Filed 7/19/16 P. v. Grant CA2/8
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION EIGHT


THE PEOPLE,                                                          B264820

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA428350)
         v.

ANTHONY MICHAEL GRANT,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County,
Eleanor J. Hunter, Judge. Affirmed as modified.

         Paul Couenhoven, 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, Senior Assistant Attorney General, Victoria B. Wilson and
Viet H. Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.


                              _____________________________________
       A jury found appellant Anthony Grant guilty of first degree murder, with findings
that he personally discharged a firearm causing great bodily injury and death, and
committed the murder for the benefit of a criminal street gang. (Pen. Code, §§ 187,
subd. (a); 12022.53, subd. (d); 186.22, subd. (b)(1)(C).)1 Grant admitted a prior strike
conviction, a prior serious felony conviction, and prior conviction with a prison term.
(§§ 667.5, subds. (b)-(i); 1170.12, subds. (a)-(d); 667, subd. (a); 667.5, subd. (b).)
The trial court sentenced Grant to an aggregate term of 80 years to life in state prison.
Grant argues the gang finding is not supported by substantial evidence, and that various
evidentiary and instructional errors warrant reversal of his murder conviction.
We reverse as the gang enhancement, but otherwise affirm the judgment.
                                           FACTS
The Murder and Investigation
       Matthew Sims (the murder victim) and Grant were both members of the 7-4 clique
of the Hoovers criminal street gang. On April 9, 2014, at some time around 3:45 or 4:45
in the afternoon, Sims went to Erick Washington’s house to talk about an incident
between Sims and Grant. At the time, Washington also was a member of the 7-4
Hoovers clique.2 Sims seemed “antsy.” He said that he and Grant “got into it” in the
backyard at Grant’s house, and that they had “squared off” to fight. Sims said that as he
and Grant did so, several “little homies” surrounded Sims. Sims put his hand on a
screwdriver in his pocket and told Grant to meet him at the “donut,” an area on 80th
Street between Hoover Street and Figueroa Street known for fighting. Sims said he had
walked to the donut, but Grant did not show up. Sims had then walked directly to
Washington’s house on 81st Street. After describing the incident with Grant, Sims asked
Washington if he would talk to Grant. Washington said that he would, but he had a prior
family obligation first. After talking to Washington, Sims left.

1
       All further undesignated section references are to the Penal Code.
2
        By the time of trial, Washington was trying to distance himself from the gang
culture and was cooperating with police authorities in connection with gang criminal
activities.

                                              2
         On April 9, 2014, at approximately 7:50 p.m., Los Angeles Police Department
(LAPD) Officer Craig Stogel and his partner received a radio call about a report of
a “man down on the sidewalk.” In response to the call, the officers drove to the area of
76th Street and Figueroa Street. When the officers arrived at the scene, Officer Stogel
saw Sims lying on the ground. He was bleeding and appeared to have been shot multiple
times, including a gunshot wound to his head. Officer Stogel and his partner searched the
area for evidence, and found several expended .45 caliber bullets and bullet shell casings
in a nearby alley. Subsequent ballistics examination established that the casings and
bullets were all fired from the same gun, and that they were “most likely” fired from a
rifle.
         LAPD Detective Michael Levant and his partner also responded to the area of the
shooting on August 9, 2014. Detective Levant and his partner recovered date and time-
stamped surveillance videos from two cameras located at the rear of a residence on 76th
Street, facing an alley. One of the cameras looked west toward Hoover Street, the other
camera looked east toward Figueroa Street.
         One video showed three individuals walking east toward Figueroa Street. In a jail
telephone call after he was arrested, Grant admitted he was depicted in the video. At
trial, Erick Washington identified Grant as the man in the video who was wearing orange
shorts. A second video showed Grant going back down the alley, heading in the direction
of his home. A third video showed Grant riding a bicycle, heading eastbound. It
appeared that Grant had a rifle, wrapped in clothing, on the handlebars of the bicycle.
The video showed Grant riding his bicycle back through the alley a few minutes later.
A later video showed a male walking down the alley. The male threw an unknown object
onto the roof of a residence. Detective Levant went onto the roof where the unknown
object had been thrown, and recovered a pair of orange cargo shorts. Subsequent
laboratory tests established that Grant’s DNA was on the shorts. Further, the tests
established that there was gunshot residue on the front of the shorts.




