Filed 5/11/16 P. v. Alvarez CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069040
         Plaintiff and Respondent,
                                                                             (Super. Ct. No. BF151478A)
                   v.

JAMES ALVAREZ,                                                                           OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kern County. Thomas S.
Clark, Judge.
         Tracy A. Rogers, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Michael P. Farrell, Assistant Attorney
General, Julie A. Hokans and Robert Gezi, Deputy Attorneys General, for Plaintiff and
Respondent.
                                                        -ooOoo-
         James Alvarez was prosecuted for attempting to kill his girlfriend by running her
over with a car. When the matter was submitted to a jury, the trial court, over objections
from both the prosecutor and defense counsel, provided instructions on the crime of
attempted voluntary manslaughter as a lesser included offense of attempted murder. The
jury convicted Alvarez of attempted voluntary manslaughter and also found him guilty of
assault with a deadly weapon and resisting arrest. He was sentenced to a determinate
term of 16 years in prison.
       Alvarez contends that the trial court erroneously precluded an eyewitness from
giving opinion testimony regarding whether or not he actually tried to hit the victim with
an automobile. He further alleges there was no showing of provocation to support a
lesser included offense instruction, and thus seeks reversal of the attempted voluntary
manslaughter conviction on grounds of insufficient evidence. The first claim involves an
exercise of discretion by the trial court, and Alvarez does not carry his burden of showing
error and prejudice. With respect to the latter claim, we conclude that although evidence
of provocation was missing, the outcome of the appeal is governed by the California
Supreme Court’s holdings in People v. Powell (1949) 34 Cal.2d 196 (Powell) and
People v. Lee (1999) 20 Cal.4th 47 (Lee). Those cases stand for the principle that a
defendant may not complain of an error inuring to his or her benefit, “including the
giving of correct, but inapplicable, instructions and return of a verdict of an offense less
than that which the evidence shows.” (Lee, supra, 20 Cal.4th at p. 57.) Accordingly, we
affirm the judgment.
                    FACTUAL AND PROCEDURAL BACKGROUND
       The Kern County District Attorney charged Alvarez by information with
attempted murder (Pen. Code,1 §§ 187, 664; Count 1), assault with a deadly weapon
(§ 245, subd. (a)(1); Count 2), making criminal threats (§ 422; Count 3) and
misdemeanor resisting arrest (§ 148, subd. (a); Count 4). He was also accused of having
suffered a prior strike and serious felony conviction (§§ 667, subds. (a), (b)-(i), 1170.12,
subds. (a)-(d)), and having served a prior prison term (§ 667.5, subd. (b)). Count 3 was

       1   Unless otherwise specified, all further statutory references are to the Penal Code.


                                               2.
later dismissed due to the prosecution’s inability to produce the complaining witness.
The case went to trial in January 2014.
Prosecution Evidence
       On August 3, 2013, a 911 dispatcher for the Kern County Sheriff’s Office spoke to
an anonymous caller who had witnessed “some guy beating up some lady” inside of a
Ford Taurus at the corner of Lake Street and Mt. Vernon Avenue in Bakersfield. The
perpetrator was described as a bald Hispanic male with tattoos on his head, wearing a
white tank top shirt. Deputy Matt Costamagana was dispatched to investigate the
reported incident. He thereafter observed the subject events from his patrol vehicle while
stopped at a traffic light at the intersection of Mt. Vernon Avenue and Niles Street.
       Deputy Costamagana testified to seeing a Ford Taurus “jump the center median
going west across four lanes of traffic on Mt. Vernon from Lake Street” at an estimated
speed of 35 to 40 miles per hour. The Taurus proceeded to drive the wrong way up the
southbound lanes of Mt. Vernon Avenue, then veered toward a female pedestrian located
in the raised median that divided the opposing lanes of traffic. The woman, later
identified as April Garcia, was heading northbound towards Monterey Street. The driver
of the Taurus “again jumped the center median[,] aiming the center of the vehicle
towards Ms. Garcia,” and came within inches of striking her. She leapt out of the way of
the oncoming car, which Deputy Costamanga believed had been necessary in order for
her to avoid being hit.
       Ms. Garcia further reacted by running “full sprint” across the road to a sidewalk
on the eastern side of Mt. Vernon Avenue. Next, according to Deputy Costamagana, the
Taurus “turned directly east” until it was “aimed directly center of Ms. Garcia,” then
accelerated and “attempted to hit her again.” Ms. Garcia jumped out of the way a second
time, and the vehicle came to rest with its front two wheels on the sidewalk in the area
where she had been standing.



