Opinion
F084246
05-07-2024
THE PEOPLE, Plaintiff and Respondent, v. ISRAEL CHUCA, Defendant and Appellant.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill, and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County No. BF181697A, Charles R. Brehmer, Judge.
Marcia R. Clark, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Darren K. Indermill, and Paul E. O'Connor, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
LEVY, Acting P. J.
INTRODUCTION
While driving through East Bakersfield, Israel Chuca (appellant) passed by two pedestrians: Carlos Venegas and Sergio Lopez. Venegas put up a hand sign for a rival gang. Appellant responded by exiting his car and firing eight shots, killing Venegas and injuring Lopez.
A jury convicted appellant of first degree murder (Pen. Code, § 187, subd. (a); count 1) and willful, deliberate, and premeditated attempted murder (§§ 664, 187, subd. (a); count 2). As to both counts, the jury found true the enhancement for the intentional discharge of a firearm causing great bodily injury or death. (§ 12022.53, subd. (d).) In a bifurcated phase of the trial, as to count 1, the jury found true a special-circumstance allegation for killing while an active participant in a criminal street gang to further the activities of the gang (§ 190.2, subd. (a)(22)) and found true an enhancement for acting for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)). At sentencing, the trial court struck the firearm enhancements, then sentenced appellant to life in prison without the possibility of parole, plus an indeterminate term of life with the possibility of parole.
All further statutory references are to the Penal Code unless otherwise indicated.
The People initially alleged a section 186.22, subdivision (b)(1) gang enhancement as to count 2 but dismissed it prior to the bifurcated phase of the trial.
On appeal, appellant contends there was insufficient evidence to support the gang-murder special-circumstance finding and gang enhancement. His challenges pertain to the evidence of the predicate offenses necessary to establish the existence of a criminal street gang under the law as amended by Assembly Bill No. 333 (2021-2022 Reg. Sess.) (Stats. 2021, ch. 699, §§ 1-5) (Assembly Bill 333). Appellant asserts there was no evidence the predicate offenses "commonly benefitted" the gang (§ 186.22, subd. (e)(1)). We reject this claim. Appellant also argues the evidence did not show that the gang's members "collectively engage in . . . a pattern of criminal gang activity." (§ 186.22, subd. (f).) However, while this appeal was pending, the Supreme Court issued People v. Clark which interpreted the collective engagement language as requiring an "organizational nexus between [the predicate offenses] and the gang as a collective enterprise." (People v. Clark (2024) 15 Cal.5th 743, 764 (Clark)). This intervening appellate authority fundamentally changed the evidentiary showing necessary to sustain the gang-related findings. We conclude this resulted in prejudicial instructional error, rather than evidentiary insufficiency. The gang-related findings must be vacated on this basis.
Appellant also claims the jury instructions erroneously suggested that provocation, as it pertains to premeditation and deliberation, should be evaluated on an objective standard. We conclude this claim is forfeited, and that the instructions were not misleading in this manner.
We affirm appellant's conviction on the substantive offenses and firearm enhancements but vacate the jury's true finding on the gang-murder special-circumstance allegation and gang enhancement. We vacate appellant's sentence and remand the matter for possible retrial of the gang-related findings, and for resentencing.
BACKGROUND
Prior to trial, the trial court granted appellant's request to bifurcate the gang-murder special-circumstance allegation and gang enhancement. The trial proceeded in two phases. The first phase addressed the substantive charges and the firearm enhancements. The second phase addressed the gang-related allegations.
I. Trial phase one - substantive offenses and firearm enhancements.
A. Officers respond to the scene of the shooting.
On the evening of August 2, 2019, officers responded to a shooting at the intersection of Niles and Barlow Streets in Bakersfield. There, officers located Venegas lying face down in the street at the southeast corner of the intersection. Venegas had gunshot wounds to the chest and back of the head and was unresponsive. He was transported to the hospital, where he was declared deceased.
