claim.
              a. Legal principles.
       “In assessing a claim of insufficiency of evidence, the reviewing court’s task is to
review the whole record in the light most favorable to the judgment to determine whether
it discloses substantial evidence – that is, evidence that is reasonable, credible, and of
solid value – such that a reasonable trier of fact could find the defendant guilty beyond a
reasonable doubt. [Citation.] The standard of review is the same in cases in which the
prosecution relies mainly on circumstantial evidence. [Citation.] ‘ “Although it is the
duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible
of two interpretations, one of which suggests guilt and the other innocence [citations], it
is the jury, not the appellate court[,] which must be convinced of the defendant’s guilt
beyond a reasonable doubt. ‘ “If the circumstances reasonably justify the trier of fact’s
findings, the opinion of the reviewing court that the circumstances might also reasonably

3
       All further statutory references are to the Penal Code unless otherwise specified.

                                              5
be reconciled with a contrary finding does not warrant a reversal of the judgment.” ’
[Citations.]” ’ [Citation.]” (People v. Rodriguez (1999) 20 Cal.4th 1, 11.)
       “Although we must ensure the evidence is reasonable, credible, and of solid value,
nonetheless it is the exclusive province of the trial judge or jury to determine the
credibility of a witness and the truth or falsity of the facts on which that determination
depends. [Citation.] Thus, if the verdict is supported by substantial evidence, we must
accord due deference to the trier of fact and not substitute our evaluation of a witness’s
credibility for that of the fact finder. [Citations.]” (People v. Jones (1990) 51 Cal.3d
294, 314.)
       People v. Anderson (1968) 70 Cal.2d 15, 26-27, a murder case, discussed the
following types of premeditation and deliberation evidence.4 “The type of evidence
which this court has found sufficient to sustain a finding of premeditation and
deliberation falls into three basic categories: (1) facts about how and what defendant did
prior to the actual killing which show that the defendant was engaged in activity directed
toward, and explicable as intended to result in, the killing – what may be characterized as
‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with
the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which
inference of motive, together with facts of type (1) or (3), would in turn support an
inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought
and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily
executed’ [citation]; (3) facts about the nature of the killing from which the jury could
infer that the manner of killing was so particular and exacting that the defendant must
have intentionally killed according to a ‘preconceived design’ to take his victim’s life in
a particular way for a ‘reason’ which the jury can reasonably infer from facts of type
(1) or (2). [¶] Analysis of the cases will show that this court sustains verdicts of first

4
        “We do not distinguish between attempted murder and completed first degree
murder for purposes of determining whether there is sufficient evidence of premeditation
and deliberation. [Citation.]” (People v. Herrera (1999) 70 Cal.App.4th 1456, 1462,
fn. 8, disapproved on other grounds in People v. Mesa (2012) 54 Cal.4th 191, 199.)

                                              6
degree murder typically when there is evidence of all three types and otherwise requires
at least extremely strong evidence of (1) or evidence of (2) in conjunction with
either (1) or (3).”
       The Anderson factors do not establish normative rules, but instead provide
guidelines for a reviewing court’s analysis. (People v. Sanchez (1995) 12 Cal.4th 1, 32,
disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Thus, the Anderson factors are not a sine qua non to finding deliberation and
premeditation, nor are they exclusive. (People v. Sanchez, at p. 32; People v. Davis
(1995) 10 Cal.4th 463, 511 [Anderson factors are descriptive, not normative]; People v.
Raley (1992) 2 Cal.4th 870, 886 [when evidence of all three Anderson factors is not
present, appellate courts look for either very strong evidence of planning, or some
evidence of motive in conjunction with planning or a deliberate manner of killing].)
               b. Discussion.
       There was evidence of planning activity because Mario testified Johnson asked
him to meet her in the alley where, it turned out, she and her friend Bam were waiting
with guns. Bringing a gun to the meeting demonstrated that Johnson was prepared to use
deadly force. (See, e.g., People v. Miranda (1987) 44 Cal.3d 57, 87, disapproved on
other grounds by People v. Marshall (1990) 50 Cal.3d 907 [“that defendant brought his
loaded gun into the store and shortly thereafter used it to kill an unarmed victim
reasonably suggests that defendant considered the possibility of murder in advance”];
People v. Alcala (1984) 36 Cal.3d 604, 626, superseded by statute on other grounds as
stated in People v. Falsetta (1999) 21 Cal.4th 903, 911 [“when one . . . brings along a
deadly weapon which he subsequently employs, it is reasonable to infer that he
considered the possibility of homicide from the outset”].)
       There was also strong motive evidence because just a few weeks earlier Johnson
threatened to shoot Mario if he left her. There was also some evidence that a dispute over
drugs was involved. Whether Johnson shot Mario because of a frustrated romantic
interest in him or a drug deal gone bad (or some combination of the two), this evidence
demonstrated Johnson had a reason for wanting to kill Mario.