                                             3.
       Deputy Costamagana activated the lights and siren of his patrol car at “about the
second time the vehicle tried to strike Ms. Garcia,” and was already in pursuit when the
Taurus ran up onto the sidewalk. The deputy was in the process of turning onto
Monterey Street when he saw the driver of the Taurus exit the vehicle. He noted the man
was bald, “very heavily tattooed [on] his head, shoulders, [and] arms,” and was wearing a
sleeveless white shirt. Deputy Costamagana identified Alvarez in court as the driver of
the Taurus. He also testified that Alvarez fled the scene on foot, ignoring his commands
to stop.
       Sheriff’s deputies located and arrested Alvarez the next day. When questioned
about the events of the previous evening, Alvarez explained that he and April Garcia had
argued about her not wanting to get his name tattooed on her arm. He denied striking
Ms. Garcia, but admitted to pulling her hair while she was driving. Regarding his
subsequent operation of the vehicle, the deputy who interviewed Alvarez testified that he
said he “didn’t try to actually run her over.” Rather, “she had gotten in the way twice
while he was trying to get away from deputies.”
       The victim did not testify at trial. Relevant to her absence was an audio recording
of a jailhouse phone call between Alvarez and an unidentified woman, which was played
for the jury during the prosecution’s case-in-chief. Pertinent excerpts from the recorded
conversation are as follows:
              Alvarez:      They got me out there at April’s.
              Female:       Uh, what’d you go to April’s for?
              Alvarez:      I don’t know.
              Female:       Wow.
              …
              Alvarez:      They got me for attempted murder and, uh, spousal.
              Female:       Okay that, what, the cops seen you do all this stuff, try and
                            run her over and shit?

                                            4.
              Alvarez:      But it, yeah, but it’s up to, uh, April if she’s going to press
                            charges. . . . So I don’t know if she’s going to press charges
                            on me or not.
              …
              Alvarez:      . . . Tell her to press no charges on me.
              Female:       Oh, like she’s really going to listen.
              Alvarez:      Well I don’t know you got to find out and ask her you,
                            (inaudible). All right?
              Female:       (Inaudible.)
              Alvarez:      So I don’t know but you got to ask her though (inaudible), all
                            right?
              Female:       Yeah.
              Alvarez:      I know if she does that’ll be great. I’ll be out. I’ll be going
                            home.
              Female:       I don’t even know why you stoop your ass to do stupid
                            (inaudible) to begin with, like you already know.
              Alvarez:      Yeah I know. So just talk to her and let, and just tell [her]
                            not to do it.
Defense Evidence
       An investigator for the Kern County Public Defender testified in regards to
photographs she had taken in an apparent effort to depict Deputy Costamagana’s vantage
point from the corner of Mt. Vernon Avenue and Niles Street. The photographs were
admitted into evidence. The defense also elicited testimony from Karina Dominguez,
who had witnessed portions of the incident from her place of employment at the corner of
Mt. Vernon Avenue and Lake Street.
       Ms. Dominguez recalled seeing a man and woman arguing inside of a sedan on
Lake Street. She could not tell if the couple was engaged in a physical altercation, but

                                             5.
she heard the woman screaming and then saw her exit the vehicle and run to the center
median of Mt. Vernon Avenue. The driver of the sedan “tried to go toward where the
woman was,” i.e., “[h]e started coming out of Lake Street towards Mt. Vernon going
towards Niles Street and then the car got on top of the median… When the woman saw
that, she jumped toward the right side.” When asked to clarify her observations, the
witness said, “She was in the median. The car came. She jumped to the left side. The
car jumped to the left side. Then she jumped to the right side and the car jumped to the
right side following the woman.”
         Although her account was generally consistent with the testimony of Deputy
Costamagana, Ms. Dominguez claimed to have seen the victim try to reenter the sedan on
the passenger side after it had “jumped the median” for a second time. She testified that
the vehicle came to a stop in a “diagonal” position on Mt. Vernon Avenue (making no
mention of it going onto the sidewalk), but with the caveat that she could “barely recall”
those details. The witness acknowledged on cross-examination that her sightlines had
been partially obstructed by various objects and her memory of the events was less than
clear.
Verdict and Sentencing
         The jury convicted Alvarez of attempted voluntary manslaughter as a lesser
included offense of attempted murder. He was found guilty as charged on the remaining
counts. In a bifurcated bench trial, the trial court found the prior conviction allegations to
be true and thereafter dismissed the prior prison term allegations at the request of the
prosecution. Alvarez was sentenced to the upper term of five years six months
imprisonment for attempted voluntary manslaughter, which was doubled to 11 years
because of the prior strike and further enhanced by a consecutive five-year term for the
prior serious felony conviction. He received a stayed sentence pursuant to section 654
for the conviction of assault with a deadly weapon, and credit for time served on a
concurrent term imposed for the resisting arrest misdemeanor.