                                             3
The Criminal Case
       In February 2015, the People filed an information charging Grant with murder
(§ 187, subd. (a)), with an allegation that he personally discharged a firearm causing great
bodily injury and death (§ 12022.53, subd. (d)). Further, the information alleged that
Grant committed the murder for the benefit of a criminal street gang. (§ 186.22, subd.
(b)(1)(C).) The case was tried to a jury in May 2015, at which time the prosecution
presented evidence establishing the facts summarized above. The prosecution also
presented the testimony of a gang expert.
       Grant did not present any evidence in his defense. His trial counsel argued to the
jury: “We know that Mr. Grant fired the rifle that killed Mr. Sims. . . . Why did this
happen? [¶] You must find Mr. Grant not guilty [of any crime] in the case because the
evidence you heard points toward self-defense.” In making this argument, Grant’s trial
counsel noted that Sims was shot near Grant’s house. Counsel argued that the evidence
showed Sims had a confrontation with Grant during which Sims went to use a deadly
weapon -- the screwdriver in his pocket. Sims had then gone to the donut to fight Grant,
but Grant did not show. Counsel argued that it could be reasonably inferred that Sims
had then gone looking for Grant in the area around his home. Counsel proffered that all
of the parties involved in the events were not “boy scouts,” but hardened gang members,
and that Grant had reasonable grounds for fearing for his life from Sims.
       The case was submitted to the jury on instructions on first degree premeditated
murder, second degree murder, and voluntary manslaughter based on “imperfect self-
defense,” and the self-defense. On May 28, 2015, the jury returned a verdict finding
Grant guilty of first degree murder, with a finding that he personally discharged a firearm
causing great bodily injury and death. Further, that he had committed the murder for the
benefit of a criminal street gang.
       Grant thereafter admitted he suffered a prior conviction for manslaughter (§ 192)
which qualified as a strike, a prior serious or violent conviction, and a conviction with a
prison term. (§§ 667, subds. (b)-(i); 1170.12, subds. (a)-(d); 667, subd. (a); 667.5, subd.
(b).) The trial court sentenced Grant to a total aggregate term of 80 years in state prison

                                             4
as follows: an indeterminate term of 25 years to life for the murder, doubled for the prior
strike, plus a consecutive indeterminate term of 25 years to life for the firearm
enhancement, plus a consecutive five-year term for the prior serious felony conviction.
       Grant filed a timely notice of appeal.
                                       DISCUSISON
I.     The Gang Enhancement is Not Supported by Sufficient Evidence
       Grant’s first contention is the evidence is insufficient to support the finding that
the crimes were committed for the benefit of a criminal street gang. We agree.
       “The law regarding appellate review of claims challenging the sufficiency of the
evidence in the context of gang enhancements is the same as that governing review of
sufficiency claims generally. (See People v. Vy (2004) 122 Cal.App.4th 1209, 1224.)”
(People v. Leon (2008) 161 Cal.App.4th 149, 161.) “In considering a challenge to the
sufficiency of the evidence to support an enhancement, we review the entire record in the
light most favorable to the judgment to determine whether it contains substantial
evidence—that is, evidence that is reasonable, credible, and of solid value—from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.
(People v. Wilson (2008) 44 Cal.4th 758, 806.) We presume every fact in support of the
judgment the trier of fact could have reasonably deduced from the evidence. (Ibid.) If
the circumstances reasonably justify the trier of fact’s findings, reversal of the judgment
is not warranted simply because the circumstances might also reasonably be reconciled
with a contrary finding. (People v. Lindberg (2008) 45 Cal.4th 1, 27.) ‘A reviewing
court neither reweighs evidence nor reevaluates a witness’s credibility.’ (Ibid.)” (People
v. Albillar (2010) 51 Cal.4th 47, 59-60 (Albillar).)
       “It has long been settled that expert testimony regarding whether a crime was gang
related is admissible. ([Albillar], supra, 51 Cal.4th at p. 63; People v. Gardeley [(1996)]
14 Cal.4th [605,] 619.)” (People v. Vang (2011) 52 Cal.4th 1038, 1050, fn. 5 (Vang).)
“‘Expert opinion that particular criminal conduct benefited a gang’ is not only
permissible but can be sufficient to support the . . . section186.22, subdivision (b)(1),
gang enhancement. ([Albillar], supra, 51 Cal.4th at p. 63.)” (Vang, supra, at p. 1048.)