Responding officers also observed Lopez walking eastbound on Niles Street away from the intersection. Lopez had a gunshot wound to his right buttock and appeared to be limping. He was transported to the hospital and treated for his injuries. He was uncooperative with law enforcement and refused to provide details about the shooting.
B. Surveillance video of the shooting.
The People admitted surveillance video from a nearby elementary school. The video was played in court for the jury. It shows Venegas and Lopez walking westbound on the south side of Niles Street toward Barlow Street. A black SUV traveling eastbound on Niles drives past them, makes a U-Turn at the next intersection, and continues westbound. As Venegas and Lopez approach the southeast corner of Niles and Barlow, the SUV makes a left turn from Niles onto Barlow, then stops at the next block. Venegas and Lopez also walk south on Barlow. The video briefly skips, then a subject can be seen standing in the middle of Barlow, just south of Niles. As Venegas and Lopez move away from the subject, two apparent muzzle flashes can be seen around the subject's upper body. Venegas falls to the ground, and Lopez limps away eastbound on Niles.
Surveillance video from a nearby business was also admitted. It shows the black SUV make a left turn from Niles onto Barlow as Venegas and Lopez are near the southeast corner of the intersection. The video does not capture the shooting, but shows Venegas fall to the ground after he is shot. As Venegas falls, the sound of eight gunshots being fired in rapid succession can be heard.
C. Appellant's DNA is found on expended cartridge casings.
Law enforcement personnel located eight expended .38-caliber cartridge casings in the middle of Barlow Street, south of Niles Street. The casings were approximately 40 yards from where Venegas collapsed.
A technician swabbed each of the casings for DNA. Subsequent DNA testing revealed a mixture of two contributors. Appellant could not be excluded as one of the contributors.
D. Appellant admits to the shooting.
Appellant was arrested at his residence pursuant to an arrest warrant. His residence was approximately one mile from the shooting scene.
Appellant was transported to police headquarters where he was interviewed by detectives. An audio and video recording of the interview was admitted into evidence and played in court.
During the interview, appellant admitted he was a member of the Colonia Bakers (CB) gang. He stated he lived with Isaac R., and confirmed Isaac was also a CB gang member.
Appellant initially denied involvement in the shooting, claiming he was at home using and selling drugs. When the detectives told appellant that his DNA was on the cartridge casings at the shooting scene, appellant claimed he had lent the gun to someone else.
Later, detectives informed appellant that the shooting was captured on surveillance video and confronted him with photographs of Venegas and Lopez. Appellant then stated he would be "straight up," and that he knew he was going to "get locked up." He admitted he was the shooter but claimed he had consumed Xanax and two bottles of whisky. He stated that as he drove past the victims in the black SUV, they "banged" on him, which he explained meant putting up gang signs. He claimed he did not know who the victims were, and that it was too dark to see their faces. He demonstrated the gang sign he saw one of the victims make, which the People's gang expert explained is the sign for the Varrio Chico Lamont (VCL) gang. Appellant felt the victims' conduct was disrespectful and that he had to do something in response.
Appellant admitted he parked and exited his car, but claimed he blacked out during the shooting. When the detectives asked him if he is an accurate shooter, appellant responded, "If he's dead, yeah." Appellant claimed that after the shooting he burned the gun and threw it away.
E. Gang evidence.
The People's gang expert, a Kern County sheriff's deputy who worked in the gang suppression unit, opined that appellant was an active member of the CB gang at the time of the shooting. Appellant had several gang tattoos on his person, gang related clothing, writing, and graffiti in his residence, and photos, videos, and messages on his cell phone and social media profiles showing his allegiance to the CB gang. The expert also opined that Venegas was an active member of the VCL gang. Venegas had several gang tattoos on his person, including a large "VCL" tattoo across his abdomen. Finally, the expert opined that Lopez was an active member of the CB gang based on his prior interactions with Lopez. Lopez also had several gang tattoos.
The expert explained that all Hispanic gangs in Bakersfield, including the CB gang, are southern Hispanic gangs. Every southern Hispanic gang is run by a hierarchy that is controlled by the Mexican Mafia, a California prison gang. Each gang has designated "shot callers," who give directives to lower-level gang members.