                                              6.
                                        DISCUSSION
Disputed Evidentiary Rulings
       Alvarez presents related claims of erroneously excluded evidence and judicial
bias. He argues the trial court erred by prohibiting defense witness Karina Dominguez
from expressing an opinion about his state of mind at the time of the incident. Alvarez
further contends that there is a federal constitutional dimension to this issue because the
trial court permitted Deputy Costamagana to express opinions regarding the element of
intent, and thus applied a “double standard” which favored the prosecution and violated
his right to present a defense and receive a fair trial.
Background
       The following exchanges occurred during the prosecution’s direct examination of
Deputy Costamagana:
       Prosecutor:           What was April Garcia doing when the vehicle jumped the
                             median the second time?
       Costamagana:          She was actually standing in the center of it and I believe she
                             ended up having to jump to her left, basically jumping east to
                             get out of the way of the vehicle.
       Defense Counsel:      Objection. Speculation. Move to strike.
       Trial Court:          What’s the basis of the objection?
       Defense Counsel:      Speculation.
       Trial Court:          Overruled.
       …
       Prosecutor:           After Ms. Garcia sprinted to the sidewalk on the east side of
                             Mt. Vernon, what did the Ford Taurus do?
       Costamagana:          It turned directly east and was aimed directly center of
                             Ms. Garcia and attempted to hit her again.
       Defense Counsel:      Objection. Speculation.

                                               7.
       Trial Court:         It’s clear it’s based on his observation. Overruled.
       The disputed rulings made during direct examination of Karina Dominguez are as
follows:
       Defense Counsel:     You’ve described a lot. The car was going toward the
                            woman. You described the manner in which it was going.
                            Was it going toward like it was trying to hit her or what was it
                            trying to do?
       Prosecutor:          Objection. Calls for speculation. Foundation.
       Trial Court:         Sustained on both grounds.
       Defense Counsel:     What was the vehicle trying to do?
       Trial Court:         Same ruling. Sustained on both grounds.
       Defense Counsel:     When you say it was going toward her, what do you mean?
       Dominguez:           Following her.
       Defense Counsel:     Describe how it was following her.
       Dominguez:           I don’t understand the question.
       Defense Counsel:     Was it trying to hit her?
       Prosecutor:          Objection. Same objection.
       Trial Court:         Sustained. She can’t testify as to what someone else’s intent
                            was.
       Defense Counsel:     What did it appear to you the car was doing?
       Prosecutor:          Same objection, Your Honor.
       Trial Court:         Sustained.
       On cross-examination, Ms. Dominguez acknowledged she had been “too far away
to tell how close the vehicle was when it drove toward the [victim].” The prosecutor then
asked her to confirm that she previously told his investigator she could not discern
whether the victim had to jump out of the way of the car (to avoid being hit). When the
witness replied, “I don’t recall,” the prosecutor asked, “As you sit here today, can you

                                             8.
recall if the female had to jump out of the way of the car or do you not know?” At that
point the trial court interrupted: “I’ll interpose my own objection to that question. It
seems to me you’re asking her to comment on the state of mind.”
       During a break in questioning, outside the presence of the jury, defense counsel
accused the trial court of making inconsistent rulings on the admissibility of opinion
testimony: “The People were allowed to [introduce] testimony about my client’s state of
mind by a trained law enforcement officer. When I tried to do it, albeit ineloquently, the
Court prevented me. I lodged the exact same objection as [the prosecutor], exact same.
The Court overruled my objections. I objected numerous times… [T]he officer was
allowed to testify that the car turned eastbound and tried to hit her, and I object and the
Court overrules my objection and I’m not allowed to get into it with a lay witness, it’s
fundamentally unfair to my client’s defense. It violates his 14th Amendment due process
rights. It allows him not to present a defense.”
       The trial court disagreed with defense counsel, stating, “I think I’ve been
consistent in that regard but that’s the reason we have a record and if I’m incorrect, the
record is preserved. The distinction, as I recall it, is I thought the questions asked of the
officer were not directed and would not reasonably be understood by the jury to be a
comment on the intent of the driver, whereas I thought that some of your questions were
phrased in such a way as to indicate that the response would be a comment on the intent
of the driver. I think in both instances I tried to make it clear on the record in front of the
jury that neither witness is competent to testify as to the intent of the driver. I did not – I
thought I made it clear both at sidebar and immediately thereafter when you’re on the
record that you can rephrase the question as long as it was clear that you were eliciting
her observation as opposed to her speculation of the intent of the driver.”
       Later, while instructing the jury, the trial court gave an admonishment: “During
the trial certain evidence was admitted for a limited purpose. You may consider that
evidence only for that purpose and no other. Deputy Costamagana and Karina

