Filed 6/10/15 P. v. Williamson CA3
                                           NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
                                      THIRD APPELLATE DISTRICT
                                                        (Shasta)
                                                            ----




THE PEOPLE,

                   Plaintiff and Respondent,                                                 C073738

         v.                                                                        (Super. Ct. No. 10F209)

VANESSA KAY WILLIAMSON,

                   Defendant and Appellant.

         Defendant Vanessa Kay Williamson, who was involved romantically with
multiple men, convinced one of her suitors, Robert James, to join her in robbing another
of her suitors, Daniel Khelawan, who was in possession of prescription pain medication
and a significant amount of money. After James initially declined to participate in the
robbery, defendant told James that Khelawan had threatened to kill her daughter, he was
armed, and they should rob him at gunpoint so he would leave town rather than follow
through on his threat. Defendant then drove James, who was now armed with a semi-



                                                             1
automatic handgun and seated in the passenger seat of defendant’s car, in search of
Khelawan. When Khelawan drove past her car, defendant followed in pursuit. A brief
car chase resulted in Khelawan’s car spinning out of control in an intersection, defendant
maneuvering her car to place James in front of Khelawan, and James opening fire when
he saw “something” in Khelawan’s hand. Khelawan righted his car and drove a short
distance before veering off of the road. One of the bullets penetrated his aorta. He likely
died before his car came to a stop.
       Defendant was convicted by jury of first degree murder (Pen. Code, § 187,
subd. (a))1, assault with a semi-automatic firearm (§ 245, subd. (b)), and shooting at an
occupied vehicle (§ 246). With respect to the murder, the jury found true a special
circumstance allegation that the murder was intentional and perpetrated by means of
discharging a firearm from a motor vehicle (§ 190.2, subd. (a)(21)); the jury also found
true an enhancement allegation that one of the principals in the murder was armed with a
firearm (§ 12022, subd. (a)(1)).2 The trial court sentenced defendant to state prison to
serve an indeterminate term of life without the possibility of parole (LWOP), plus a
consecutive determinate term of ten years (upper term of nine years for the assault with a
semi-automatic firearm, plus one year for the firearm enhancement; sentence imposed for
shooting at an occupied vehicle was stayed pursuant to section 654).
       On appeal, defendant contends: (1) the trial court prejudicially erred and
violated her constitutional rights by instructing the jury with an argumentative and
misleading special instruction on aiding and abetting liability; (2) the trial court also
prejudicially erred and further violated her constitutional rights by denying her request


1      Undesignated statutory references are to the Penal Code.
2       Defendant’s convictions followed her second trial, the first resulting in a mistrial
after the jury failed to reach a verdict on any counts.


                                              2
to instruct the jury on voluntary manslaughter based on imperfect self-defense and
heat of passion; (3) the cumulative effect of the foregoing assertions of error requires
reversal; (4) the trial court erred by imposing a consecutive term on her conviction
for shooting at an occupied vehicle before staying execution of that sentence; and (5) the
abstract of judgment must be corrected to conform to the oral pronouncement of
judgment.
       We reject defendant’s assertions of instructional error. Because defendant did not
object to the special instruction now challenged on appeal, she has forfeited this claim of
error unless the error affected her substantial rights, i.e., resulted in a miscarriage of
justice. (People v. Anderson (2007) 152 Cal.App.4th 919, 927.) The special instruction
provided an accurate statement of the law and was neither misleading nor argumentative.
Thus, there was no error, much less a miscarriage of justice. With respect to the trial
court’s denial of defendant’s request for voluntary manslaughter instructions, we
conclude defendant was not entitled to the requested instructions. We also reject
defendant’s assertion cumulative prejudice requires reversal. Finally, the Attorney
General concedes defendant’s assertion of sentencing error and further concedes the
abstract of judgment must be corrected to conform to the oral pronouncement of
judgment. We accept the concessions, modify the judgment to impose the middle term of
five years on defendant’s conviction for shooting at an occupied vehicle, stayed pursuant
to section 654, and affirm the modified judgment. We further order correction of an error
in the abstract of judgment. As defendant points out, the abstract of judgment reflects
two one-year firearm enhancements, whereas only one such enhancement was imposed
by the trial court. The abstract of judgment shall be corrected accordingly.
                                            FACTS
       Defendant met Khelawan in October 2009 at a cannabis club in Sacramento. They
became friends and started a casual romantic relationship shortly thereafter. Khelawan


