Filed 10/3/14 P. v. Scott CA2/4
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION FOUR




THE PEOPLE,                                                             B247079

         Plaintiff and Respondent,                                      (Los Angeles County
                                                                        Super. Ct. No. TA123666)
         v.

JAMURL A. SCOTT,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County,
Eleanor J. Hunter, Judge. Affirmed.
         Susan K. Shaler, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald Engler, Acting Chief Assistant
Attorney General, Steven E. Mercer and Brendan Sullivan, Deputy Attorneys General,
for Plaintiff and Respondent.
       A jury convicted Jamurl A. Scott (defendant) of first degree murder and made true
findings as to gang and firearm enhancements. Defendant contends his conviction should
be reversed because the trial court (1) denied his motion under Pitchess v. Superior Court
(1974) 11 Cal.3d 531 (Pitchess) for discovery of portions of the arresting officers’
personnel files, (2) failed to instruct the jury on second degree murder and voluntary
manslaughter, and (3) erroneously instructed the jury on first degree murder. We
conclude that the trial court did not abuse its discretion in denying defendant’s Pitchess
motion, and any instructional error was not prejudicial. We therefore affirm.


                    FACTUAL AND PROCEDURAL BACKGROUND


       On July 24, 2012, defendant was charged by information with the murder of Louis
Smith in violation of Penal Code section 187, subdivision (a).1 The information further
alleged (1) defendant personally and intentionally discharged a firearm, causing great
bodily injury and death to Smith (§ 12022.53, subd. (d)); (2) defendant personally used a
firearm (§ 12022.53, subd. (b)); and (3) the above offense was committed for the benefit
of, at the direction of, and in association with a criminal street gang with the specific
intent to promote, further, and assist in criminal conduct by gang members (§ 186.22,
subd. (b)(1)(C)).


       A.     Trial
       The case was tried to a jury in January 2013. The evidence adduced at trial was as
follows:


       Maya Stewart
       On January 3, 2011, Smith and his girlfriend, Maya Stewart, drove to a shopping
center at 1653 E. 103rd Street in Los Angeles to eat at a Chinese Express restaurant.

1
       All subsequent undesignated statutory references are to the Penal Code.


                                              2
Stewart knew Smith had been a member of the Bounty Hunters, a Blood gang, but she
believed he was no longer active. As Stewart and Smith walked into the restaurant,
Smith said, “What’s up?” to defendant, who was inside. Smith typically said, “What’s
up?” when he encountered people he did not know “to make sure everything was cool.”
Defendant answered, “What’s up, Loc?” Stewart understood “Loc” to refer to a Crip
gang member. Smith appeared surprised by the response and again said, “What’s up?”
with “a little bit more edge to it.” Defendant again responded, “What’s up, Loc?” Smith
responded, “What’s up, Dawg?” Stewart understood “Dawg” to mean a member of a
Blood gang.
       Defendant had a little girl with him who appeared to be three or four years old.
After the exchange with Smith, defendant left the restaurant with the little girl and
walked towards the parking lot. A minute or two later, defendant returned without the
child and said to Smith, “Let me holler at you.” Stewart turned around and saw
defendant and Smith fistfighting. Stewart did not know who threw the first punch. At
some point, Smith pinned defendant by his neck against the glass of a Popeye’s
restaurant. Smith said to defendant, “Why did you Loc me? I said, ‘What’s up?’ to you.
Why did you Loc me in front of your daughter?” Smith then added, “This is Bounty
Hunters.” Defendant responded, “I’m not with that,” and Smith said, “You’re not with
that? Then let me go.” Each man let go of the other, and defendant walked toward a
rusted blue car and drove away. As he did so, Stewart saw defendant was bleeding from
his face.
       After defendant left, Stewart urged Smith to leave, but he refused. Stewart and
Smith walked back into the restaurant and ordered some food. Stewart noticed that Smith
had blood on his hands, and she suggested he wash it off. Stewart went into Popeye’s,
returned to the food courtyard with wet paper towels, and began to wash Smith’s hands.
At some point, Stewart looked up and saw defendant coming back. He was wearing the
same clothes he had worn before, but he was now also wearing a knit hat with a brim.
Stewart told Smith defendant had returned, and Smith looked up and saw him. Smith
pushed Stewart away, said to defendant, “You ready to do this again?” and put his fists


                                             3
up. Defendant pulled up his shirt and pulled out a semiautomatic pistol. He then cocked
the gun and started shooting at Smith. Smith ran towards the Popeye’s restaurant but was
not able to open the doors. Defendant continued to walk towards Smith, shooting him in
the back of the head. After firing many shots, defendant ran away.
       Stewart identified defendant at the preliminary hearing and at trial as the man who
shot and killed Smith. Nothing about the way defendant was dressed the night of the
murder caused Stewart to think defendant was a member of a gang. She understood
“Loc” to be an insult.


       Gustavo Magana
       On January 3, 2011, Gustavo Magana was working at a Subway restaurant at 1653
East 103rd Street in Los Angeles. Magana first saw defendant about 10 minutes after his
shift started at 3:00 p.m. Defendant was with two little girls. Sometime later, Magana
saw a fight break out between defendant and Smith. Smith pinned defendant against the
double doors of the Popeye’s restaurant. Three to five minutes later, defendant walked
away, got into his car in the parking lot, and drove away.
       Magana followed defendant to his car because he was “amazed about how much
blood he was actually losing” from his nose. After he lost sight of defendant’s car,
Magana returned to work and began making sandwiches. At some point, Magana looked
up and saw defendant coming from north of the Subway store. This was “[n]ot very
long” after the fight—“[m]aybe 10, 15 minutes, at best.” Defendant was no longer
wearing a jacket; Magana could not recall if defendant was wearing a hat. A few seconds
later, Magana heard five to nine gunshots. He looked up and saw defendant shooting
towards Smith. Defendant then stopped shooting and ran away. Magana walked out of
the Subway and saw Smith on the ground, bleeding profusely.
       Magana identified defendant at the preliminary hearing and at trial as the man who
shot Smith.




                                             4
       Dr. Jeffrey Gutstadt
       Dr. Jeffrey Gutstadt is a medical examiner who performed an autopsy on Smith.
Smith suffered five gunshot wounds—to the right arm, right leg, and head.


       Detective Elliott Kane
       Detective Kane is an officer with the Los Angeles Police Department (LAPD).
Following the shooting, he reviewed surveillance video provided to him by the shopping
center where Smith was shot. The video showed a 1980’s Chevy Caprice that matched
the description of the shooter’s vehicle. At one point, the Caprice sped through the
parking lot and wove around other cars in order to exit quickly. At 3:51 p.m., the Caprice
exited the shopping center parking lot, traveling westbound towards Compton. As it
exited, a man wearing a long-sleeved green shirt and blue jeans ran towards it from the
area where the shooting occurred. The man ran down the middle of the street, towards
the moving vehicle. About 15 seconds later, the man appeared to run next to the vehicle
and to reach his left arm out to it.