                                                5
“Expert opinion that particular criminal conduct benefited a gang by enhancing its
reputation for viciousness can be sufficient to raise the inference that the conduct was
‘committed for the benefit of . . . a[] criminal street gang’ within the meaning of section
186.22[, subdivision] (b)(1). (See, e.g., People v. Vazquez (2009) 178 Cal.App.4th 347,
354 [relying on expert opinion that the murder of a non-gang member benefited the gang
because ‘violent crimes like murder elevate the status of the gang within gang culture and
intimidate neighborhood residents who are, as a result, “fearful to come forward, assist
law enforcement, testify in court, or even report crimes that they’re victims of for fear
that they may be the gang’s next victim or at least retaliated on by that gang . . .”’];
People v. Romero (2006) 140 Cal.App.4th 15, 19 [relying on expert opinion that ‘a
shooting of any African-American men would elevate the status of the shooters and their
entire [Latino] gang’].)” (Albillar, supra, at p. 63.)
       LAPD Officer Richard Delgado testified as a gang expert at Grant’s trial. He
described his training and experience in gang investigations, and explained that one of his
assigned duties was to monitor the Hoovers gang. Officer Delgado testified regarding
two prior murders committed by members of the Hoovers gang, and offered his opinion
that Grant was a member of the gang. The prosecutor then asked Officer Delgado the
following hypothetical question :
              “A known member of [the] Hoovers, we’re going to call him gang
       member A, approaches another known member of [the] Hoovers, and we’re
       going to call him gang member B. And this occurs at A’s house on 77th
       and Hoover.
              “They get into a confrontation, and gang member A, along with
       other members of [the] Hoovers, surround gang member B. During that
       confrontation B puts his hand on a screwdriver he has in his pocket and
       tells A to meet him at 80th, between Figueroa and Hoover, so that they
       could fight.
              “Gang member B then leaves and goes to 80th and see[s] no one
       there, and proceeds straight to the home of a third Hoover gang member

                                              6
       who we’ll call C – the home is on 81st – and he explains the confrontation
       that he had with gang member A.
              “B then leaves C’s house and goes to an alley near Figueroa and
       76th. Gang member A goes to that location and shoots gang member B
       multiple times, killing him.
              “Do you have an opinion as to whether or not the murder of gang
       member B is for the benefit of, in association with, or at the direction of the
       Hoover criminals?”


       Officer Delgado answered the hypothetical question, yes. He explained:
              “Well, the act of an individual killing another person is the most
       violent act a person can commit – an individual can commit. [¶] Now the
       gang, they thrive off of this notion or this idea of violence. Being that they
       do so, they want the community to fear them for a few reasons, but the
       main reason, the most important reason is for the simple fact that they want
       the community to be scared to call the police; it’s as simple as that. They
       don’t want them to report crimes or to cooperate with any type of law
       enforcement investigation.
              “What that does is it enables the gang as a whole to continue with
       their pattern of criminal activity, whether it be selling narcotics, carrying
       firearms, or just congregating in large groups. . . .”
       Officer Delgado then went on to explain that the killing of one gang member by a
member of the same gang as hypothesized in the prosecutor’s question presented unique
factors:
              “That’s very important, because it’s rare. It doesn’t really happen.
       But what that means is that there are going to be members from within his
       own gang that didn’t agree with it, that they may even become upset about
       it, but, at the end of the day, they’re still going to have to second guess
       themselves when it comes to potentially confronting gang member A,

                                              7
       knowing that he had killed a member of his own gang. So, although they
       may not like gang member A, there is a respect still there because of the –
       the violent act. . . .”