                                               3
worked as a driver, delivering prescription medications and medical supplies from a
warehouse in Sacramento to three medical facilities between Williams and Redding. At
some point, defendant started to accompany Khelawan on his route, sharing in the driving
responsibility and receiving money from him for doing so.
       At the end of November, defendant moved from Sacramento to Redding.
According to defendant, she made the move to be closer to her family and to “get away”
from Khelawan, who was pressuring her to move in with him in Sacramento. Around
this time, defendant started a romantic relationship with Kris Kingsley, whom she met
through a social networking Website prior to moving to Redding. While defendant
considered Kingsley to be her “boyfriend,” she also continued her relationship with
Khelawan, although she told her mother she “was just trying to make him happy so he
would give [her] money . . . .” Indeed, while defendant was dating Khelawan, he gave
her about $1,000, only $500 of which was payment for driving part of his route. He also
bought defendant clothes, paid for her to get her hair and nails done, bought her food,
cigarettes, and marijuana, and gave her daughter a video game system as a Christmas
present. Defendant’s relationship with Kingsley ended on New Year’s Eve, when
Kingsley saw a sexual text message she received from another man, Elliott Fitzgerald.
The same day, defendant reconnected with a former boyfriend, James, who would
ultimately―eight days later―shoot Khelawan to death.
       In the week leading up to Khelawan’s death, defendant and James saw each other
every day and spent nearly every night together at James’s father’s house, where James
was living. James “felt like [he] loved her.” Two or three days before the shooting,
defendant told James about Khelawan, saying she had been working for him as a “pill
courier,” but that would stop because Khelawan would not be delivering to Redding
anymore. She added Khelawan had changed his route to deliver to Redding when she
moved up there, and she “felt like he was stalking her.” James asked whether Khelawan


                                             4
was her boyfriend. Defendant answered that their relationship was “strictly
professional.”
       The day before the shooting, defendant and James again talked about Khelawan.
James asked defendant about the route she drove with him. Defendant responded they
“could rob him” and “take the medications.” James then asked what would be in the
delivery. Defendant answered there would be sealed packages containing prescription
medication either in Khelawan’s back seat or in the trunk of the car. She also said
Khelawan would be carrying about $1,500 in cash, and would have a gun in the car, so
they would need to be armed if they were going to rob him. James considered
defendant’s proposal, but declined, telling defendant Khelawan would “probably suspect
that it was her that did it” since “she knew where the route was.”
       On the day of the shooting, defendant and James drove to a pharmacy to pick up
defendant’s prescription for Norco, a combination of acetaminophen and hydrocodone,
an opioid pain medication. While defendant was prescribed the medication for a knee
injury, she did not take it, but instead sold the pills. James was addicted to prescription
pain medication. He primarily took OxyContin, a more powerful narcotic, but would
settle for Norco when he was unable to find his preferred medication. After picking up
the prescription, defendant gave James five pills to alleviate withdrawal symptoms he
was experiencing due to his being out of OxyContin. After running various errands
during the afternoon and early evening, including two stops to the motel where
defendant’s family lived, and taking occasional breaks to smoke marijuana, they returned
to James’s house where they poured themselves a drink. Throughout the day, defendant
was sending and receiving text messages on her cell phone. As the night progressed, she
was doing so “continuously.”
       Meanwhile, Khelawan was driving his route from Sacramento to Redding. He left
the warehouse in Sacramento shortly before 6:00 p.m. Earlier in the day, he and