       Officer Alma Burke
       Officer Alma Burke is a detective with the LAPD homicide unit. She testified that
Smith was a Bounty Hunter Blood, and defendant was believed to be a member of the
Franklin Square Crips. The Bounty Hunter Bloods and Franklin Square Crips are rival
gangs. At the time of the shooting, defendant had a five-year-old stepdaughter and a
six-year-old son.


       Officer Francis Coughlin
       Officer Francis Coughlin is an LAPD officer and a gang expert. He testified that
in gang culture, respect “means everything.” He explained: “If you have respect, you
have credibility. If a gang has respect, it means it’s proven. And the way a gang gets
respect is by committing certain violent crimes, such as robberies, shootings, assault with
deadly weapons, murders. When an individual is respected in a gang, it means he has put


                                             5
in work, he’s committed certain crimes that has earned him a reputation in that gang.” If
a gang member is disrespected, “he has an obligation to retaliate . . . [b]ecause they need
to maintain that credibility. . . . If a gang member is disrespected and that gang member
does not retaliate, that gang’s not considered credible, or it’s considered weak or soft.
When a gang is soft, larger gangs come over and will take over that gang or what they
call swallow up the gang. It could even take over the neighborhood.”
       Franklin Square Crips is a relatively small gang. It is aligned with the Grape
Street Crips, which is a bigger gang. Franklin Square’s primary activities are graffiti,
robberies, narcotics, shootings, and murder. Officer Coughlin believes defendant is a
member of Franklin Square.
       Franklin Square’s enemies are the Bounty Hunter Bloods and the Hacienda
Village Bloods. Smith was a high-ranking member of the Bounty Hunter Bloods; at
some point, he was the highest ranking member of the Bounty Hunter Bloods.
       The mall where Smith was killed is bordered by the territories of the Franklin
Square Crips, Grape Street Crips, Bounty Hunter Bloods, Hacienda Village Bloods, and
Fudgetown Crips. The mall is referred to as a neutral zone, but there have been many
gang incidents there over the years.
       “Loc” means “Love of Crips.” In Officer Coughlin’s experience, it is a nickname
used between fellow Crips. It is also a way of determining if someone else is a Crip.
“Dawg” is a term frequently used between gang members, but Officer Coughlin is not
aware that it has a specific meaning or references a Blood gang. If a Crip says, “What’s
up, Loc?” to a person who is a member of a Blood gang, and that person responds,
“What’s up, Dawg?,” he is “telling the Crip gang member that he’s not a Crip, without
disrespecting the Crip gang member.” If the Blood member wanted to disrespect the
Crip, he could say, “What’s up, Blood?”
       In Officer Coughlin’s opinion, the facts of this case suggest a murder committed
for the benefit of, at the direction of, or in association with a criminal street gang. He
explained that such murder “benefitted the individual who did the shooting as well as it
benefitted the entire gang. . . . [I]t benefits the shooter in the situation because, when a


                                              6
gang member kills another gang member, it enhances his status within the gang. He
earns more respect from his peers, and he’s looked upon more favorably by the
youngsters. He also is more trustworthy because he defended his hood. It benefits the
entire gang because, in part, gangs tend to sustain themselves, as we talked about earlier,
by fear and intimidation in the community. When a gang member murders another gang
member openly, in public, in a shopping mall, it’s a crime that shocks the consciousness.
The citizens in that area that are witnesses are very fearful. And when a gang can make
citizens in their areas fearful, most citizens don’t want to cooperate with law
enforcement, so they don’t call police to report crimes. They definitely don’t come to
court and testify against [them,] they stay inside, they stay off the streets. When this
happens, gangs operate more freely and are able to conduct their criminal behaviors
without fear of interference, and that benefits the whole gang tremendously.”
       Officer Coughlin also opined that the murder was gang related: “[I]t seems like
[defendant] hit up the Bounty Hunter, believing maybe he was a Crip. When the Bounty
Hunter didn’t acknowledge, he hit him up again. When the Bounty Hunter Blood
responded, saying, ‘What’s up, Dawg?,’ he was letting the Crip know, ‘I’m not a Crip.’
Then it starts to escalate into gang activity, where both gang members almost have to
represent their gang[] [a]fter the fight[.] [W]hen the Crip, it sounds like, loses the fight,
goes and gets his gun, he’s — he’s putting in work for his gang. He’s showing the
credibility of the gang. And he’s following gang codes where, if you get punked, you can
either go home and be considered soft or you can go back, escalate the situation, take it
one step further, and show what your hood’s made of. And that’s what it seemed like he
did here by killing him.” Officer Coughlin opined that defendant was still an active
member of his gang because “if he wasn’t part of the gang and he was an ex-gang
member, he should have known, first of all, not to what they call ‘Loc’ somebody. But
also, once he knew the response was, ‘What’s up, Dawg?,’ he should have left it alone.”
In Officer Coughlin’s opinion, the murder was not committed simply because the shooter
was “angry [he] lost the fight.”



                                              7
       B.     Verdict, Judgment, and Appeal
       On January 17, 2013, the jury found defendant guilty of murder in the first degree,
and made true findings as to the charged firearm and gang enhancements. The court
sentenced defendant to a term of 80 years to life in state prison, calculated as a base term
of 25 years to life pursuant to section 187, subdivision (a), plus 25 years to life pursuant
to sections 1170.12, subdivisions (a) through (d), and 667, subdivisions (b) through (i),
plus 25 years to life pursuant to section 12022.53, subdivision (d), plus five years
pursuant to section 667, subdivision (a)(1). The court also ordered defendant to pay fines
and restitution.
       A judgment of conviction was entered on February 13, 2013. Defendant timely
appealed.


                                       DISCUSSION


I.     The Trial Court Did Not Abuse Its Discretion in Denying Defendant’s
       Pitchess Motion
       A.     Background
       On September 6, 2012, defendant filed a Pitchess motion seeking discovery of
portions of the personnel records of arresting Officers Burke and Carreon “relating to
accusations that the above named officers engaged in acts of excessive force, bias,
dishonesty, coercive conduct or acts constituting a violation of the statutory or
constitutional rights of others.” (Fns. omitted.) Defense counsel’s supporting declaration
stated that Officers Burke and Carreon “claim in the police report (attached) that on
May 15, 2011, they interviewed Jamurl Scott in Kansas City, Missouri. They state in the
police report that after advising Mr. Scott of his Miranda[2] rights he did not deny being at
the crime scene and that Mr. Scott stated that the motive for the murder was personal. [¶]
Mr. Scott never told Officers Burke and Carreon that he was present at the crime scene.