                                               9.
Dominguez testified about their observations of the vehicle in question. They are not
able to give testimony as to what was in the driver’s mind at the time of their
observations. Any opinions that they may or may not have about the driver’s state of
mind are not to be considered by you for any purpose. Their testimony on that point is
relevant and admitted only for the purpose of informing you what they observed. Any
conclusions to be drawn from their observations are up to the jury and the jury alone to
make.”
Forfeiture
       Respondent asserts that Alvarez forfeited his claims regarding the questioning of
Ms. Dominguez on direct examination by failing to make an offer of proof as to how she
would have responded had the prosecutor’s objections been overruled. Respondent also
points out that the trial court’s sua sponte objection to testimony concerning whether the
victim needed to jump out of the way of the oncoming car happened on cross-
examination and without protest from defense counsel, thereby foreclosing appellate
review of any related claims. We agree with the second argument, but not the first.
       “As a condition precedent to challenging the exclusion of proffered testimony,
Evidence Code section 354, subdivision (a), requires the proponent make known to the
court the ‘substance, purpose, and relevance of the excluded evidence … .’ ” (People v.
Ramos (1997) 15 Cal.4th 1133, 1178.) The necessary information may be determined
“by the questions asked, an offer of proof, or by any other means.” (Evid. Code, §354,
subd. (a).) However, “even where the question is relevant on its face, the appellate court
must know the ‘substance’ or content of the answer in order to assess prejudice.
[Citation.] This requirement is met only where the wording or context of the question
makes the expected answer clear, or where the proponent of the evidence makes an offer
of proof.” (People v. Whitt (1990) 51 Cal.3d 620, 648; accord, People v. Anderson
(2001) 25 Cal.4th 543, 580.)



                                            10.
       Here, the general substance of the excluded testimony is evident from the limited
universe of possible responses to defense counsel’s questions. Ms. Dominguez either
believed Alvarez was trying to hit the victim with the car, did not believe he was trying to
hit her, or had no opinion on the subject. Counsel presumably anticipated, or at least
hoped, that the witness would provide a response favorable to the defense. Therefore, the
claim has been preserved for our review. However, as we will explain, Alvarez’s failure
to make an offer of proof seriously undermines his ability to demonstrate prejudice.
Standard of Review
       “A trial court’s decision to admit or exclude evidence is reviewable for abuse of
discretion.” (People v. Vieira (2005) 35 Cal.4th 264, 292.) This standard applies to a
ruling that a question calls for speculation from a witness as opposed to admissible lay
opinion. (People v. Thornton (2007) 41 Cal.4th 391, 429 (Thornton).) The improper
exclusion of lay opinion testimony is an error of state law and subject to the test for
prejudice set forth in People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v.
DeHoyos (2013) 57 Cal.4th 79, 130-131 (DeHoyos).)
       Appellant’s attempt to frame his arguments in terms of constitutional due process
is unconvincing. While claims of judicial bias implicate the constitutional right to an
impartial judge, such allegations are reviewed on the basis of the entire record and with
the presumption that the trial court acted in good faith. (People v. Peoples (2016)
62 Cal.4th 718, 788-789; People v. Chatman (2006) 38 Cal.4th 344, 364; see Evid. Code,
§ 664 [“It is presumed that official duty has been regularly performed”].) Furthermore,
“a trial court’s numerous rulings against a party—even when erroneous—do not establish
a charge of judicial bias, especially when they are subject to review.” (People v. Guerra
(2006) 37 Cal.4th 1067, 1112.) Even if the rulings in question are interpreted as being
inconsistent, the record as a whole does not establish judicial bias or otherwise show
Alvarez was deprived of “ ‘ “a fair, as opposed to a perfect, trial.” ’ ” (Ibid.)