                                              5
defendant exchanged a series of text messages concerning a text message Khelawan had
received two weeks before. Apparently, this previous text message was from a younger
woman and included a nude self-picture. Khelawan apologized for his “stupidity,” said
the nude picture was “the farthest it went,” and asked defendant to go with him back to
Sacramento that night. Defendant’s initial answer was, “No.” Shortly before 7:00 p.m.,
her answer turned into a “maybe.” By 7:40 p.m., she had returned to her original
position, and by 8:20 p.m., she told Khelawan to have sex with whomever he wanted
because she did not care. Khelawan responded he loved her and added, “don’t do this.”
Defendant replied she would be too busy receiving oral sex to accompany him to
Sacramento. Khelawan responded that was “fine,” but he wanted his money back. He
then sent a separate message clarifying he wanted the money he gave her to get her hair
and nails done, as well as the Christmas present he gave her daughter. This latter text
message read: “I want hair all nails ur lil 1 xmas gift.” By this point, Khelawan was at a
delivery stop in Red Bluff. The nurse who signed for the medications he delivered to this
facility testified he seemed “down in the dumps” and was “on his cell phone.” When she
asked him what was wrong, Khelawan said he was having “problems with his girlfriend”
and “was breaking up with her.”
       Back in Redding, after defendant and James had a drink in the kitchen, James
went into his bedroom and took five more pills, leaving defendant to her text messaging.
When defendant received the above-quoted text message, i.e., “I want hair all nails
ur lil 1 xmas gift,” she started screaming: “He’s going to kill my baby.” James went to
defendant to calm her down and asked what she meant. Defendant explained Khelawan
had sent her a text message saying he wanted her daughter’s hair and nails, which
James thought was “creepy.” Khelawan then sent additional text messages demanding
the money he had given defendant and saying he would be at the motel where her
family lived in 15 minutes. Defendant responded that she was not at the motel.


                                             6
Khelawan replied her family would be there, including her daughter. Defendant
showed this message to James, said she wanted to go to the motel to protect her
daughter, and told James to bring a gun. James asked whether she was sure, and then
grabbed a semi-automatic handgun, along with the clip and a handful of bullets, from
his father’s bedroom. As they were leaving the house, defendant also mentioned
Khelawan “wanted money back for things he had paid for,” but said she had earned
that money.
       Defendant and James took defendant’s car to the motel. James drove while
defendant loaded the bullets into the magazine. At James’s request, she placed the
magazine in the glove compartment, and placed the gun under the passenger seat. On the
way to the motel, Khelawan called defendant, who answered the phone and yelled:
“You’re not going to fuck with my family.” She also yelled: “We have a gun too.”
James could not hear Khelawan’s response to either of these statements. Defendant then
put the call on speaker. Khelawan was “cussing and yelling.” James then yelled into the
phone: “ ‘I’m going to kill you.’ ” At this point, the phone call ended. According to
defendant’s account of this phone call, provided on the witness stand during her first trial
and read into evidence during the second, in addition to yelling and cussing, Khelawan
“said that he was gonna kill [her] family and that he was gonna blow up the motel up
with -- blow it up with -- shoot the windows out.”
       Defendant and James continued to the motel, driving past a police station on
the way. James considered stopping there to inform the police about Khelawan’s
purported threat to kill defendant’s daughter, but explained: “It just seemed more
important to get down to the motel first.” When they arrived, defendant retrieved the
gun and clip, combined the two, and got out of the car with the gun in her hand, beneath
her shirt. James asked defendant what she was doing, took the gun, and placed it in his
waistband. Khelawan’s car was not in the motel parking lot. Nor had he stopped by


                                             7
defendant’s family’s motel room. Inside the room, James told defendant’s father
that “they should probably move to a different motel,” who responded: “We’re not
going anywhere.” James then lifted his shirt and said he had a “strap” on. Additional
text messages were exchanged between Khelawan and defendant. Defendant told
Khelawan she was “at the room” and asked where he was. Between repeated demands
for the money he had given defendant, and some vulgar insults, Khelawan responded
he was across the street.
       Defendant and James returned to the car and drove across the street. This time,
defendant drove while James sat in the passenger seat with the gun. Khelawan was not
there. Defendant told James she might know where Khelawan would be, based on the
location of his last delivery stop, and again proposed robbing him, saying they “could
rob him and scare him out of town at the same time.” James decided to go along with
the idea. He explained he thought he was “protecting her family and her daughter.”
Defendant then drove towards Khelawan’s last stop for the night, a skilled nursing
facility about two miles from the motel. They found Khelawan about a block from
the facility as he drove through an intersection. Defendant said: “That’s him. That’s
his car.” She then followed Khelawan around the block and pulled up beside his car, in
the oncoming lane of traffic. Both cars accelerated. At the next intersection, Khelawan’s
car spun out on the wet roadway, coming to a stop in the middle of the road, positioned
perpendicular to the path of travel. Defendant also stopped, positioning her car at
about a 45-degree angle to Khelawan’s car, placing James directly across from
Khelawan. As defendant’s car came to a stop, James saw “something” in Khelawan’s
hand and opened fire. He fired a total of five rounds in rapid succession. One of the
bullets struck Khelawan in the back, traveled through his chest cavity, and penetrated
his aorta. Despite massive internal bleeding, Khelawan managed to right his car