2
       Miranda v. Arizona (1966) 384 U.S. 436.


                                              8
In fact, Mr. Scott told the officers that he could not discuss such a serious case without
the presence of his attorney and that he had heard from rumors on the street about the
homicide. Furthermore, Mr. Scott never told the Officers that the homicide was personal;
in fact Mr. Scott had told them that he had heard that the homicide was not personal.
        “The Officer’s [sic] claims that Mr. Scott admitted to being present at the crime
and that the homicide was committed for personal reasons are false. Mr. Scott never said
he was present at the crime scene nor did he say the homicide was committed for
personal reasons. [¶] The defense intends to prove at trial that the Officers have engaged
in such behavior in the past and that they are not credible. The defense intends to show
that the Officers have a habit and custom of making false allegations and lying in their
police reports. The defense also intends to show that the Officers have falsified police
reports to prove and improve cases against innocent defendants. As such, other victims
or witnesses of misconduct in the past would prove not only that the Officers have a habit
and custom of committing such misconduct but that they acted in conformity with that
habit and custom in this case.”
        The police report attached to defendant’s Pitchess motion states that Officers
Burke and Carreon interviewed defendant in Kansas City on May 15, 2011. However,
the report was prepared and signed by only Officer Burke, and only Officer Burke
testified at trial.
        On October 1, 2012, the trial court ordered the police department’s custodian of
records to produce relevant portions of Officer Burke’s personnel file. The court
declined to order production of Officer Carreon’s personnel file, noting that “I have a
police report that [defense] attached that says [the] reporting officer[] is Alma Burke,
No. 32517. It has a spot for another officer and it’s not filled in.” After an in camera
hearing, the court did not order any portions of Officer Burke’s file produced, stating as
follows: “[The] [r]ecord will reflect we conducted the in-camera of the Pitchess motion
as to Officer Burke, false police reports, acts of dishonesty. Custodian of the records said
there were no complaints filed within the last five years.”



                                              9
         B.    Analysis
         Evidence Code sections 1043 and 1045, which codified the Supreme Court’s
decision in Pitchess, allow discovery of certain relevant information in peace officer
personnel records on a showing of good cause. Discovery is a two-step process: “To
initiate discovery, the defendant must file a motion supported by affidavits showing
‘good cause for the discovery,’ first by demonstrating the materiality of the information
to the pending litigation, and second by ‘stating upon reasonable belief’ that the police
agency has the records or information at issue. (§ 1043, subd. (b)(3).) . . . [¶] If the trial
court finds good cause for the discovery, it reviews the pertinent documents in chambers
and discloses only that information falling within the statutorily defined standards of
relevance. (People v. Mooc (2001) 26 Cal.4th 1216, 1226-1227; see City of Los Angeles
v. Superior Court [(2002)] 29 Cal.4th [1,] 9-10.) The trial court may not disclose
complaints more than five years old, the ‘conclusions of any officer’ who investigates a
citizen complaint of police misconduct, or facts ‘so remote as to make [their] disclosure
of little or no practical benefit.’ (§ 1045, subd. (b); City of Los Angeles, supra, 29 Cal.4th
at p. 9.) Typically, the trial court discloses only the names, addresses, and telephone
numbers of individuals who have witnessed, or have previously filed complaints about,
similar misconduct by the officer. (See Haggerty v. Superior Court (2004) 117
Cal.App.4th 1079, 1089-1090.)” (Warrick v. Superior Court (2005) 35 Cal.4th 1011,
1019.)
         “When a trial court concludes a defendant’s Pitchess motion shows good cause for
discovery of relevant evidence contained in a law enforcement officer’s personnel files,
the custodian of the records is obligated to bring to the trial court all ‘potentially relevant’
documents to permit the trial court to examine them for itself. [Citation.] A law
enforcement officer’s personnel record will commonly contain many documents that
would, in the normal case, be irrelevant to a Pitchess motion, including those describing
marital status and identifying family members, employment applications, letters of
recommendation, promotion records, and health records. [Citation.] Documents clearly
irrelevant to a defendant’s Pitchess request need not be presented to the trial court for in


                                              10
camera review. But if the custodian has any doubt whether a particular document is
relevant, he or she should present it to the trial court. Such practice is consistent with the
premise of Evidence Code sections 1043 and 1045 that the locus of decisionmaking is to
be the trial court, not the prosecution or the custodian of records. The custodian should
be prepared to state in chambers and for the record what other documents (or category of
documents) not presented to the court were included in the complete personnel record,
and why those were deemed irrelevant or otherwise nonresponsive to the defendant’s
Pitchess motion. A court reporter should be present to document the custodian’s
statements, as well as any questions the trial court may wish to ask the custodian
regarding the completeness of the record. [Citation.] [¶] The trial court should then
make a record of what documents it examined before ruling on the Pitchess motion.
Such a record will permit future appellate review.” (People v. Mooc, supra, 26 Cal.4th at
pp. 1228-1229.)
       A trial court has broad discretion in ruling on a Pitchess motion, and a reviewing
court should reverse the trial court’s determinations only on a showing that the court
abused this discretion. (Haggerty v. Superior Court (2004) 117 Cal.App.4th 1079, 1086,
citing People v. Samayoa (1997) 15 Cal.4th 795, 827; People v. Gill (1997) 60
Cal.App.4th 743, 749.)
       In the present case, the trial court did not abuse its discretion in declining to order
the custodian of records to produce any portion of the personnel file of Officer Carreon.
Officer Burke, not Officer Carreon, prepared the police report that purports to summarize
defendant’s statements to the arresting officers. In the absence of any showing that
Officer Carreon made or adopted the purportedly false statements contained in the police
report, they cannot be attributed to him.
       With regard to Officer Burke, we have reviewed the transcript of the in camera
hearing, and find no error in the trial court’s finding that there were no discoverable
materials in her personnel file. Defendant’s Pitchess motion thus provides no basis for
reversal.



                                              11
II.    The Trial Court Did Not Prejudicially Err by Failing to Instruct the Jury on
       Second Degree Murder and Voluntary Manslaughter
       Defendant contends we must reverse his first degree murder conviction because
the trial court failed to instruct the jury on second degree murder and voluntary
manslaughter. For the reasons that follow, we conclude there was no prejudice, and
therefore any instructional error provides no basis for reversal.