       Grant argues that there is no evidence in the record tending to show that he acted
with the specific intent to promote, further, or assist the Hoovers gang when he shot
Sims. The People contend that such intent can be inferred from the fact that Grant
committed the crime “in concert with younger members of the gang.” We find Grant’s
argument persuasive.
       The problem we see with the People’s position is that the evidence does not show
that this murder was committed in concert with other Hoover gang members. There was
evidence showing that “little homies” supported Grant when he and Sims “squared off” at
Grant’s house. Further, that Grant walked down the alley with other individuals prior to
the shooting, and other individuals helped him move out of his house after the shooting.
However, as to this latter evidence, there was no showing that any of the other
individuals with Grant were gang members. In fact, the persons who walked down the
alley with Grant and the persons who helped him move out of the house were never
identified. In addition, even if these individuals were gang members, Grant was not
accompanied by them immediately before the murder when he rode the bicycle through
the alley with the rifle. At that point, Grant was only in the company of a dog. Thus, the
only evidence that the murder was committed in concert with other gang members is the
evidence showing that a group of “little homies” stood with Grant when he squared off
with Sims well before the shooting, in a location that was a significant distance from the
scene of the shooting. We agree with Grant that this does not show he acted with the
specific intent to benefit or assist the Hoovers gang when he shot Sims. Evidence that a
defendant was with other unidentified individuals earlier on the day of a crime, does
support the conclusion that the defendant intended to benefit his gang when he committed
a crime later in the day.



                                             8
       Neither does the evidence support the prosecution theory at trial that the crime was
committed for the benefit of the Hoovers street gang. Officer Delgado testified the gang
benefitted from the murder because it imparted fear in local residents. As put by Officer
Delgado: the gang “want[s] the community to be scared to call the police; it’s as simple
as that.” We find the claim that the murder benefitted the Hoovers is tenuous in this
particular case. The victim was also a member of the Hoovers, and there is no evidence
showing that Grant, or any Hoovers gang member, broadcast involvement in the killing.
We are reluctant to find Officer Delgado’s testimony sufficient to support the jury’s gang
benefit finding because to find so would essentially support the proposition that every
violent crime committed by a gang member is subject to a gang benefit enhancement, and
this would swallow up the requirements of the gang enhancement statute. As People v.
Ramirez (2016) 244 Cal.App.4th 800 observes, it makes little sense to conclude that a
gang member intends to benefit his gang when he kills a co-member of the gang, unless
some gang-concerned reason is shown for the killing, such as where the victim gang
member was thought to be cooperating with the police. (Id. at p. 819.) There is no
evidence here tending to indicate that Grant wanted to kill Sims to provide some benefit
to the Hoovers gang, such as stopping a snitch.3
II.    Evidence that Erick Washington was Threatened was Properly Admitted
       Grant next contends his murder conviction must be reversed because the trial court
allowed the prosecution to elicit testimony from Erick Washington that he had been
threatened by members of the Hoovers gang. We disagree.
The Trial Setting
       Before trial, the prosecutor advised the trial court that it was her intent to present
evidence that Washington had been previously threatened by the Hoovers gang. The


3
       Grant also contends the trial evidence is also insufficient to support the gang
enhancement because there is no evidence that one of the primary activities of the
Hoovers is the commission of the requisite enumerated offenses. Because we have found
the gang enhancement was not supported by sufficient evidence, we need not decide this
argument.