                                             8
and drive a short distance before veering off of the road and crashing into a neighboring
yard.
        Defendant and James did not follow through on their plan to rob Khelawan, but
instead drove past his car as it crashed into the yard and continued on to James’s house,
where they spent the night. Defendant and James were arrested the next day. While in
jail, defendant was overheard admitting she planned to rob Khelawan of pills and money.
She also said she “had the best night’s sleep of her life” the night he died.
                                        DISCUSSION
                                               I
                   Special Instruction on Aiding and Abetting Liability
        Defendant claims the trial court prejudicially erred and violated her constitutional
rights by instructing the jury with an argumentative and misleading special instruction on
aiding and abetting liability. Defendant did not object to this instruction at trial. “Failure
to object to instructional error forfeits the issue on appeal unless the error affects
defendant’s substantial rights. [Citations.] The question is whether the error resulted in a
miscarriage of justice under People v. Watson (1956) 46 Cal.2d 818, 299 P.2d 243.
[Citation.]” (People v. Anderson, supra, 152 Cal.App.4th at p. 927.) We conclude there
was no error, much less a miscarriage of justice.
                                              A.
                                   Additional Background
        Pursuant to a negotiated plea agreement, James pled guilty to voluntary
manslaughter, assault with a semi-automatic firearm, and attempted second-degree
robbery, with various firearm enhancements, and was sentenced to serve a stipulated
prison term of 32 years 6 months, conditioned upon his agreement to cooperate with law
enforcement and testify truthfully at all stages of any proceedings involving Khelawan’s
death. In accordance with this agreement, James provided damaging testimony against


                                               9
defendant at trial, much of which was corroborated by testimony from other witnesses
and forensic evidence.
       The prosecution’s theory was defendant was guilty of first-degree murder on
either a robbery-murder theory or a premeditation and deliberation theory, and her state
of mind was more culpable than that of James, despite the fact James pulled the trigger,
because defendant “fed a lot of lies and misinformation” to James, inducing him to kill
Khelawan.
       After the jury was instructed with standard aider and abettor instructions, the jury
was also instructed with the following special instruction: “An aider and abettor is
responsible for her own state of mind not the actual perpetrator’s state of mind. An aider
and abettor may be guilty of a greater homicide offense than the actual perpetrator when
the aider and abettor helped or induced the actual perpetrator to kill the victim and in
doing so the aider and abettor’s state of mind was more culpable than the actual
perpetrator’s state of mind based on the combined acts of both participants as well as the
aider and abettor’s state of mind. An aider and abettor may also be guilty of a lesser
homicide offense than the actual perpetrator when the aider and abettor’s state of mind
was less culpable than the actual perpetrator’s state of mind based on the combined acts
of both participants as well as the aider and abettor’s individual state of mind. The
People have the burden of proving beyond a reasonable doubt the defendant’s own
state of mind.” The italicized language was added to the instruction at defendant’s
request.
                                             B.
                                          Analysis
       We first note the challenged instruction is a correct statement of the law. In
People v. McCoy (2001) 25 Cal.4th 1111 (McCoy), our Supreme Court held: “[W]hen a
person, with the mental state necessary for an aider and abettor, helps or induces another


                                             10
to kill, that person’s guilt is determined by the combined acts of all the participants as
well as that person’s own mens rea. If that person’s mens rea is more culpable than
another’s, that person’s guilt may be greater even if the other might be deemed the actual
perpetrator.” (Id. at p. 1122.) For example, “‘[a]n accomplice may be convicted of first-
degree murder, even though the primary party is convicted of second-degree murder or of
voluntary manslaughter . . . if the secondary party, premeditatedly, soberly and calmly,
assists in a homicide, while the primary party kills unpremeditatedly, drunkenly, or in
provocation.’” (Id. at p. 1119.) Conversely, “an aider and abettor’s guilt may also be
less than the perpetrator’s, if the aider and abettor has a less culpable mental state.”
(People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164; see also People v. Nero
(2010) 181 Cal.App.4th 504, 507.)
       Nevertheless, defendant argues the instruction provided a misleading and
confusing definition of mens rea because the instruction first “directs the jury to consider
only the aider and abettor’s state of mind” and then “requires it to consider a combination
of factors,” i.e., the combined acts of both participants as well as the aider and abettor’s
state of mind. Defendant misreads the instruction. The instruction correctly informed the
jury an aider and abettor is responsible for her or his own state of mind, not that of the
direct perpetrator. An aider and abettor is, however, responsible for the actions of the
direct perpetrator. Accordingly, in determining an aider and abettor’s level of culpability,
the jury was correctly instructed to consider the combined acts of both participants as
well as the aider and abettor’s state of mind. (See McCoy, supra, 25 Cal.4th at p. 1120
[aider and abettor liability “premised on the combined acts of all the principals, but on the
aider and abettor’s own mens rea”].) The instruction was neither misleading nor
confusing.
       Defendant also argues the following italicized language was argumentative: “An
aider and abettor may be guilty of a greater homicide offense than the actual perpetrator