       A.     Homicide Instructions Requested and Given
       The defense’s primary theory at trial was that defendant was not the person who
shot and killed Smith, and thus he should be acquitted of all charges. Alternatively,
defense counsel asked for jury instructions on voluntary manslaughter/heat of passion
(CALCRIM No. 570)3 and voluntary manslaughter/unreasonable self-defense

3
        CALCRIM No. 570 (Voluntary Manslaughter: Heat of Passion—Lesser Included
Offense (Pen. Code, § 192, subd. (a))) provides:
        “A killing that would otherwise be murder is reduced to voluntary manslaughter if
the defendant killed someone because of a sudden quarrel or in the heat of passion.
        “The defendant killed someone because of a sudden quarrel or in the heat of
passion if:
        “1. The defendant was provoked;
        “2. As a result of the provocation, the defendant acted rashly and under the
influence of intense emotion that obscured (his/her) reasoning or judgment;
        “AND
        “3. The provocation would have caused a person of average disposition to act
rashly and without due deliberation, that is, from passion rather than from judgment.
        “Heat of passion does not require anger, rage, or any specific emotion. It can be
any violent or intense emotion that causes a person to act without due deliberation and
reflection.
        “In order for heat of passion to reduce a murder to voluntary manslaughter, the
defendant must have acted under the direct and immediate influence of provocation as I
have defined it. While no specific type of provocation is required, slight or remote
provocation is not sufficient. Sufficient provocation may occur over a short or long
period of time.
        “It is not enough that the defendant simply was provoked. The defendant is not
allowed to set up (his/her) own standard of conduct. You must decide whether the
defendant was provoked and whether the provocation was sufficient. In deciding


                                             12
(CALCRIM No. 571).4 Defense counsel noted that immediately before he was shot,
Smith “got in a fighting stance, and said something to the effect of, ‘Are we going to do
this again?’ or ‘Let’s do this again.’” The trial court refused to give the requested
voluntary manslaughter instructions, concluding they were not supported by the evidence
or by defendant’s theory of the case. Defense counsel did not request, and the trial court
did not give, an instruction on second degree murder.



whether the provocation was sufficient, consider whether a person of average disposition,
in the same situation and knowing the same facts, would have reacted from passion rather
than from judgment.
        “[If enough time passed between the provocation and the killing for a person of
average disposition to ‘cool off’ and regain his or her clear reasoning and judgment, then
the killing is not reduced to voluntary manslaughter on this basis.]
        “The People have the burden of proving beyond a reasonable doubt that the
defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the
People have not met this burden, you must find the defendant not guilty of murder.”
4
        CALCRIM No. 571 (Voluntary Manslaughter: Imperfect Self-Defense or
Imperfect Defense of Another—Lesser Included Offense (§ 192)) provides in relevant
part:
        “A killing that would otherwise be murder is reduced to voluntary manslaughter if
the defendant killed a person because (he/she) acted in (imperfect self-defense/[or]
imperfect defense of another).
        “If you conclude the defendant acted in complete (self-defense/[or] defense of
another), (his/her) action was lawful and you must find (him/her) not guilty of any crime.
The difference between complete (self-defense/[or] defense of another) and (imperfect
self-defense/[or] imperfect defense of another) depends on whether the defendant’s belief
in the need to use deadly force was reasonable.
        “The defendant acted in (imperfect self-defense/[or] imperfect defense of another)
if:
        “1. The defendant actually believed that (he/she/[or] someone else/____________
<insert name of third party>) was in imminent danger of being killed or suffering great
bodily injury;
        “AND
        “2. The defendant actually believed that the immediate use of deadly force was
necessary to defend against the danger;
        “BUT
        “3. At least one of those beliefs was unreasonable.”


                                             13
        The only homicide instructions the jury received, therefore, were CALCRIM
Nos. 520 (First and Second Degree Murder With Malice Aforethought) and 521 (First
Degree Murder), as follows:
        “The defendant is charged in count 1 with murder, in violation of Penal Code
section 187.
        “To prove the defendant is guilty of this crime, the People must prove that:
        “No. 1, the defendant committed an act that caused the death of another person;
        “and, 2, when the defendant acted, he had a state of mind called malice
aforethought.
        “There are two kinds of malice aforethought, express malice and implied malice.
Proof of either is sufficient to establish the state of mind required for murder.
        “The defendant acted with express malice if he unlawfully intended to kill.
        “The defendant acted with implied malice if:
        “No. 1, he intentionally committed an act;
        “2, the natural and probable consequences of the act were dangerous to human
life;
        “3, at the time he acted, he knew his act was dangerous to human life;
        “and 4, he deliberately acted with conscious disregard for human life.
        “Malice aforethought does not require hate or ill will towards the victim. It is a
mental state that must be formed before the act that causes death is committed. It does
not require deliberation or the passage of any particular period of time.
        “If you decide the defendant committed murder, you must then decide whether it
is first or second degree. . . .[5]



5
       The trial court omitted the last sentence of CALCRIM No. 520, which says: “If
you decide that the defendant committed murder, it is murder of the second degree,
unless the People have proved beyond a reasonable doubt that it is murder of the first
degree as defined in CALCRIM No. [521].”




                                             14
       “The defendant is guilty of first degree murder if the People have proved that he
acted willfully, deliberately, and with premeditation. The defendant acted willfully if he
intended to kill. The defendant acted deliberately if he carefully weighed the
considerations for and against his choice and, knowing the consequences, decided to kill.
The defendant acted with premeditation if he decided to kill before completing the act
that caused death.
       “The length of time the person spends considering whether to kill does not alone
determine whether the killing was deliberate and premeditated. The amount of time
required for deliberation and premeditation may vary from person to person and
according to the circumstances. A decision to kill made rashly, impulsively, or without
careful consideration is not deliberate and calculated. On the other hand, a cold,
calculated decision to kill can be reached quickly. The test is the extent of the reflection,
not the length of time.
       “The People have the burden of proving beyond a reasonable doubt the killing was
first degree murder rather than a lesser crime. If the People have not met this burden, you
must find the defendant not guilty of first degree murder.”6


       B.     Legal Principles
              1.     Murder
       “‘Homicide is the killing of a human being by another . . . .”’ (People v. Antick
(1975) 15 Cal.3d 79, 87.) Criminal homicide is divided into two types: murder and
manslaughter. (People v. Beltran (2013) 56 Cal.4th 935, 941-942 (Beltran).)
       “Murder is the unlawful killing of a human being, or a fetus, with malice
aforethought.” (§ 187, subd. (a).) Malice aforethought may be express or implied.

6
       The court omitted the last six words of CALCRIM No. 521 (italicized): “The
People have the burden of proving beyond a reasonable doubt that the killing was first
degree murder rather than a lesser crime. If the People have not met this burden, you
must find the defendant not guilty of first degree murder and the murder is second degree
murder.”