                                              9
evidence was not that Washington had been threatened by Grant, but that Washington
had been threatened in general. The trial court preliminary ruled that the evidence could
be admitted because it concerned Washington’s credibility and his willingness to testify.
Grant’s counsel asked for a hearing to determine whether Washington felt threatened for
cooperating with authorities in a different case or in this case. Defense counsel’s
proposition was that if Washington had no fear about testifying in Grant’s case, then
evidence of the threats against him should not be admitted as it would be of little value on
the issue of Washington’s credibility and posed a risk that the jury would use it as
substantive proof of Grant’s guilt. The court granted defense counsel’s request for a
hearing.
       At a hearing outside the presence of the jury, Washington testified that he received
threats because he was “snitching” and “bringing the whole hood down.” He initially
testified that he was threatened on another case, but he later clarified that he had been
threatened because of his cooperation with law enforcement in general, and that he had
been threatened on both cases. He acknowledged he felt that the majority of the threats
pertained to the other case. On cross-examination, Washington testified that if he was not
called as a witness on the other case, he would not be afraid to testify in Grant’s case. On
redirect examination, however, Washington testified that even if he was not called as a
witness on the other case, he would still be afraid for his family’s safety. After hearing
Washington’s testimony, the trial court affirmed its preliminary ruling that the evidence
of threats could be admitted because they were connected to both cases and Washington
was afraid for his family’s safety. The court indicated that if the prosecution used the
evidence of threats during trial, it would give the jury a limiting instruction in accordance
with People v. Olguin (1994) 31 Cal.App.4th 1355, 1368 (Olguin).
       Later, just before Washington testified at trial, the prosecutor advised the trial
court that she intended to admit four “Instagram” photographs which Washington had
viewed. All of the photographs included language labeling Washington as a “snitch” or a
“rat.” Defense counsel objected to the admission of the postings on the ground that the
defense was not going to attack Washington’s credibility. The court ruled that all four

                                             10
photographs could be admitted, explaining that “credibility is the heart and soul of any
case.” At the same time, the court ruled that Washington could not testify about the
effect it had on him and his family.
       During direct examination, Washington testified that he had been labeled a
“snitch” by the Hoovers, and that he felt he was in danger of getting killed because he
was cooperating with law enforcement. He testified that he and his family had been
threatened in social media postings, and the four Instagram photographs were admitted in
support of this testimony. Before the social media photographs were shown to the jury,
the trial court gave the following limiting instruction:
       “This evidence can be used only as it has relevance, if any, to the witness’s
       state of mind, attitude, actions, bias, prejudice, lack or presence thereof.
       So it’s going basically to his state of mind. It’s not offered for the truth; it’s
       just offered to see how it affects him.”


       It is axiomatic that, when evidence is offered to show that a defendant directly
made threats to dissuade a witness from testifying, the evidence may be used to support
an inference of the defendant’s consciousness of guilt. However, when there is no
evidence showing a defendant made the threats, or authorized a third-party to make the
threats, evidence of threats is not admissible as substantive evidence of the defendant’s
guilt. (People v. Weiss (1958) 50 Cal.2d 535, 554.) Still, evidence showing that a third-
party threatened a witness may be admissible for another proper purpose. For example,
under Olguin, supra, evidence showing that a third party threatened a witness may be
admitted to show the witness is afraid to testify because the witness’s fear could be
relevant to the jury on the issue of the witness’s credibility. (Olguin, supra, 31
Cal.App.4th at pp. 1368-1369; see also People v. Burgener (2003) 29 Cal.4th 833, 869.)
       As explained in Olguin: “A witness who testifies despite fear of recrimination of
any kind by anyone is more credible because of his or her personal stake in the testimony.
Just as the fact a witness expects to receive something in exchange for testimony may be
considered in evaluating his or her credibility [citation], the fact a witness is testifying

                                              11
despite fear of recrimination is important to fully evaluating his or her
credibility. . . . [¶] Regardless of [a threat’s] source, the jury would be entitled to
evaluate the witness’s testimony knowing it was given under such circumstances.”
(Olguin, supra, 31 Cal.App.4th at pp. 1368-1369.)
         Here, the evidence of threats against Washington was not used in relation to
Grant’s guilt as it was not offered to show Grant’s consciousness of guilt. The evidence
was offered only as a factor relevant to Washington’s credibility. This was proper
because Washington’s testimony, among its other aspects, tended to show that Grant
planned and premeditated the shooting of the victim, Sims. Washington’s testimony, if
believed by the jury, established that Sims and Grant “squared off” on the day of the
shooting. Additional evidence showed that Sims was shot in an alley near Grant’s home.
Pieced all together, the evidence showed that, after a fight, Grant got a gun, got on a
bicycle, and rode to the location of the shooting –– a planned and premeditated murder.
It tended to undermine Grant’s self-defense defense. In summary, because Washington’s
testimony implicated Grant in the shooting and in planning the shooting, and because
Washington’s credibility was an important issue for the jury to evaluate, there was no
error in admitting the evidence of threats. (Olguin, supra, 31 Cal.App.4th at pp. 1368-
1369.)
         Assuming that the evidence of threats should not have been admitted, we find the
error in admitting the evidence harmless under People v. Watson (1956) 46 Cal.2d 818,
836. Apart from Washington, a different witness, Castillo L., reported to police that on
the night of the murder, he saw Grant with a rifle, wrapped up in a shirt. Further, the
videotapes recovered from the cameras in the alley showed Grant riding a bicycle down
the alley, heading toward the scene of the shooting, carrying what looks like a rifle,
wrapped in clothing, on the handlebars of the bicycle. A person on one of the videotapes
threw a pair of shorts onto a roof. The shorts were recovered and tested, and indicated
Grant’s DNA and gunshot residue were on the shorts. Further, of course, Washington’s
testimony implicating Grant would have been admitted, just without the background of