                                              11
when the aider and abettor helped or induced the actual perpetrator to kill the victim and
in doing so the aider and abettor’s state of mind was more culpable than the actual
perpetrator’s state of mind based on the combined acts of both participants as well as the
aider and abettor’s [individual] state of mind.”
       “An instruction is argumentative when it recites facts drawn from the evidence in
such a manner as to constitute argument to the jury in the guise of a statement of law.
[Citation.] ‘A jury instruction is [also] argumentative when it is “‘of such a character as
to invite the jury to draw inferences favorable to one of the parties from specified items
of evidence.’ [Citations.]”’” (People v. Campos (2007) 156 Cal.App.4th 1228, 1244,
quoting People v. Lewis (2001) 26 Cal.4th 334, 380.) Contrary to defendant’s argument
on appeal, the special instruction neither recited facts drawn from evidence nor invited
the jury to infer defendant “manipulated James into killing Khelawan.” Instead, it
correctly informed the jury an aider and abettor may be guilty of a greater homicide
offense than the actual perpetrator where the aider and abettor helped or caused the actual
perpetrator to commit the homicide, and did so with a more culpable mental state than
that of the actual perpetrator. Nowhere in the instruction is there a recitation of
manipulative acts engaged in by defendant or an invitation for the jury to conclude from
these acts that defendant manipulated James into killing Khelawan. The instruction is not
argumentative.
       We conclude the trial court did not err in providing the jury with the challenged
special instruction. There being no error, much less a miscarriage of justice, defendant’s
claim of instructional error is forfeited. (People v. Anderson, supra, 152 Cal.App.4th at
p. 927.) For the same reason, we also reject defendant’s alternative claim her trial
counsel provided constitutionally deficient assistance by failing to object to, and seek
correction of, the challenged instruction.




                                             12
                                             II
              Denial of Request for Voluntary Manslaughter Instructions
       Defendant also contends the trial court prejudicially erred and further violated her
constitutional rights by denying her request to instruct the jury on voluntary manslaughter
based on imperfect self-defense and heat of passion theories. She is mistaken.
       In a criminal case, the trial court “must instruct on lesser included offenses, even
in the absence of a request, whenever there is substantial evidence raising a question as to
whether all of the elements of the charged offense are present. [Citations.] ‘Substantial
evidence is evidence sufficient to “deserve consideration by the jury,” that is, evidence
that a reasonable jury could find persuasive.’ [Citation.]” (People v. Lewis (2001) 25
Cal.4th 610, 645; People v. Souza (2012) 54 Cal.4th 90, 114.) “On appeal, we review
independently whether the trial court erred in failing to instruct on a lesser included
offense.” (People v. Booker (2011) 51 Cal.4th 141, 181.)
       “Murder involves the unlawful killing of a human being with malice aforethought,
but a defendant who intentionally commits an unlawful killing without malice is guilty
only of voluntary manslaughter.” (People v. Blacksher (2011) 52 Cal.4th 769, 832;
§§ 187, subd. (a), 192.) “Generally, the intent to unlawfully kill constitutes malice.
[Citations.] ‘But a defendant who intentionally and unlawfully kills lacks malice . . . in
limited, explicitly defined circumstances: either when the defendant acts in a “sudden
quarrel or heat of passion” (§ 192, subd. (a)), or when the defendant kills in
“unreasonable self-defense”—the unreasonable but good faith belief in having to act in
self-defense [citations].’ [Citation.]” (People v. Breverman (1998) 19 Cal.4th 142, 153-
154.) “These mitigating circumstances reduce an intentional, unlawful killing from
murder to voluntary manslaughter ‘by negating the element of malice that otherwise
inheres in such a homicide [citation].’ [Citation.] Provocation has this effect because of
the words of section 192 itself, which specify that an unlawful killing that lacks malice