                                             15
(§ 188.) “Express malice is an intent to kill. . . . Malice is implied when a person
willfully does an act, the natural and probable consequences of which are dangerous to
human life, and the person knowingly acts with conscious disregard for the danger to life
that the act poses.” (People v. Gonzalez (2012) 54 Cal.4th 643, 653.)
       “‘A verdict of deliberate and premeditated first degree murder requires more than
a showing of intent to kill. [Citation.] “Deliberation” refers to careful weighing of
considerations in forming a course of action; “premeditation” means thought over in
advance. [Citations.] “The process of premeditation . . . 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.]” (People v.
Halvorsen (2007) 42 Cal.4th 379, 419.)
       “‘“‘An intentional killing is premeditated and deliberate if it occurred as the result
of preexisting thought and reflection rather than unconsidered or rash impulse.’
[Citation.] A reviewing court normally considers three kinds of evidence to determine
whether a finding of premeditation and deliberation is adequately supported—preexisting
motive, planning activity, and manner of killing—but ‘[t]hese factors need not be present
in any particular combination to find substantial evidence of premeditation and
deliberation.’”’ (People v. Burney [(2009)] 47 Cal.4th [203,] 235.) These three factors,
however, are merely a framework for appellate review; they need not be present in some
special combination or afforded special weight, nor are they exhaustive. [Citations.]”
(People v. Brady (2010) 50 Cal.4th 547, 561-562.)
       “‘Second degree murder is the unlawful killing of a human being with malice, but
without the additional elements (i.e., willfulness, premeditation, and deliberation) that
would support a conviction of first degree murder. (§§ 187, subd. (a), 189; People v.
Nieto Benitez (1992) 4 Cal.4th 91, 102.)’ ([People v.] Hansen [(1994)] 9 Cal.4th [300,]
307.)” (People v. Chun (2009) 45 Cal.4th 1172, 1181.)




                                             16
              2.     Manslaughter
       Manslaughter is a lesser included offense of murder. (§ 192; People v. Thomas
(2012) 53 Cal.4th 771, 813 (Thomas).) The mens rea element required for murder is a
state of mind constituting either express or implied malice. A person who kills without
malice does not commit murder. (Beltran, supra, 56 Cal.4th at p. 942.)
       “Heat of passion is a mental state that precludes the formation of malice and
reduces an unlawful killing from murder to manslaughter. Heat of passion arises if, ‘“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.”’ (People v. Barton (1995) 12 Cal.4th 186, 201.) Heat of passion, then, is a
state of mind caused by legally sufficient provocation that causes a person to act, not out
of rational thought but out of unconsidered reaction to the provocation. While some
measure of thought is required to form either an intent to kill or a conscious disregard for
human life, a person who acts without reflection in response to adequate provocation
does not act with malice.” (Beltran, supra, 56 Cal.4th at p. 942, fn. omitted.)
       Heat of passion manslaughter has both objective and subjective elements. The
objective element looks to the conduct of a reasonable person in like circumstances:
“‘[N]o defendant may set up his own standard of conduct and justify or excuse himself
because in fact his passions were aroused, unless further the jury believe that the facts
and circumstances were sufficient to arouse the passions of the ordinarily reasonable
man. Thus, no man of extremely violent passion could so justify or excuse himself if the
exciting cause be not adequate, nor could an excessively cowardly man justify himself
unless the circumstances were such as to arouse the fears of the ordinarily courageous
man. Still further, while the conduct of the defendant is to be measured by that of the
ordinarily reasonable man placed in identical circumstances, the jury is properly to be
told that the exciting cause must be such as would naturally tend to arouse the passion of
the ordinarily reasonable man.’” (Beltran, supra, 56 Cal.4th at p. 950.) Additionally, the
defendant must “actually be motivated by passion in committing the killing. ‘[I]f


                                             17
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—“the assailant
must act under the smart of that sudden quarrel or heat of passion.” [Citation.]’
[Citations.] Thus, it is insufficient that one is provoked and later kills. If sufficient time
has elapsed for one’s passions to ‘cool off’ and for judgment to be restored, [California
law] provides no mitigation for a subsequent killing.” (Id. at p. 951.)


              3.      The Trial Court’s Duty to Instruct on Lesser Included Offenses
       “‘In criminal cases, even absent a request, the trial court must instruct on general
principles of law relevant to the issues raised by the evidence. (People v. Breverman
[(1998)] 19 Cal.4th [142,] 154.) This obligation includes giving instructions on lesser
included offenses when the evidence raises a question whether all the elements of the
charged offense were present, but not when there is no evidence the offense was less than
that charged. (Ibid.) The trial court must so instruct even when, as a matter of trial
tactics, a defendant not only fails to request the instruction, but expressly objects to its
being given. (Ibid.; see also People v. Barton[, supra,] 12 Cal.4th [at pp.] 196, 199-203
[trial court must instruct on heat-of-passion and unreasonable self-defense theories of
manslaughter, if supported by evidence, even when defendant objects on the basis that
such instructions would conflict with his defense].)’ (People v. Koontz (2002) 27 Cal.4th
1041, 1085.)” (People v. Moye (2009) 47 Cal.4th 537, 548-549 (Moye).) “The rule that
juries must be instructed on lesser included offenses ‘“prevents either party, whether by
design or inadvertence, from forcing an all-or-nothing choice between conviction of the
stated offense on the one hand, or complete acquittal on the other. Hence, the rule
encourages a verdict, within the charge chosen by the prosecution, that is neither ‘harsher
[n]or more lenient than the evidence merits.’”’ (People v. Smith (2013) 57 Cal.4th 232,
239-240 . . . .)” (People v. Banks (2014) 59 Cal.4th 1113, 1159-1160.)
       Because second degree murder is an offense “necessarily included within first
degree murder” (People v. Wickersham (1982) 32 Cal.3d 307, 326, disapproved on other
grounds in People v. Barton, supra, 12 Cal.4th at p. 201 (Barton)), and voluntary


                                              18
manslaughter is a lesser included offense of murder (Thomas, supra, 53 Cal.4th at
p. 813), the trial court had a duty to instruct on these theories “if there [was] substantial
evidence from which a jury could reasonably conclude that the defendant committed the
lesser, uncharged offense[s] but not the greater, charged offense” (ibid.). We apply the
independent or de novo standard of review to the failure by the trial court to instruct on
an assertedly lesser included offense. (People v. Cole (2004) 33 Cal.4th 1158, 1218.)


              4.      Prejudice
       Even if a trial court errs in failing to instruct, such failure does not automatically
require reversal. Instead, in a noncapital case such as this one, “the failure to instruct . . .
on a lesser included offense . . . is, at most, an error of California law alone, and is thus
subject only to state standards of reversibility.” (People v. Breverman, supra, 19 Cal.4th
at p. 165 (Breverman); Beltran, supra, 56 Cal.4th at p. 955.) Under that standard, a
defendant’s conviction may be reversed “only if, ‘after an examination of the entire
cause, including the evidence’ (Cal. Const., art. VI, § 13), it appears ‘reasonably
probable’ the defendant would have obtained a more favorable outcome had the error not
occurred ([People v.] Watson [(1956)] 46 Cal.2d 818, 836).” (Breverman, supra, at
p. 178.)7 “‘Such posttrial review focuses not on what a reasonable jury could do, but
what such a jury is likely to have done in the absence of the error under consideration. In
making that evaluation, an appellate court may consider, among other things, whether the
evidence supporting the existing judgment is so relatively strong, and the evidence

7
        Defendant contends that the trial court’s failure to instruct on second degree
murder violated his federal due process rights and, thus, requires reversal unless the error
was harmless beyond a reasonable doubt. Not so. The case on which defendant relies for
this proposition, Beck v. Alabama (1980) 447 U.S. 625, 632-635, was an appeal from a
sentence of death. Our Supreme Court has held, however, that federal law has no effect
on the appropriate standard of California appellate review in a case such as this one—a
“noncapital case [where] defendant challenges his otherwise valid conviction of a
charged offense on grounds the trial court failed in its sua sponte duty under California
law to provide instructions, correct and complete, on all lesser included offenses.”
(Breverman, supra, 19 Cal.4th at p. 172, italics added and original italics omitted.)