                                             7
       The manner of killing also tended to show premeditation and deliberation because
Mario had been shot once in the back of the head, which is consistent with a calmly-
executed killing. (See People v. Bolin (1998) 18 Cal.4th 297, 332 [“While defendant
fired some shots at Mincy as he was attempting to flee, at least one shot entered his body
as he lay in a fetal position. This forensic evidence indicates defendant did not want
merely to wound either victim; he wanted to make certain they died.”]; People v.
Mayfield (1997) 14 Cal.4th 668, 768, disapproved on other grounds in People v. Scott
(2015) 61 Cal.4th 363, 390, fn. 2 [“firing of the gun at [the victim’s] face is a manner of
killing that was entirely consistent with a preconceived design to take his victim’s life”].)
       Johnson argues “the shooting could not have been willful, deliberate and
premeditated. It was spur of the moment and only in response to aggressive actions
between Mario and Bam.” (Italics added.) But the fact Mario and Bam were fighting
with each other at the moment Johnson pulled the trigger does not negate the fact
Johnson had lured Mario to the alley where she and her friend were waiting with guns.
The inference that Johnson’s initial plan was to kill Mario is no more speculative than the
inference Johnson shot Mario in a panic because she feared for Bam’s safety. (See
People v. Rodriguez, supra, 20 Cal.4th at p. 12 [evidence is sufficient which relies on
inference that is “no more inherently speculative” than counter-inference].) Johnson’s
post-shooting conduct – which included denying to Detective Goodman that she even
knew Mario or that he had ever been to her apartment – demonstrated inculpatory
consciousness of guilt. And even if the jury found Johnson had not gone to the alley
planning to kill Mario, a reasonable jury could have concluded that she made a conscious
decision to do so while Mario was fighting with Bam. (See People v. Koontz (2002)
27 Cal.4th 1041, 1080 [“ ‘The process of premeditation and deliberation does not require
any extended period of time. “The true test is not the duration of time as much as it is the
extent of the reflection. Thoughts may follow each other with great rapidity and cold,
calculated judgment may be arrived at quickly. . . . ” [Citations.]’ [Citation.]”].)
       Because the evidence supported an inference that Mario’s shooting “ ‘was the
result of preexisting reflection and weighing of considerations rather than mere

                                              8
unconsidered or rash impulse,’ ” there was sufficient evidence of premeditation and
deliberation. (People v. Cole (2004) 33 Cal.4th 1158, 1224.)
       2. Evidence of the prior gun threat was properly admitted.
       Johnson contends the trial court improperly admitted (1) Mario’s testimony
regarding an earlier incident in which she threatened him with a gun and (2) evidence
that, prior to the shooting in the alley, Mario had reported this gun threat to his mother
and sister. We disagree.
              a. Background.
       Mario testified that, a few weeks before the shooting, Johnson threatened him with
a gun and said she would kill him if he ever left her. There was no defense objection to
this testimony.
       The defense did object when the prosecution said it intended to elicit evidence that
Mario told his mother and sister about this threat prior to the shooting. However, the trial
court overruled this objection, pointing out that on cross-examination defense counsel
questioned the reliability of Mario’s testimony that it was Johnson who shot him and,
therefore, that the proposed evidence fell within the hearsay exception for prior consistent
statements. Thereafter, the prosecution put on evidence that – prior to the shooting in the
alley – Mario told his mother and his sister that Johnson had threatened him with a gun.
       On appeal, Johnson argues this evidence should not have been admitted because
“[t]he prior gun incident was inadmissible propensity evidence” under Evidence Code
section 1101, which “does not allow for admission of such evidence to prove a prior
consistent statement.” In addition, Johnson argues the evidence should not have been
admitted in any event because “[t]here was no issue over whether Johnson acted
intentionally or not when Mario was shot. Rather, the question was whether Johnson was
. . . present when Mario was shot.”