The CB gang's territory includes a large portion of the east side of Bakersfield. Their territory borders that of several other gangs, including the VCL gang. One of the CB gang's main objectives is to acquire additional territory to gain more respect in the "gang world." They frequently fight with other gangs over territory.
The expert testified the shooting occurred inside of the CB gang's territory. He explained the term "banged on" means a member of a rival gang showing disrespect by either yelling out the name of their gang or holding up a gang sign. He opined that if a VCL gang member were inside of CB gang territory and flashed a VCL gang sign at a CB gang member, that would be viewed as disrespectful by the CB gang member and could result in a physical confrontation.
F. Defense evidence.
The defense's gang expert opined that the shooting in the instant case was not gang motivated. He noted appellant did not say anything at the time of the shooting reflecting his gang membership. He also relied on the fact that Lopez was a member of the CB gang.
The defense called a toxicologist who discussed the stages of alcohol intoxication. He explained that consuming an entire bottle of whisky all at once could lead to a level of alcoholic stupor that would result in memory loss.
II. Trial phase two - gang-murder special-circumstance allegation and gang enhancement.
A. The predicate offenses.
1. December 11, 2018 - illegal firearm possession.
Officers conducted a probation search at a residence for Isaac R., a CB gang member. When officers arrived, they observed five subjects sitting in a van parked in the driveway. Alejandro V., a CB gang member, was sitting in the driver's seat. Miguel V., also a CB gang member, was sitting the front passenger's seat. Appellant, Isaac, and a fifth subject, Michael H., were sitting in the back.
Officers searched the van and located a loaded semiautomatic handgun under the driver's seat. They also discovered a bag containing 2.2 grams of suspected cocaine on the floorboard between the driver's and passenger's seat.
Several of the subjects were wearing gang clothing and had visible gang tattoos. Officers also located gang graffiti and other indicia inside of the residence. Appellant was interviewed and admitted he was a member of the CB gang.
In response to a hypothetical question, the People's gang expert opined the firearm was possessed for the common benefit of the CB gang. He explained that gang members use firearms for several reasons, including assaulting rival gang members and defending against rivals.
2. December 31, 2018 - illegal firearm possession.
Officers were dispatched to an area in Bakersfield on a report that a subject shot a firearm into the air. Upon arrival, they observed three subjects near a parked car -Raymond M., Juan A., and Gavino C. Raymond and Juan were CB gang members, but Gavino was an East Side Bakers gang member.
Raymond M. matched the description of shooter and was detained. Juan A. was also detained. Gavino C. fled the area on foot and was detained after he ran through the yards of nearby residences.
Officers searched the parked car and discovered a revolver on the front driver's side floorboard.
All three subjects were arrested. Raymond M. was convicted of negligent discharge of a firearm (§ 246.3) and being a felon in possession of a firearm (§ 29800, subd. (a)(1)). Juan A. was convicted of being a felon in possession of a firearm. (§ 29800, subd. (a)(1).) Gavino C. was convicted of possession of a controlled substance with the intent to sell. (Health &Saf. Code, § 11378.)
Based on a hypothetical question, the People's gang expert opined that the firearm was possessed for the common benefit of the CB gang. He testified that the firearm could be used by gang members for offensive and defensive purposes, including targeting a rival gang member or defending against a rival.
3. May 10-11, 2016 - assault with force likely to produce great bodily injury and illegal firearm possession.
On the evening of May 10, 2016, officers conducted a probation search in a residential area. As two officers returned to their patrol car, they saw another car had arrived and parked nearby in an alley. They saw two men exit the car - John C. and Moses T. Both were CB gang members.
John C. and Moses T. appeared to notice the officers and got back into their car. John got into the driver's seat and Moses got into the passenger's seat. As the officers moved toward them and identified themselves, John turned on the car. The officers drew their firearms and commanded John to turn off the car. When the officers got within about 10 feet, John quickly accelerated towards them. Both officers were nearly hit by the car but were able to move out of the way. One of the officers had to lift his foot up and strike the car to avoid being hit. John and Moses continued to flee in their car and law enforcement was unable to locate them that night.