                                               19
supporting a different outcome is so comparatively weak, that there is no reasonable
probability the error of which the defendant complains affected the result. Accordingly, a
determination that a duty arose to give instructions on a lesser included offense, and that
the omission of such instructions in whole or in part was error, does not resolve the
question whether the error was prejudicial. Application of the Watson standard of
appellate review may disclose that, though error occurred, it was harmless.’ (Breverman,
supra, 19 Cal.4th at pp. 177-178, fn. omitted.)” (Moye, supra, 47 Cal.4th at p. 556; see
also Beltran, supra, 56 Cal.4th at p. 955 [“[D]efendant argues the standard for evaluating
federal constitutional errors applies here, i.e., ‘before a federal constitutional error can be
held harmless, the court must be able to declare a belief that it was harmless beyond a
reasonable doubt.’ (Chapman v. California (1967) 386 U.S. 18, 24.) He asserts the
ambiguity introduced into the instructions here deprived him of his federal constitutional
rights to a jury trial and due process. We have previously rejected this argument. In
noncapital cases, ‘the rule requiring sua sponte instructions on all lesser necessarily
included offenses supported by the evidence derives exclusively from California law.’
[Citation.] As such, ‘in a noncapital case, error in failing sua sponte to instruct, or to
instruct fully, on all lesser included offenses and theories thereof which are supported by
the evidence must be reviewed for prejudice exclusively under [People v.] Watson.’
[Citations.]”].)


       C.      The Trial Court Did Not Prejudicially Err in Failing to Instruct the Jury on
               Second Degree Murder and Voluntary Manslaughter
       Defendant urges that the evidence supported the lesser included offenses of second
degree murder and voluntary manslaughter, and thus that the trial court erred in failing to
instruct on these theories. The Attorney General disagrees, contending that there was no
substantial evidence that would have warranted an instruction on either theory.8

8
      The Attorney General concedes that the trial court erred in telling the jury that if it
decided defendant committed murder, it must determine whether it was murder in the


                                              20
       As we have said, instructional error warrants reversal only if it is reasonably
probable that the defendant would have received a more favorable result had the jury
been properly instructed. For the reasons that follow, we conclude that even if the jury
had been instructed on second degree murder and manslaughter, it is not reasonably
probable that it would have acquitted defendant or convicted him of a lesser offense.
Therefore, we assume without deciding that the trial court erred in failing to instruct the
jury on second degree murder and manslaughter, and move directly to the issue of
prejudice.


              1.     The Strength of the Evidence
       Defendant contends there was substantial evidence that he did not shoot Smith
with premeditation and deliberation, “but instead acted without premeditation and
deliberation—out of anger and humiliation arising from their recent confrontation. The
two men had two verbal confrontations, including one that occurred in front of Scott’s
little daughter. The two men also had a physical fight that left Scott the bloodied loser.
Even the prosecutor argued that Smith had humiliated Scott in public. This sequence of
events and evidence did not establish a plan to kill Smith. The argument and fight
between Scott and Smith suggested Scott shot Smith on the spur of [the] moment and
without premeditation.” (Internal record reference omitted.) Thus, defendant urges, the
trial court erred in failing to instruct sua sponte on second degree murder and voluntary
manslaughter.
       As discussed above, in evaluating prejudice an appellate court may consider,
among other things, “‘whether the evidence supporting the existing judgment is so
relatively strong, and the evidence supporting a different outcome is so comparatively
weak, that there is no reasonable probability the error of which the defendant complains
affected the result. . . .’ (Breverman, supra, 19 Cal.4th at pp. 177-178, fn. omitted.)”


first or second degree. She urges that the omission was harmless, however, because there
was no evidence to support the giving of a second degree murder instruction.


                                             21
(Moye, supra, 47 Cal.4th at p. 556.) In the present case, the evidence of premeditation
and deliberation was strong. The undisputed evidence was that prior to the shooting,
Smith bested the shooter in a fistfight. The shooter then left the scene of the fistfight,
changed some of his clothing, and obtained a semiautomatic pistol. Ten to 15 minutes
later, he returned and, without speaking to Smith, shot him multiple times at close range.
When Smith fell, the shooter ran from the scene and toward an apparent getaway vehicle,
which immediately exited the shopping center parking lot.
       In contrast, the evidence supporting heat of passion or provocation was
comparatively weak. Because the defense theory was one of mistaken identity, the
defendant did not present any evidence placing heat of passion at issue, although he did
briefly argue the issue. The undisputed evidence was that the fight between Smith and
the shooter was not particularly violent—although the shooter suffered a bloody nose, he
apparently was not seriously hurt. There was, moreover, no evidence about the shooter’s
affect or statements immediately before or after the shooting, from which the jury could
conclude that the shooter’s reason “‘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.’” (Barton, supra, 12 Cal.4th at p. 201.) Given the strong evidence of
premeditation and the comparatively weak evidence of lack of
premeditation/provocation, a different result was not reasonably probable.


              2.      The Jury’s Findings
       In considering prejudice, we consider not only the strength of the evidence
presented at trial, but also the jury’s evaluation of that evidence as expressed in its
findings. If such findings are inconsistent with conviction of a lesser included offense,
the failure to instruct on such offense is not prejudicial.
       Our Supreme Court illustrated this principle in Moye, supra, 47 Cal.4th 537.
There, the defendant was accused of bludgeoning his victim to death with a baseball bat.
At the defense’s request, the trial court instructed the jury on justifiable homicide based


                                              22
on reasonable self-defense and the imperfect (or unreasonable) self-defense theory of
voluntary manslaughter; the court refused, however, to instruct the jury on a sudden
quarrel/heat of passion theory of voluntary manslaughter. The jury rejected justifiable
homicide and imperfect self-defense and convicted defendant of second degree murder.
(Id. at pp. 540-541.)
       The Court of Appeal reversed, holding that the failure to instruct on sudden
quarrel/heat of passion was prejudicial error. The Supreme Court disagreed, concluding
that substantial evidence did not support a sudden quarrel/heat of passion theory; in the
alternative, it concluded that instructional error was not prejudicial. With regard to
prejudice, the court explained that it was not reasonably probable in light of its other
findings that the jury would have found the killing to have occurred in the heat of
passion:
       “In employing the Watson standard of review here, it is reasonable to assume the
jury considered all of the defense evidence bearing on defendant’s state of mind and the
question whether he harbored malice when it entertained and rejected his claims of
reasonable and unreasonable (or imperfect) self-defense. Ruben [victim’s friend]
testified that despite his and [victim’s] best efforts to avoid defendant, defendant spotted
them, sped toward them as if trying to run them down, then abruptly stopped the car and
jumped out, along with [defendant’s friends], leaving the vehicle in the middle of the
street with its doors open, as they began chasing the two. Ruben testified he heard
defendant say, ‘Come on, let’s go, let’s get these motherfuckers.’ [Victim] and Ruben
quickly scaled a chain link fence. Ruben testified he thought he saw [victim] drop his bat
at the beginning of the chase as he was going over the fence. Defendant immediately
followed [victim] over the fence and chased him a considerable distance before cornering
him in a field or large backyard.
       “Ruben and [victim] became separated during the chase. When Ruben heard
defendant and the others leaving the area he looked for [victim] and found him facedown
on the ground, bleeding badly, with his breathing labored. His front upper teeth were
broken off, as if he had been hit hard in the mouth, and his ‘brains [were] hanging out of