                                              9
                b. Discussion.
       The trial court properly admitted this evidence under the hearsay exception for
prior consistent statements. Evidence Code section 1236 provides: “Evidence of a
statement previously made by a witness is not made inadmissible by the hearsay rule if
the statement is consistent with his testimony at the hearing and is offered in compliance
with Section 791.” Evidence Code section 791, subdivision (b), provides: “Evidence of
a statement previously made by a witness that is consistent with his testimony at the
hearing is inadmissible to support his credibility unless it is offered after: [¶] . . . [¶]
(b) An express or implied charge has been made that his testimony at the hearing is
recently fabricated or is influenced by bias or other improper motive, and the statement
was made before the bias, motive for fabrication, or other improper motive is alleged to
have arisen.”
       On cross-examination, the defense aggressively attacked the reliability of Mario’s
testimony. Defense counsel questioned Mario’s ability to accurately recall events that
occurred before the shooting, i.e., before he spent months in a coma. Defense counsel
suggested Mario had been getting ideas about what happened to him from his dreams.
Defense counsel complained to the jury that, due to Mario’s medical condition, it had not
been possible to subject his story to rigorous scrutiny.5 Johnson put on a defense expert
who testified, contrary to the prosecution’s expert, that the gunshot had struck a portion
of Mario’s brain involved with memory. This attack on Mario’s credibility, with its


5
       During closing argument, defense counsel complained: “See, that’s the problem
with Mario Carr’s testimony. Everything, the answer is told to him. Everything is
leading. Answers already told to him. He can only respond yes or no. It’s not fair.”
Defense counsel also said, “Mario even says I remember these things from dreams.
That’s what he said. He doesn’t admit that now but he admitted it in a previous
courtroom when he promised to tell the truth.” During cross-examination, defense
counsel asked Mario if he had once said to a deputy district attorney, “Yeah, my memory
[sic] were based from dreams.” Although Mario denied it, defense counsel then read
from the preliminary hearing transcript, in which Mario had answered “yes” to the
question, “Is it in your dreams that you remember certain things?” and “yes” to the
question “And is it . . . in your dream that you remember about this fight?”

                                               10
implied charge of recent fabrication, allowed the prosecution to admit the evidence of
Mario’s prior statements to his mother and sister. As our Supreme Court recently held, a
“broad, implicit charge of fabrication allow[s] the prosecutor to admit [a witness’s] prior
statements that were consistent with his . . . testimony. (People v. Collins (2010)
49 Cal.4th 175, 216 . . . [prior consistent statements admissible to rebut implied charge
that witness’s testimony was based on information in police report and coaching by
others rather than on own recollection]; see People v. Brents (2012) 53 Cal.4th 599, 616
. . . [broad charge that witness’s entire testimony was unreliable warranted admission of
prior consistent statement to rehabilitate witness].)” (People v. Kopatz (2015) 61 Cal.4th
62, 86.)
       Contrary to Johnson’s argument, the evidence that Mario told his mother and sister
about the gun threat prior to the shooting in the alley did not violate Evidence Code
section 1101, subdivision (a), which provides that “evidence of a person’s character or a
trait of his or her character (whether in the form of an opinion, evidence of reputation, or
evidence of specific instances of his or her conduct) is inadmissible when offered to
prove his or her conduct on a specified occasion” because it was not introduced to prove
Johnson’s conduct on the specified occasion but to rebut the attack on Mario’s credibility.
(See People v. Abel (2012) 53 Cal.4th 891, 928 [evidence of guns found in defendant’s
car was properly admitted to corroborate other evidence defendant had been seen with
similar weapons because Evidence Code section 1101, subdivision (c), “expressly
allows” such evidence “on the issue of a witness’s credibility”].)
       Moreover, Mario’s own testimony about the prior gun threat was admissible under
Evidence Code section 1101, subdivision (b), to demonstrate Johnson’s intent and
motive. “Evidence of prior criminal acts is admissible ‘when relevant to prove some fact
(such as motive, opportunity, intent, preparation, plan, knowledge . . . ),’ but not to prove
the defendant carried out the charged crimes in conformity with a character trait. (Evid.
Code, § 1101.)” (People v. Lewis (2001) 25 Cal.4th 610, 636-637.) By pleading not
guilty, Johnson placed at issue the premeditation and deliberation elements of
premeditated attempted murder. “Defendant’s not guilty plea put in issue all of the