                                              12
the threats evidence. We are confident that, with or without the jury’s hearing the
evidence of threats, the outcome of Grant’s trial would have been the same.
III.   The Trial Court Was Not Required to Instruct on Voluntary Manslaughter
       Grant contends his murder conviction must be reversed because the trial court
erred in failing to instruct on the lesser offense of voluntary manslaughter based on heat
of passion. We disagree.
       “[A] 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.” (People v. Lewis (2001) 25 Cal.4th 610,
645.) “[S]ubstantial evidence to support instructions on a lesser included offense may
exist even in the face of inconsistencies presented by the defense itself.” (People v.
Breverman (1998) 19 Cal.4th 142, 162-163 (Breverman).) “Conversely, even on request,
a trial judge has no duty to instruct on any lesser offense unless there is substantial
evidence to support such instruction.” (People v. Cunningham (2001) 25 Cal.4th 926,
1008.) “[T]he existence of ‘any evidence, no matter how weak’ will not justify
instructions on a lesser included offense . . . .” (Breverman, supra, at p. 162.) Evidence
is substantial for this purpose if it could cause a jury composed of reasonable persons to
conclude that the defendant committed the lesser but not the greater offense. (Ibid.)
Such instruction is warranted only if “‘there is evidence which, if accepted by the trier of
fact, would absolve [the] defendant from guilt of the greater offense’ [citation] but not the
lesser.” (People v. Memro (1995) 11 Cal.4th 786, 871.) “‘“[S]peculation is an
insufficient basis upon which to require the giving of an instruction on a lesser included
offense.”’ [Citations.]” (People v. Valdez (2004) 32 Cal.4th 73, 116.)
       “‘“Murder is the unlawful killing of a human being with malice aforethought.
(§ 187, subd. (a).) A defendant who commits an intentional and unlawful killing but who
lacks malice is guilty of . . . voluntary manslaughter. (§ 192.)” [Citation.] Generally, the
intent to unlawfully kill constitutes malice. [Citations.] “But a defendant who
intentionally and unlawfully kills lacks malice . . . in limited, explicitly defined



                                              13
circumstances[, such as] when the defendant acts in a ‘sudden quarrel or heat of passion’
(§ 192, subd. (a)).”’” (People v. Moye (2009) 47 Cal.4th 537, 549.)
       The words “upon a sudden quarrel or heat of passion,” in section 192, subdivision
(a), includes both a subjective and an objective component. As to the objective
component, the victim’s conduct must have been sufficiently provoking so as to cause a
reasonable person of average disposition to act rashly or without due deliberation and
reflection. (People v. Enraca (2012) 53 Cal.4th 735, 759.) “The standard is not the
reaction of a ‘reasonable gang member.’” (Ibid.)
       “‘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.]’ [Citation.] [¶] . . .‘“However, if sufficient time
has elapsed between the provocation and the fatal blow for passion to subside and reason
to return, the killing is not voluntary manslaughter. . . .” [Citation.]’ [Citation.]”
(People v. Moye, supra, 47 Cal.4th at pp. 549-550.)
       The trial court had no duty to instruct on heat of passion voluntary manslaughter
as a lesser included offense of murder because there was not substantial evidence to
support a jury’s finding that any conduct by Sims provoked Grant to shoot Sims upon a
sudden quarrel or heat of passion. At most, the evidence showed that during an incident
separate in time and place from the murder, Sims reached for a screwdriver in his back
pocket when he and Grant decided to fight. No reasonable person of average disposition
would have been so provoked by such conduct that it would cause him to go home,
retrieve a gun, and hours later ride with the gun on a bicycle to a separate place, and
shoot the man who wielded the screwdriver. As the Supreme Court taught in People v.
Gutierrez (2002) 28 Cal.4th 1083, a person’s desire for revenge is not sufficient to reduce
murder to voluntary manslaughter under a heat of passion theory. (Id. at p. 1144.)