                                             23
his head.’ An autopsy revealed that [victim] sustained at least four blows to the head and
three more to other areas of his body. In one area of his head, the force of a blow was so
strong it shattered his skull into multiple small fragments. Moments after fleeing the
crime scene, defendant had enough sense and composure to dispose of the bloodied
murder weapon in a nearby storm drain.
       “Once the jury rejected defendant’s claims of reasonable and imperfect self-
defense, there was little if any independent evidence remaining to support his further
claim that he killed in the heat of passion, and no direct testimonial evidence from
defendant himself to support an inference that he subjectively harbored such strong
passion, or acted rashly or impulsively while under its influence for reasons unrelated to
his perceived need for self-defense. To the contrary, the evidence established beyond a
reasonable doubt that defendant located the victim and Ruben the morning after the
fistfight, enlisted the assistance of [his friends], chased the victim over a chain link fence
and through a field, caught him and bludgeoned him to death with a baseball bat, after
which defendant disposed of the bloodied murder weapon in a nearby storm drain.
Defendant’s claim—that the victim kicked his car before trying to run for safety, and that
he only chased the victim to ‘see where he was going’ so he could report the alleged car-
kicking incident to the police—was ultimately rejected by the jury when it considered
such evidence and found that he had killed with malice.
       “Moreover, the jury having rejected the factual basis for the claims of reasonable
and unreasonable self-defense, it is not reasonably probable the jury would have found
the requisite objective component of a heat of passion defense (legally sufficient
provocation) even had it been instructed on that theory of voluntary manslaughter.
       “Upon examining the entire cause, including the evidence (Cal. Const., art. VI,
§ 13), we conclude it is not ‘reasonably probable’ defendant would have obtained a more
favorable outcome at trial had a heat of passion instruction been given. (Watson, supra,
46 Cal.2d at p. 836.)” (Moye, supra, 47 Cal.4th at pp. 556-558, fns. omitted.)
       The court similarly concluded in People v. Beames (2007) 40 Cal.4th 907
(Beames), holding that any error with regard to omitted instructions was harmless. The


                                              24
court explained: “‘“[E]rror in failing to instruct the jury on a lesser included offense is
harmless when the jury necessarily decides the factual questions posed by the omitted
instructions adversely to defendant under other properly given instructions.”’ (People v.
Chatman (2006) 38 Cal.4th 344, 392; [People v.] Horning [(2004)] 34 Cal.4th [871,] 906;
see People v. Sedeno (1974) 10 Cal.3d 703, 721, disapproved on other grounds in People
v. Breverman, supra, 19 Cal.4th at p. 165.) Here, the jury was properly instructed that a
torture-murder special circumstance requires the intent to kill. [Fn. and citations
omitted.] When the jury found this special circumstance true, it necessarily determined
that defendant intended to kill [victim] when he tortured her. Thus, there was no
prejudice resulting from any erroneous failure to instruct on second degree felony murder
[citation] or involuntary manslaughter [citation]. Likewise, in finding the killing was
intentional, the jury necessarily found express, not implied, malice. [Citation.]
Accordingly, any error in failing to instruct on implied-malice second degree murder also
was harmless.” (Beames, supra, 40 Cal.4th at p. 928.)
       Applying the principles articulated in Moye and Beames to the present case, we
conclude that the failure to instruct on second degree murder and voluntary manslaughter,
even if erroneous, was not prejudicial. Much of the prosecution’s evidence went to
proving that defendant committed the murder for the benefit of the Franklin Square Crips,
of which defendant was a member. In this regard, Officer Coughlin opined that although
the fight between defendant and Smith began as an individual dispute, defendant’s
decision to kill Smith was gang related. He said: “[B]oth gang members almost have to
represent their gang[] [a]fter the fight[.] [W]hen the Crip, it sounds like, loses the fight,
goes and gets his gun, he’s — he’s putting in work for his gang. He’s showing the
credibility of the gang. And he’s following gang codes where, if you get punked, you can
either go home and be considered soft or you can go back, escalate the situation, take it
one step further, and show what your hood’s made of. And that’s what it seemed like he
did here by killing [Smith].” (Italics added.)
       On cross-examination, defense counsel asked Officer Coughlin if the shooting
could have happened for non-gang-related reasons—i.e., because the shooter “may have


                                              25
just been angry [he] lost the fight.” Officer Coughlin said that in his opinion, the
shooting could not have been unrelated to defendant’s and Smith’s gang affiliations.
       Both the prosecution and defense returned in closing argument to the subject of
motive for the shooting. The prosecutor argued that defendant shot Smith to enhance the
credibility of his gang:
       “[Defendant] decided he was going to live up to his real, true name of ‘Blood
Killer,’ and he was going to do just that. He was going to go back there, and he was
going to kill a Blood. And he was going to do it because he had been disrespected, just
minutes away from where his gang — the area where his gang calls home. And so he
was going to come back and retaliate, just like gangsters do. . . . [N]ow, not only has
Mr. Scott lost a fight in a very public place, a food courtyard — you have Popeye’s,
Chinese Express, Subway. You have Gustavo [Magana] talking about how he had a line
of customers. This place is full of people, and it’s 3:30 in the afternoon. And a Franklin
Square Crip, a credible gang — well, you just can’t have that. You can’t be humiliated in
front of the public. You can’t let your gang be seen as soft. So once Louis [Smith] gives
him an excuse, once he gives him something he can hang his hat on, and he says, ‘This is
Bounty Hunters,’ it’s on.”
       The defense’s closing argument was devoted almost entirely to arguing that the
prosecution had not proven defendant was the shooter. The defense also briefly argued
motive, urging that the suspect shot Smith not to benefit the gang, but because he was
enraged by the public beating he had suffered at Smith’s hands:
       “Why bring in all of this gang stuff? This is not a gang incident. This is two guys
who get into a fight. And, with all due respect, somebody’s saying, ‘Let me holler at
you,’ that’s not trying to be a gangster. Whoever did this probably got their ass kicked
and came back angry. . . . I don’t believe that that is a gang shooting. That is someone
getting their ass kicked and coming back because they’re upset somebody got the better
of them.”
       After deliberating, the jury rejected the defendant’s view of the evidence. It found
defendant was the shooter and found true the special finding that Smith’s murder was