                                             11
elements of the offenses.” (People v. Steele (2002) 27 Cal.4th 1230, 1243; see, e.g.,
People v. Jones (2011) 51 Cal.4th 346, 372 [“Defendant argues that only identity was
actually disputed at trial, and he did not dispute the perpetrator’s intent to rob . . . . Even
if this is so, it is not dispositive. ‘[T]he prosecution’s burden to prove every element of
the crime is not relieved by a defendant’s tactical decision not to contest an essential
element of the offense.’ ”].)
       Threatening Mario with a gun a few weeks before she shot him in the back of the
head tends to demonstrate that Johnson had a motive to kill him (and therefore a reason to
lure him to the alley), and also that Johnson’s intention when she pulled the trigger had
been to kill Mario rather than merely trying to stop the fight between him and Bam. “A
defendant’s threat against the victim . . . is relevant to prove intent in a prosecution for
murder. [Citation.]” (People v. Rodriguez (1986) 42 Cal.3d 730, 757; see People v. Cruz
(2008) 44 Cal.4th 636, 671 [“The prior threat to kill [one deputy sheriff] by shooting him
in the back of the head was ‘manifestly admissible to show defendant’s state of mind’ at
the time he fatally shot [another deputy sheriff] in the back of the head.”]; People v.
Goldbach (1972) 27 Cal.App.3d 563, 570 [trial court properly admitted evidence of
defendant’s earlier threats against the victims because “the evidence of the threats
established premeditation and deliberation, elements of the crime of first degree murder
rather than a predisposition to commit the crime”].)
       Hence, the trial court did not abuse its discretion under Evidence Code
section 1101 by admitting Mario’s testimony about Johnson’s prior act of threatening him
with a gun. Nor did the trial court abuse its discretion by subsequently admitting
evidence that Mario had mentioned this gun threat to his sister and mother.
       3. Claim regarding failure to instruct on lesser included offenses was waived.
       Johnson contends the trial court erred by failing to instruct the jury on attempted
voluntary manslaughter as a lesser included offense, despite having specifically asked the
court not to give this instruction. Because any error was invited, this contention was
waived. Even if the contention had not been waived, it is meritless.


                                              12
              a. Background.
       Just before the jury was brought into the courtroom for the reading of the jury
instructions, the following colloquy occurred:
       “[The Court]: We have all the jury instructions we went over yesterday. One
question mark is whether or not Mr. Ma, on behalf of your client, you would like to
request any lesser included instructions?
       “Mr. Ma: I did consider that, Your Honor, and at this point strategically I am not
asking [for] the attempted voluntary manslaughter instructions.
       “The Court: You agree, Miss Johnson?
       “The Defendant: What does that mean?
       “The Court: You want to explain to her?
       “(Pause.)
       “The Defendant: Yes.
       “The Court: Did you speak to your attorney about the lesser included instructions
that could be instructed by the court?
       “The Defendant: Yes.
       “The Court: Do you agree to that?
       “The Defendant: Yes.”
              b. This claim is waived under the invited error doctrine.
       “The trial court has a sua sponte duty to instruct on lesser included offenses when
the evidence raises a question as to whether all of the elements of the charged offense
were present and there is evidence that would justify a conviction of such a lesser
offense. [Citation.]” (People v. Cooper (1991) 53 Cal.3d 771, 827.) “On appeal, we
review independently the question whether the trial court improperly failed to instruct on
a lesser included offense. [Citation.]” (People v. Souza (2012) 54 Cal.4th 90, 113.)
       However, “[d]espite the circumstance that it is the court that is vested with
authority to determine whether to instruct on a lesser included offense, the doctrine of
invited error still applies if the court accedes to a defense attorney’s tactical decision to
request that lesser included offense instructions not be given. Such a tactical request

                                              13
presents a bar to consideration of the issue on appeal. [Citations.]” (People v. Prince
(2007) 40 Cal.4th 1179, 1265; see also People v. Cooper, supra, 53 Cal.3d at p. 827
[error is invited if conscious tactical choice was made].)
       “[T]he record must show only that counsel made a conscious, deliberate tactical
choice between having the instruction and not having it. If counsel was ignorant of the
choice, or mistakenly believed the court was not giving it to counsel, invited error will
not be found. If, however, the record shows this conscious choice, it need not
additionally show counsel correctly understood all the legal implications of the tactical
choice. Error is invited if counsel made a conscious tactical choice. A claim that the
tactical choice was uninformed or otherwise incompetent must, like any such claim, be
treated as one of ineffective assistance of counsel.” (People v. Cooper, supra, 53 Cal.3d
at p. 831.)
       Here, the record demonstrates that defense counsel made a conscious and
deliberate tactical choice not to have the trial court give an attempted voluntary
manslaughter instruction as a lesser included offense. Defense counsel told the trial court
that as a matter of strategy he did not want the jury instructed on voluntary manslaughter.
At the trial court’s direction, defense counsel conferred with Johnson in an off-the-record
discussion, apparently explained the issue to her, and Johnson then said she agreed with
this strategy. The defense, as manifested by defense counsel’s closing argument to the
jury, was that Johnson did not shoot Mario, that she was not even in the alley that night,
and that she had committed no crime.6 This is the classic situation in which a defendant
asks that lesser included offense instructions not be given in order to force the jury to
make an “all-or-nothing” decision.7