                                             11.
       Case law holds that a “mere limitation on the form of evidence presented” does
not amount to a violation of the due process right to present a defense. (People v. Carlin
(2007) 150 Cal.App.4th 322, 335.) “Where a trial court’s erroneous ruling is not a
refusal to allow a defendant to present a defense, but only rejects certain evidence
concerning the defense, the error is nonconstitutional and is analyzed for prejudice under
Watson, supra, 46 Cal.2d 818—i.e., the judgment should be reversed only if it is
reasonably probable that the defendant would have obtained a more favorable result
absent the error.” (People v. Garcia (2008) 160 Cal.App.4th 124, 133.) Since the
challenged rulings in this case “merely rejected some evidence concerning a defense,”
any error in that regard must be evaluated under the Watson standard. (People v. McNeal
(2009) 46 Cal.4th 1183, 1203.)
Analysis
       The parameters of a trial court’s discretion to admit lay opinion testimony are well
summarized in DeHoyos, supra: “ ‘A lay witness may express an opinion based on his or
her perception, but only where helpful to a clear understanding of the witness’s testimony
(Evid. Code, § 800, subd. (b)), “i.e., where the concrete observations on which the
opinion is based cannot otherwise be conveyed.” [Citation.]’ (People v. Hinton (2006)
37 Cal.4th 839, 889.) Such a situation may arise when a witness’s impression of what he
or she observes regarding the appearance and demeanor of another rests on ‘subtle or
complex interactions between them’ (ibid.) or when it is impossible to otherwise
adequately convey to the jury the witness’s concrete observations. [Citations.] A lay
witness generally may not give an opinion about another person’s state of mind, but may
testify about objective behavior and describe behavior as being consistent with a state of
mind.” (DeHoyos, supra, 57 Cal.4th at p. 130.)
       Although defense counsel’s rephrasing of his question in terms of what the car
appeared to be doing may have allowed for an admissible response, it was within the trial
court’s discretion to make the threshold determination of whether or not the witness

                                            12.
could otherwise adequately describe her observations without using opinion wording.
(DeHoyos, supra, 57 Cal.4th at p. 130; People v. Miron (1989) 210 Cal.App.3d 580, 583
[“Where the witness can adequately describe his observations, his opinion or conclusion
is inadmissible because it is not helpful to a clear understanding of his testimony.”].)
Whereas Deputy Costamagana had provided specific information about the positioning of
the Ford Taurus, its speed, and the distances between the car and the victim (“it appeared
to be inches” away from her both times that she jumped), Ms. Dominguez only said the
vehicle was “following her” and “trying to go toward where she was.” The subject
matter may have involved nuanced details, but the admissibility of opinion testimony at
the time of the prosecution’s objections was not a clear-cut decision, hence the
discretionary nature of the court’s ruling. (Cf. Thornton, supra, 41 Cal.4th at p. 429 [trial
court could reasonably rule that asking whether two vehicle occupants were acting as if
they knew each other called for speculation].) We conclude it was not outside the bounds
of reason for the trial court to sustain the objections.
       Were we to assume the trial court erred by prohibiting lay opinion testimony,
Alvarez’s claim would fail for lack of prejudice. Defense counsel was obviously hoping
to elicit favorable testimony, but Ms. Dominguez proved to be an unpredictable witness.
There were multiple occasions where she answered “No” or “I don’t recall” to questions
prefaced by words to the effect of, “Do you remember telling my investigator…?” It is
far from certain, or even likely, that the witness would have opined Alvarez was not
trying to strike April Garcia with the car. The absence of an offer of proof on that point
effectively precludes a finding of prejudice. Moreover, the witness’s opinion would have
been qualified by her admitted inability to gauge how close the car came to hitting the
victim. On the other hand, the jury heard Alvarez essentially admit to harboring a
wrongful intent on the jailhouse recording (i.e., answering “yeah” when asked if police
had seen him “try and run her over”). Given all of these circumstances, it is not