                                             26
committed “for the benefit of, at the direction of and in association with a criminal street
gang with the specific intent to promote, further and assist in criminal conduct by gang
members within the meaning of [P]enal [C]ode section 186.22[, subdivision] (b)(1)(C).”9
       In employing the Watson standard of review here, it is reasonable to assume that
the jury considered all of the evidence bearing on defendant’s state of mind when it
concluded that defendant shot Smith “for the benefit of . . . any criminal street gang” and
“with the specific intent to promote, further, or assist in any criminal conduct by gang
members.” (§ 186.22, subd. (b)(1), italics added.) In doing so, it necessarily rejected the
defense version of the shooting, in which the shooter acted in the heat of passion after
having been publicly beaten in a fistfight. Instead, the jury accepted the prosecutor’s
version, which posited that defendant made a calculated decision to retrieve his gun and
return to the victim’s location in order to retaliate for the disrespect shown his gang.
       Having rejected the factual basis for the theory urged by the defense—that
defendant was not the shooter and, in any event, the shooting was motivated by passion
and rage, not a desire to benefit his street gang—it is not reasonably probable that the
jury would have returned a second degree murder or voluntary manslaughter verdict.
Indeed, it is difficult for us to conceive how a jury could conclude that the defendant left
the scene of the fistfight, retrieved his gun, and then returned to the shopping center to
commit an execution-style murder for the benefit of his criminal street gang and with the
specific intent to promote criminal conduct by gang members—but without deliberation
or premeditation. That is, on the particular and undisputed facts of this case, which
include the shooter leaving the victim’s location and then returning 10 to 15 minutes later
with a semiautomatic weapon, we do not believe it likely that a jury would find that the
defendant formed the specific intent to shoot and kill Smith in order to “promote, further,
or assist” criminal conduct by members of his gang, but without having engaged in

9
        Section 186.22, subdivision (b)(1) provides sentence enhancements for “any
person who is convicted of a felony committed for the benefit of, at the direction of, or in
association with any criminal street gang, with the specific intent to promote, further, or
assist in any criminal conduct by gang members . . . .”


                                             27
sufficient deliberation to constitute first degree murder. Accordingly, even if the trial
court erred in failing to instruct on second degree murder and voluntary manslaughter,
any such error was not prejudicial and, therefore, provides no basis for reversal.


III.   The Trial Court’s First Degree Murder Instruction Was Not Prejudicially
       Erroneous
       The trial court instructed the jury concerning first degree murder using CALCRIM
Nos. 520 (First and Second Degree Murder With Malice Aforethought) and 521 (First
Degree Murder). Defendant contends that these instructions were erroneous because they
failed to tell jurors that the prosecution was required to affirmatively prove the absence of
provocation to prove defendant guilty of first degree murder. Further, he contends, the
alleged omission relieved the prosecution of the burden of proving each element of
murder beyond a reasonable doubt, and thus constituted federal constitutional error.
       We do not agree. As an initial matter, our Supreme Court has never held that
where there is evidence of heat of passion, the jury must be instructed that an intentional,
unlawful killing is without malice if done in a heat of passion, and thus constitutes not
murder but voluntary manslaughter.10 In any event, there was insufficient evidence of


10
        Justice Kennard twice has suggested in dissenting opinions that because of the
manner in which California has structured the relationship between murder and voluntary
manslaughter, “the complete definition of malice is the intent to kill or the intent to do a
dangerous act with conscious disregard of its danger plus the absence of both heat of
passion and unreasonable self-defense.” (Breverman, supra, 19 Cal.4th at pp. 189-190
(dis. opn. of Kennard, J.).) Thus, she has said, where there is sufficient evidence of heat
of passion to support a voluntary manslaughter verdict, “murder instructions that fail to
inform the jury it may not find the defendant guilty of murder if heat of passion is present
are incomplete instructions on the element of malice.” (Ibid.) Further, “when a
defendant is charged with murder and there is sufficient evidence to support a conviction
for voluntary manslaughter on a ‘heat of passion’ theory, failure to instruct on that theory
violates the defendant’s federal constitutional rights to a jury trial and to due process of
law.” (Id. at p. 187; see also Moye, supra, 47 Cal.4th at p. 564 (dis. opn. of Kennard, J.)
[“In my view, . . . the trial court’s failure to instruct on the heat of passion theory of
voluntary manslaughter [is] federal constitutional error”].) Justice Kennard’s view has


                                             28
heat of passion induced by adequate provocation to require such an instruction. As we
have said, the undisputed evidence was that the fight between Smith and defendant was
not particularly violent—although the shooter suffered a bloody nose, he apparently was
not seriously hurt. The fight thus did not satisfy the objective element of provocation
because it was not such as to “render an ordinary person of average disposition ‘liable to
act rashly or without due deliberation and reflection, and from this passion rather than
from judgment.’” (Beltran, supra, 56 Cal.4th at p. 957; see also Moye, supra, 47 Cal.4th
at p. 551 [“evidence of the fight on Saturday evening in which [victim] and defendant
were both involved did not itself constitute legally sufficient provocation to require
instruction on sudden quarrel/heat of passion voluntary manslaughter in connection with
the killing of [victim]”].) Neither was there substantial evidence of the subjective
element of provocation because the evidence presented did not establish that defendant
“‘actually, subjectively, kill[ed] under the heat of passion.’” (Moye, supra, at p. 554.)
There was no evidence about the shooter’s affect or statements immediately before or
after the shooting, from which the jury could conclude that the shooter’s reason “was
obscured or disturbed by passion.” (Barton, supra, 12 Cal.4th 201.) A provocation
instruction therefore was not required. (See Moye, supra, 47 Cal.4th at p. 554 [no error
in failing to give provocation instruction: “There was insubstantial evidence at the close
of the evidentiary phase to establish that defendant ‘actually, subjectively, kill[ed] under
the heat of passion.’ [Citations.] . . . [N]o principle of law required the trial judge below
to disregard the evidence in order to find that the jury should consider whether defendant
subjectively killed in the heat of passion, when no substantial evidence supported that
theory of manslaughter, and the evidence actually introduced on the point—the
defendant's own testimony—was to the contrary.”].)
       Finally, even if it was error for the trial court to fail to instruct on heat of passion,
such error was harmless, as discussed in part II(C), ante.


never been adopted by a majority of the Supreme Court, however, and thus we do not
apply it in this case. (See, e.g., Breverman, supra, 19 Cal.4th at p. 170, fn. 19.)


                                               29
                                 DISPOSITION


     The judgment is affirmed.


     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                          COLLINS, J.

We concur:




     EPSTEIN, P. J.




     WILLHITE, J.




                                     30