6
       During defense closing argument: “Of course there was an attempted murder. [¶]
But that’s not the question. The question is did the People prove this case beyond a
reasonable doubt. Give you enough evidence that Miss Johnson did this.”
7
      See, e.g., People v. Matian (1995) 35 Cal.App.4th 480, 484: “At trial, defense
counsel expressly, on the record, and with appellant’s concurrence, objected, for tactical
reasons, to any instructions on lesser offenses to the felony false imprisonment charge.
                                             14
       Because the record demonstrates that any error by the trial court in failing to
instruct on attempted voluntary manslaughter was invited by the defense, Johnson has
waived the issue on appeal.
               c. A jury instruction on attempted voluntary manslaughter was
unwarranted.
       Even if Johnson did not waive this issue by virtue of the invited error doctrine, we
would conclude the trial court did not err by failing to instruct the jury on attempted
voluntary manslaughter based on either an imperfect self-defense theory or a heat-of-
passion theory.
       “Under the doctrine of imperfect self-defense, when the trier of fact finds that a
defendant killed another person because the defendant actually, but unreasonably,
believed he was in imminent danger of death or great bodily injury, the defendant is
deemed to have acted without malice and thus can be convicted of no crime greater than
voluntary manslaughter.” (In re Christian S. (1994) 7 Cal.4th 768, 771.) If the jury
rejected Johnson’s alibi defense, the only evidence regarding what happened in the alley
came from Mario, who testified that, while he was fighting with Bam, Johnson shot him
in the back of the head. Hence, there was no direct evidence that Johnson actually
believed either she or Bam was in imminent danger. Although circumstantial evidence
can prove a defendant’s state of mind, Johnson merely points to the fact that Bam and
Mario “began to violently exchange punches.” Johnson’s implicit assertion that any
unarmed fist fight must give rise to an actual belief in the need for lethal self-defense is
unsupported by any pertinent authority or reasoned argument. The fact Mario and Bam
were fighting, without more, did not provide substantial evidence that Johnson believed
she or Bam was in imminent peril.
       “An intentional, unlawful homicide is ‘upon a sudden quarrel or heat of passion’
(§ 192(a)), and is thus voluntary manslaughter [citation], if the killer’s reason was


The trial court did not instruct on misdemeanor false imprisonment. Thus, the jury was
given the classic ‘all or nothing’ choice of acquittal or conviction of the greater charge.”

                                              15
actually obscured as the result of a strong passion aroused by a ‘provocation’ sufficient to
cause an ‘ “ordinary [person] of average disposition . . . to act rashly or without due
deliberation and reflection, and from this passion rather than from judgment.” ’
[Citations.]” (People v. Breverman (1998) 19 Cal.4th 142, 163.) There was no evidence
that, when she shot Mario, Johnson’s reason had been clouded by a passionate emotion.
Nor was there any evidence Mario had engaged in sufficiently provocative conduct to
warrant the instruction. “The test of adequate provocation is an objective one . . . . The
provocation must be such that an average, sober person would be so inflamed that he or
she would lose reason and judgment. Adequate provocation and heat of passion must be
affirmatively demonstrated. [Citations.]” (People v. Lee (1999) 20 Cal.4th 47, 60.)
“[P]redictable conduct by a resisting victim would [not] constitute the kind of
provocation sufficient to reduce a murder charge to voluntary manslaughter.” (People v.
Jackson (1980) 28 Cal.3d 264, 306, disapproved on other grounds in People v. Cromer
(2001) 24 Cal.4th 889, 901, fn. 3.) Mario testified that, before Johnson shot him, Bam
was trying to draw his gun and Mario was trying to prevent him from doing so.
       The trial court did not err by failing to instruct the jury on attempted voluntary
manslaughter.




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                                    DISPOSITION
      The judgment is affirmed.


      NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                EDMON, P. J.


We concur:




             KITCHING, J.




             EGERTON, J.*




*
        Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.

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