                                              13.
reasonably probable Alvarez would have obtained a more favorable verdict had the trial
court overruled the prosecutor’s objections.
Instructional Error
       The trial court believed it had a sua sponte duty to instruct the jury on attempted
voluntary manslaughter as a lesser included offense of attempted murder under Count 1.
The parties objected to such an instruction, with both sides arguing that the record did not
contain substantial evidence of provocation. In response, the trial court claimed the
standard for instructing on lesser included offenses was something “far below substantial
evidence,” and ruled that proof of a verbal and/or physical altercation between the
defendant and victim amounted to “circumstantial evidence from which the jury could
derive an opinion that there was a fight in the heat of passion.” Accordingly, the jury was
instructed pursuant to CALCRIM No. 3517 (Deliberations and Completion of Verdict
Forms: For Use When Lesser Included Offenses and Greater Crimes Are Not Separately
Charged … (Non-Homicide)) and CALCRIM No. 603 (Attempted Voluntary
Manslaughter: Heat of Passion--Lesser Included Offense …).
       Alvarez maintains the trial court erred by giving the lesser included offense
instruction on Count 1, and argues the error led to a conviction that is subject to reversal
for insufficient evidence. He further contends that the error resulted in a violation of his
constitutional rights. The claim of instructional error has merit, but there is no basis for
reversal.
Standard of Review
       “Whether or not the trial court should have given a ‘particular instruction in any
particular case entails the resolution of a mixed question of law and fact,’ which is
‘predominantly legal.’ ” (People v. Hernandez (2013) 217 Cal.App.4th 559, 568,
quoting People v. Waidla (2000) 22 Cal.4th 690, 733.) We therefore apply the de novo
standard of review. Appellant’s claims again involve matters of state law, and the issues
presented do not reach constitutional proportions. It is settled that the Watson standard

                                             14.
applies when a trial court errs by giving an instruction “which, while correctly stating a
principle of law, has no application to the facts of the case.” (People v. Guiton (1993) 4
Cal.4th 1116, 1129-1130; accord, People v. Debose (2014) 59 Cal.4th 177, 205-206;
People v. Perez (2005) 35 Cal.4th 1219, 1233.)
Analysis
       “Attempted murder requires the specific intent to kill and the commission of a
direct but ineffectual act toward accomplishing the intended killing. [Citation.]
Attempted murder requires express malice, that is, the assailant either desires the victim’s
death, or knows to a substantial certainty that the victim’s death will occur.” (People v.
Booker (2011) 51 Cal.4th 141, 177-178.) Attempted voluntary manslaughter is a lesser
included offense of attempted murder, with the distinguishing factor being the absence of
malice. (People v. Speight (2014) 227 Cal.App.4th 1229, 1241; § 192, subd. (a).)
       The California Supreme Court’s opinion in People v. Rios (2000) 23 Cal.4th 450
(Rios) provides an in-depth analysis of the difference between murder and voluntary
manslaughter. “ ‘Generally, the intent to unlawfully kill constitutes malice. [Citations.]
“But a defendant who intentionally and unlawfully kills [nonetheless] lacks malice …
when [he] acts in a ‘sudden quarrel or heat of passion’ (§ 192, subd. (a)), or … kills in
‘unreasonable self-defense’- the unreasonable but good faith belief in having to act in
self-defense [citations].’ ” (Rios, supra, 23 Cal.4th at p. 460.) “These mitigating
circumstances reduce an intentional, unlawful killing from murder to voluntary
manslaughter ‘by negating the element of malice that otherwise inheres in such a
homicide [citation].’ [Citation.] Provocation has this effect because of the words of
section 192 itself, which specify that an unlawful killing that lacks malice because
committed ‘upon a sudden quarrel or heat of passion’ is voluntary manslaughter.” (Rios,
supra, 23 Cal.4th at p. 460.)
       The ultimate holding in Rios appears to defeat appellant’s arguments regarding the
sufficiency of the evidence supporting the jury’s verdict on Count 1. Although