                                             13
because committed ‘upon a sudden quarrel or heat of passion’ is voluntary manslaughter.
[Citation.] Imperfect self-defense obviates malice because that most culpable of mental
states ‘cannot coexist’ with an actual belief that the lethal act was necessary to avoid
one’s own death or serious injury at the victim’s hand. [Citations.]” (People v. Rios
(2000) 23 Cal.4th 450, 461.)
       As we explain below, there was no substantial evidence raising a question as to
whether either mitigating circumstance existed in this case.
                                              A.
           Imperfect Self-Defense Instruction Not Supported by the Evidence
       A defendant may not invoke the doctrine of imperfect self-defense where she
or he, “through [her or] his own wrongful conduct (e.g., the initiation of a physical
assault or the commission of a felony), has created circumstances under which [her or]
his adversary’s attack or pursuit is legally justified.” (In re Christian S. (1994) 7
Cal.4th 768, 773, fn. 1.) Here, defendant set out in search of Khelawan with
James, who was armed and under the influence of several drugs, and who believed,
based solely on defendant’s word, Khelawan was armed and had threatened to kill her
daughter. Their intent was to rob Khelawan at gunpoint. When they found Khelawan
driving down the street, defendant followed in pursuit, resulting in a brief car chase,
Khelawan’s car spinning out of control, and James opening fire when he saw an unknown
object in Khelawan’s hand. There can be no doubt defendant’s wrongful conduct, i.e.,
an attempted armed robbery and misinformation provided to James, created the
circumstances she now claims mitigated the murder to voluntary manslaughter.
       Acknowledging the foregoing facts “mak[e] her appear to be the aggressor,”
defendant relies on People v. Vasquez (2006) 136 Cal.App.4th 1176 (Vasquez) in arguing
the jury could nevertheless have found the doctrine of imperfect self-defense to apply. In
that case, Vasquez invited his cousin Arechiga to join him and some of his friends in an


                                              14
alley. In the alley, Vasquez, who was confined to a wheelchair, accused Arechiga of
having raped Vasquez’s deceased younger brother. The accusation caused Arechiga to
lunge at Vasquez and begin to choke him, which in turn caused Vasquez to pull a gun and
shoot Arechiga. (Id. at pp. 1177-1178.) At Vasquez’s murder trial, the trial court
declined to give the jury an instruction on imperfect self-defense, concluding Vasquez
“created the need to defend himself by luring Arechiga to the alley to confront him.” (Id.
at p. 1179.) The Court of Appeal reversed, explaining: “Imperfect self-defense does not
apply if a defendant’s conduct creates circumstances where the victim is legally justified
in resorting to self-defense against the defendant. [Citation.] But the defense is available
when the victim’s use of force against the defendant is unlawful, even when the
defendant set in motion the chain of events that led the victim to attack the defendant.”
(Id. at pp. 1179-1180.) The court concluded that while Vasquez may have been “up to no
good,” an instruction on imperfect self-defense was nevertheless required because it was
Arechiga who “used unlawful force first.” (Id. at p. 1180.)
       Defendant argues, “the jury could well have concluded that even though [she]
might have set up the circumstances, neither she, nor James, engaged in any affirmative
act of lethal force directed at [Khelawan] until after it appeared [Khelawan] was armed
and prepared to fire at them. Thus, the jury could have concluded that neither [she], nor
James, had any intent to kill [Khelawan] and [defendant] stopped the vehicle to end the
encounter or avoid being hit by gunfire and/or James would have lowered the gun had be
realized [Khelawan] was not in possession of a firearm.” She further argues: “If the jury
believed that [she] had no intent to kill at the time, and her intent merely was to scare
[Khelawan], then [Khelawan’s] act of pulling something black out of his pocket and
pointing it in [her] and James’s direction gave the appearance of [Khelawan’s] intent to
use unlawful force first. Under these circumstances, [defendant] was entitled to assert the