                                              14
       We think that enough has been said, but note that even if the trial court erred in not
instructing on the crime of heat of passion voluntary manslaughter, the error was
harmless beyond all possible doubt. A failure to instruct on a lesser included offense is
harmless when the factual question posed by the omitted instruction was necessarily
resolved unfavorably to the defendant under other instructions. (People v. Coffman and
Marlow (2004) 34 Cal.4th 1, 96-97.) At Grant’s trial, the jury was instructed on first
degree premeditated murder and on second degree murder. Within the instructions on
first degree premeditated murder, the jury was told: “A decision to kill made rashly,
impulsively, or without careful consideration is not deliberate and premeditated.”
(See CALCRIM No. 521.) Further, the instructions on murder told the jury that
“[p]rovocation may reduce a murder from first degree to second degree and may reduce a
murder to manslaughter. . . . If you conclude that the defendant committed murder but
was provoked, consider the provocation in deciding whether the crime was first or second
degree murder. Also, consider the provocation in deciding whether the defendant
committed murder or manslaughter.” (See CALCRIM No. 522.) The jury’s finding that
Grant committed first degree premeditated murder necessarily demonstrates that the jury
found he did not act “rashly, impulsively, or without careful consideration,” and that
there was no provocation. Accordingly, any error in failing to instruct on heat of passion
voluntary manslaughter must be viewed as harmless beyond all doubt. The jury’s finding
that Grant did not kill Sims rashly, impulsively, or without careful consideration, and
without provocation, demonstrates that it would never have found him guilty of voluntary
manslaughter based on heat of passion.
       People v. Peau (2015) 236 Cal.App.4th 823 (Peau) is instructive. In Peau, just as
in Grant’s case before us today, the jury was instructed on first degree premeditated
murder and second degree murder, but not on heat of passion voluntary manslaughter.
Further, the instructions told the jury that it could not return a verdict of first degree
premeditated murder unless it found that the defendant “‘carefully weighed the
considerations for and against his choice and, knowing the consequences, decided to
kill.’” (Peau, supra, 236 Cal.App.4th at p. 831.) The jury convicted the defendant of

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first degree premeditated murder. The Court of Appeal concluded that the failure to
instruct on heat of passion voluntary manslaughter “was harmless beyond a reasonable
doubt because the jury found that [the] murder was willful, deliberate, and premeditated.”
(Id. at p. 832.) In coming to this conclusion, the Court of Appeal reasoned that a jury’s
finding that a murder is willful, deliberate, and premeditated “‘is manifestly inconsistent
with having acted under the heat of passion.’” (Id. at p. 831, quoting People v. Wharton
(1991) 53 Cal.3d 522, 572.)
       Grant argues we should not follow Peau because it was wrongly decided. We are
not persuaded. To the contrary; we think the decision is well reasoned. When a jury is
instructed to decide whether a defendant acted willfully, deliberately and with
premeditation, and that acting rashly, impulsively, or without careful consideration is not
deliberate and premeditated murder, and to decide whether a defendant acted in response
to provocation, the jury is implicitly decides the elements involved in heat of passion
manslaughter.
                                     DISPOSITION
       The judgment is modified to reflect the reversal of the jury’s gang benefit finding.
As modified, the judgment is affirmed.


                                                         BIGELOW, P.J.
We concur:


              RUBIN, J.




              GRIMES, J.




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