                                            15.
section 192 defines manslaughter as an unlawful killing committed without malice, “a
conviction of voluntary manslaughter may be sustained upon proof and findings that the
defendant committed an unlawful and intentional homicide. Provocation and imperfect
self-defense are not additional elements of voluntary manslaughter which must be proved
and found beyond reasonable doubt in order to permit a conviction of that offense.”
(Rios, supra, 23 Cal.4th at pp. 469-470, italics added.) If provocation is not an element
of voluntary manslaughter, it stands to reason that the same is true for the crime of
attempted voluntary manslaughter. Therefore, while evidence of provocation is a
prerequisite for jury instructions on a heat of passion theory, the absence of provocation
is not alone sufficient to invalidate a conviction for attempted voluntary manslaughter.
(See id. at pp. 463, fn. 10 [“Because a greater inclusive offense ‘cannot be committed
without also committing [a] lesser [offense necessarily included therein]’ [citation], facts
that would support a conviction of the greater offense necessarily allow a conviction of
the lesser.”].)
         Attempted murder and attempted voluntary manslaughter share the essential
element of intent to kill. (People v. Montes (2003) 112 Cal.App.4th 1543, 1545, 1549-
1550.) The evidence in this case is plainly sufficient to support a conclusion that Alvarez
acted with the intent to kill and under circumstances satisfying all other requirements for
attempted murder. Since the elements of attempted voluntary manslaughter are
necessarily included in the crime of attempted murder, the Count 1 conviction is not
subject to attack on grounds of insufficient evidence. (See People v. Milward (2011)
52 Cal.4th 580, 587 [pursuant to the analysis in Rios, “a defendant who commits an
unlawful killing with malice can be convicted of manslaughter”]; see also discussion,
post.)
         We now turn to the direct issue of instructional error. Contrary to the trial court’s
assertions, the sua sponte duty to instruct on a lesser included offense arises “only if there
is substantial evidence supporting a jury determination that the defendant was in fact

                                              16.
guilty only of the lesser offense.” (People v. Parson (2008) 44 Cal.4th 332, 348-349.) In
order for the trial court to conclude the jury could find Alvarez was guilty only of
attempted voluntary manslaughter, there had to be substantial evidence of provocation.
(Ibid.; Lee, supra, 20 Cal.4th at p. 59 [“Although section 192, subdivision (a), refers to
‘sudden quarrel or heat of passion,’ the factor which distinguishes the ‘heat of passion’
form of voluntary manslaughter from murder is provocation.”].)
       “A heat of passion theory of manslaughter has both an objective and a subjective
component.” (People v. Moye (2009) 47 Cal.4th 537, 549.) From an objective
standpoint, the provocation must be such as would “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.’ ” (People v. Beltran (2013) 56 Cal.4th 935, 957;
accord, People v. Steele (2002) 27 Cal.4th 1230, 1252 (Steele) [the “ ‘heat of passion
must be such a passion as would naturally be aroused in the mind of an ordinarily
reasonable person under the given facts and circumstances … .’ ”].) In simple terms, the
test is whether “an average, sober person would be so inflamed that he or she would lose
reason and judgment.” (Lee, supra, 20 Cal.4th at p. 60.) To satisfy the subjective
component, a defendant must be shown to have acted in the heat of passion because he
was in fact provoked. (Steele, supra, 27 Cal.4th at p. 1252.) Both aspects require proof
of instigating behavior by the victim, meaning “the victim must taunt the defendant or
otherwise initiate the provocation.” (People v. Carasi (2008) 44 Cal.4th 1263, 1306.)
       Here, the only potential evidence of provocation was Alvarez’s statement that he
argued with the victim after she balked at the idea of tattooing his name on her arm.
Even accounting for the changing mores of society, it is safe to say that no reasonable
person could experience the heat of passion required to negate the element of malice in
an attempted murder case simply because a romantic partner declined to tattoo a name on
his or her body. There was insufficient evidence to support the attempted voluntary
manslaughter instruction, and the trial court erred by providing it to the jury.

                                             17.
       Regarding prejudice, the circumstances here are similar to those in Powell, supra.
The evidence in that case established the defendant’s culpability for murder, but the trier
of fact inexplicably convicted him of manslaughter. On appeal, the defendant
characterized the verdict as a “compromise determination” and argued for reversal on
grounds that the law did not allow for a conviction of manslaughter “where the only
evidence presented tended to indicate that [he] was guilty of murder in the second degree
or of no crime whatsoever… .” (Powell, supra, 34 Cal.2d at pp. 198, 205.) The
California Supreme Court rejected this argument for the following reasons: “It cannot be
doubted that a trier of fact has and often exercises the power, because of obvious
extralegal factors or for no apparent reason, to find a defendant guilty of a lesser degree
or class of crime than that shown by the evidence. Furthermore, even if it be assumed
that the trier of fact erred here when he found defendant guilty only of manslaughter,
defendant cannot invoke reversal on an error which is favorable to him. [Citations.] An
appellant is precluded from complaining that he was convicted of a lesser offense than
the one of which he is guilty according to undisputed evidence, or according to that view
of the evidence which, it indisputably appears, the trier of fact accepted.” (Id. at p. 205,
italics and fn. omitted.)
       In Lee, supra, a plurality of the California Supreme Court concluded that the First
District Court of Appeal erred by not applying the Powell rule to uphold a defendant’s
conviction for voluntary manslaughter despite insufficient evidence of provocation. (Lee,
supra, 20 Cal.4th at pp. 51-52.) The Lee case is closely analogous to the present matter
because it involved the giving of an unwarranted jury instruction on voluntary
manslaughter as a lesser included offense of murder. The plurality opinion states, in
pertinent part:
              “When, as here, a jury necessarily finds all of the facts required for a
       conviction of murder, but convicts the defendant of voluntary
       manslaughter, any error in that conviction is favorable to the defendant.