                                             15
belief, albeit unreasonable, that she was in imminent peril and needed to resort to self-
defense . . . .”
         The question is not whether defendant intended to kill Khelawan when she chased
him down the street with an armed and intoxicated boyfriend in her car, or whether her
intent was simply to scare Khelawan into handing over the money and prescription
pills in his possession. The question is whether defendant’s criminal conduct, i.e., an
attempted armed robbery, created circumstances in which Khelawan would have been
legally justified in resorting to self-defense. The answer is yes. Moreover, unlike
Vasquez, Khelawan did not use any force in self-defense. He merely had “something”
in his hand when his car came to a stop in the intersection. Nor does the record support
defendant’s assertion Khelawan pulled this something out of his pocket and pointed
it at her car. James simply testified Khelawan had an object in his hand. Having been
told by defendant Khelawan was armed, we do not dispute a jury could have concluded
James believed, albeit unreasonably, the something in Khelawan’s hand was a gun, but
there is no evidence defendant so believed. As we have explained, the belief in the
need to use deadly force in self-defense negates the mental state of malice (People v.
Rios, supra, 23 Cal.4th at p. 461), and the jury was required to assess defendant’s mental
state separately from that of James. (People v. McCoy, supra, 25 Cal.4th at pp. 1119,
1122.)
         We conclude there is no substantial evidence, i.e., evidence a reasonable jury
could find persuasive, supporting instruction on voluntary manslaughter based on
imperfect self-defense.
                                              B.
                   Heat of Passion Instruction Not Supported by the Evidence
         The mitigating factor distinguishing the “heat of passion” form of voluntary
manslaughter from murder is provocation. (People v. Avila (2009) 46 Cal.4th 680, 705.)


                                              16
“The provocation which incites the defendant to homicidal conduct in the heat of passion
must be caused by the victim [citation], or be conduct reasonably believed by the
defendant to have been engaged in by the victim. [Citations.] The provocative conduct
by the victim may be physical or verbal, but the conduct must be sufficiently provocative
that it would cause an ordinary person of average disposition to act rashly or without due
deliberation and reflection. [Citations.] ‘Heat of passion arises when “at the time of the
killing, the reason of the accused was obscured or disturbed by passion to such an extent
as would cause the ordinarily reasonable person of average disposition to act rashly and
without deliberation and reflection, and from such passion rather than from judgment.”’
[Citation.]” (People v. Lee (1999) 20 Cal.4th 47, 59.)
       Here, there is no substantial evidence of provocation. The only evidence
Khelawan threatened defendant and her family came in the form of defendant’s self-
serving testimony in the prior trial, accompanied by her similarly self-serving out-of-
court statements to James while trying to convince him to join her in robbing Khelawan,
and to police after her arrest while trying to convince them that her actions were justified.
The same is true of evidence Khelawan was armed. Moreover, defendant’s statements
concerning Khelawan being armed are contradicted by the fact no gun was found in his
car following the murder. And her statements concerning Khelawan’s purported threat to
kill her daughter are contradicted by the actual text messages she received. In these text
messages, Khelawan demanded the money he had given to defendant and made some
vulgar comments about her and her mother, but no reasonable person would have
interpreted any of the text messages as a threat to kill defendant’s daughter, let alone
harvest her hair and nails afterwards. Defendant did testify in the prior trial that
Khelawan specifically threatened to kill her family and either blow up or shoot the
windows out of their motel room. James corroborated that Khelawan was “cussing and
yelling” on the phone and generally “talking in a threatening manner,” but he did not hear


                                             17
a specific threat. Even if we were to conclude this testimony was sufficient to establish
the threat was made, based on the facts of this case, such a threat did not warrant
instructing on voluntary manslaughter.
       In People v. Cole (2004) 33 Cal.4th 1158, our Supreme Court held a cohabitant
girlfriend’s threat, during a heated argument, that she would “put a ‘butcher knife in [the
defendant’s] ass’” did not satisfy the objective element of heat of passion, explaining the
cohabitant was “in bed when defendant began his physical assault by pouring gasoline on
her” and their conduct during the argument “was no different than the many other
occasions on which they had argued in their five-year relationship.” (Id. at p. 1216.)
Here, defendant’s argument with Khelawan took place over the phone, through text
messages and a single phone call, which may have included the above-mentioned threat
to kill defendant’s family. This phone call occurred during defendant’s drive to her
family’s motel room. When defendant and James reached the motel room, Khelawan
was not there and had not been there that night. They then set out in search of him,
during which time defendant renewed her proposal to James that they rob Khelawan at
gunpoint. Even assuming the purported threat against defendant’s family satisfied the
subjective element of heat of passion, no reasonable person would have continued to be
so overcome by passion as to act rashly or without due deliberation and reflection after
finding out that her family was fine. In other words, like Cole, the purported provocation
(in both cases, the argument and threat) was sufficiently removed from the ultimate act
(there, the defendant’s lighting of his girlfriend on fire while she was in bed; here,
chasing Khelawan down the street some distance from the motel and placing James in a
position to shoot him) no reasonable person would have had a continued loss of reason or
judgment at the time the act was committed.
       The only facts remaining to support a heat of passion theory are the break-up itself
and certain vulgar comments Khelawan made about defendant and her mother. The