                                             18.
       The Powell criteria are satisfied in these circumstances. In finding that the
       killing was intentional, the jury indisputably found all of the facts necessary
       to establish second degree murder. The jury was instructed that intent to
       kill is an element of voluntary manslaughter. Under section 188 this intent
       to kill is sufficient to establish malice. Thus, the jury necessarily found an
       unlawful killing of a human being in which malice aforethought was
       present unless malice was negated by heat of passion or, under the
       instructions given, by voluntary intoxication. Therefore, assuming as we
       do that there was insufficient evidence of heat of passion to negate malice,
       defendant was ‘convicted of a lesser offense than the one of which he is
       guilty . . . according to that view of the evidence which, it indisputably
       appears, the trier of fact accepted.’ (Powell, supra, 34 Cal.2d at p. 206.)
       He may not ‘invoke reversal on an error which is favorable to him.’ ” (Lee,
       supra, 20 Cal.4th at pp. 64-65.)
       In a concurring opinion, Justice Brown analyzed the issue solely in terms of the
sufficiency of the evidence: “[A]lthough a trial court should not instruct on a lesser
included offense ‘when there is no evidence that the offense was less than that charged’
[citation], it does not follow that if a trial court nonetheless instructs and a jury
nonetheless convicts, the conviction of the lesser included offense should be reversed for
insufficient evidence. To the contrary, because evidence of the greater offense was
sufficient, evidence of the lesser included offense is necessarily sufficient.” (Lee, supra,
20 Cal.4th at p. 67 (conc. opn. of Brown, J.).)
       Alvarez tries to distinguish Powell and Lee by arguing the jury’s rejection of the
prosecution’s attempted murder theory proves its belief that he did not act with an intent
to kill. Following this reasoning, he alleges the jury would have acquitted him on
Count 1 had the trial court not given it the option to convict him of attempted voluntary



                                              19.
manslaughter, and, therefore, he did not receive a more favorable disposition as a result
of the instructional error. We are not persuaded.
       It is a recognized phenomenon that “[w]here one of the elements of the offense
charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is
likely to resolve its doubts in favor of conviction.” (Keeble v. United States (1973)
412 U.S. 205, 212-213.) The classic all-or-nothing scenario did not exist in this case
because Alvarez also faced liability under Count 2, which alleged the commission of
assault with a deadly weapon by use of an automobile as a lethal instrument. The jury
actually submitted a question on this issue, asking, “Does ruling a certain way on Count
#1 out-rule or affect the ruling on Count #2 or vice versa?” The trial court replied, “No,
you must consider each count separately and return a separate verdict for each one.
Please refer to [CALCRIM] No. 3515”
       The crime of assault is defined as “an unlawful attempt, coupled with a present
ability, to commit a violent injury on the person of another.” (§ 240.) The jury’s guilty
verdict on Count 2 thus confirms its belief that Alvarez tried to hit Ms. Garcia with the
car. If the jury was not also convinced Alvarez intended to kill her, it could have easily
rejected all theories of liability for Count 1 knowing he would still be held accountable
for his actions under Count 2. Alvarez’s hypothesis necessarily presumes the jury
convicted him of attempted voluntary manslaughter without truly believing he acted with
the intent to kill. We do not accept this proposition. If the Powell rule does not
completely bar Alvarez’s claim as a matter of judicial policy, it nevertheless fails under
the Watson standard because it is not reasonably probable he would have obtained a more
favorable outcome but for the instructional error.




                                            20.
                                 DISPOSITION
     The judgment is affirmed.



                                               _____________________
                                                           GOMES, J.
WE CONCUR:


 _____________________
HILL, P.J.


 _____________________
LEVY, J.




                                     21.