                                             18
vulgar comments are not sufficient provocation. (See, e.g., People v. Gutierrez (2009) 45
Cal.4th 789, 827 [cussing at defendant not sufficient provocation]; People v. Manriquez
(2005) 37 Cal.4th 547, 586 [calling defendant a “‘mother fucker’” and taunting him to
take out his weapon and use it not sufficient provocation].) Nor are we persuaded by
defendant’s reliance on cases involving infidelity. (See, e.g., People v. Berry (1976) 18
Cal.3d 509, 513-516 [“two-week period of provocatory conduct” by wife in which she
“alternately taunted defendant with her involvement with [another man] and at the same
time sexually excited defendant, indicating her desire to remain with him”]; People v.
Borchers (1958) 50 Cal.2d 321, 328-329 [“series of events over a considerable period of
time,” including wife’s “admitted infidelity, her statements that she wished she were
dead, her attempt to jump from the car on the trip to San Diego, her repeated urging that
defendant shoot her, [her son], and himself on the night of the homicide, and her taunt,
‘are you chicken’”].) While the purported reason for the break-up was a nude picture
Khelawan apparently received from another woman, defendant was admittedly dating
multiple men at the time Khelawan received this picture. Defendant also admitted she
was merely stringing Khelawan along “so he would give [her] money.” Simply put, the
relationship between defendant and Khelawan was not serious enough for defendant to
invoke this line of cases.
       We conclude there is no substantial evidence supporting instruction on heat of
passion voluntary manslaughter.
                                            III
                                  Cumulative Prejudice
       Having rejected defendant’s assertions of instructional error, we must also reject
her additional claim the cumulative effect of these assertions of error amounted to a
violation of her constitutional rights requiring reversal. (See People v. Boyer (2006) 38
Cal.4th 412, 489.)


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                                             IV
                                     Sentencing Error
       Turning to sentencing, defendant claims the trial court erred by imposing a
consecutive one-third the middle term sentence on her conviction for shooting at an
occupied vehicle (Count Three) before staying execution of that sentence under
section 654. The Attorney General concedes the point and asks that we exercise our
authority to modify the judgment to impose a middle term sentence and stay execution of
this sentence under section 654, as we did in People v. Alford (2010) 180 Cal.App.4th
1463. We accept the concession. Using the one-third of the middle term formula is
inappropriate because the sentence was stayed under section 654. (§ 1170.1, subd. (a).)
We modify the judgment to impose a middle term sentence of five years for Count Three
and stay execution of this sentence. This modification of the judgment is consistent with
the abstract of judgment, so no modification of the abstract is required.
                                             V
                         Correction of the Abstract of Judgment
       The abstract of judgment does require correction in one respect. As defendant
points out, and as the Attorney General concedes, the abstract of judgment reflects two
one-year firearm enhancements―one attached to defendant’s murder conviction (Count
One) and one attached to the assault with a semi-automatic firearm conviction (Count
Two). Only one such enhancement was found true and imposed by the trial court―the
former, attached to Count One. Accordingly, we order the abstract of judgment corrected
to remove reference to the latter enhancement.
                                      DISPOSITION
       The judgment is modified to impose a middle term sentence of five years on Count
Three, stayed pursuant to Penal Code section 654. As so modified, the judgment is
affirmed. The trial court shall correct the abstract of judgment to reflect a single one-year


                                             20
firearm enhancement attached to Count One and remove the reference to a second such
enhancement purportedly attached to Count Two. A certified copy of the corrected
abstract of judgment shall be forwarded to the Department of Corrections and
Rehabilitation.



                                                     HOCH         , J.



We concur:



      BLEASE         , Acting P. J.



       BUTZ          , J.




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