The following day, officers located John C. and Moses T.'s car parked near some apartments. Officers surveilled the car and saw John, Moses, and a third subject, David N., exit the apartment and approach the car. During the surveillance, Moses appeared to be reenacting what one of the officers did to avoid getting hit by the car the night before, causing the others to laugh.
Officers detained the three subjects. John C. provided the officers with keys to the car and apartment. Officers searched the car and the apartment the subjects were seen exiting. John's cell phone was inside of the car. Officers searched the phone and found photographs of John and Moses T. putting up gang signs. There was also a photograph of a shotgun next to a blue bandana.
Inside one of the bedrooms, officers located a .12-gauge shotgun and a .22-caliber bolt action rifle underneath a mattress. In the same bedroom, the letters CBKS, an abbreviation for the CB gang, was written on a dresser mirror in blue ink. In the living room, the officers discovered .22-caliber ammunition and .12-gauge shotgun ammunition.
John C. was convicted of assault with force likely to produce great bodily injury (§ 245, subd. (a)(4)) and admitted a gang enhancement (§ 186.22, subd. (b)(1)). Moses T. was convicted of being a felon in possession of a firearm (§ 29800, subd. (a)) and misdemeanor active participation in a criminal street gang (§ 186.22, subd. (a)). David N. was convicted of active participation in a criminal street gang (ibid.).
Based on hypothetical questions, the People's gang expert opined that the assault on the officers with the car was committed for the common benefit of the CB gang because it showed they were willing to "pretty much do anything to get away from law enforcement [if] need be." With respect to the firearms inside the apartment, the expert opined they were possessed for the common benefit of the CB gang because firearms can be used by gang members for offensive and defensive purposes, and gang members often commit offenses together.
4. March 23, 2017 - illegal firearm possession.
An officer responded to an "Internet casino" to a report that a person was armed with a firearm. The officer detained Raymond M. inside of the business because he matched the description of the suspect.
The officer reviewed surveillance footage, which showed Raymond M. remove a silver handgun from his waistband and hand it to a person offscreen. Next, the video showed another subject, Christian M., place a metal lockbox inside of a crevice in a cabinet. The officer located the lockbox and found a loaded silver handgun inside.
Raymond M. was convicted of being a felon in possession of a firearm. (§ 29800, subd (a)). Charges against Christian M. were dismissed.
Based on a hypothetical question, the People's gang expert opined that the firearm was possessed for the common benefit of the CB gang because it could be used by gang members for offensive and defensive purposes.
B. Further gang expert testimony.
The People's gang expert provided additional information about the CB gang. The gang has more than 50 members and rivals with every other Hispanic gang in Kern County, including the VCL gang. However, at times the CB gang gets along with other gangs, depending on what is happening in the gang world.
The CB gang associates with the color royal blue and certain hand signs, letters, and symbols. Their primary activities include illegal possession of firearms and ammunition, assaults, robberies, and burglaries.
In response to a hypothetical question based on the facts of the instant case, the People's gang expert opined that the shooting was committed for the benefit of the CB gang. He explained appellant benefitted the gang by targeting and eliminating a perceived rival gang member. He also demonstrated the gang's power and willingness to use violence to defend CB gang territory, which increases their respect with other gangs.
C. Further defense evidence.
The defense's gang expert opined that the predicate offenses were not gang related or committed for the common benefit of the gang. He testified the offenses were committed for a personal benefit, such as possessing a firearm for self-defense or evading capture.
With respect to the charged offenses, the defense's gang expert opined that appellant was not acting for the benefit of the gang. In his opinion, there was no evidence appellant knew the identity of his victims or told other gang members about the shooting. However, he conceded that eliminating a perceived rival would benefit the gang.
DISCUSSION
I. The jury's finding that the predicate offenses commonly benefitted the gang was supported by substantial evidence.
Appellant claims the evidence at trial was insufficient to sustain the gang-murder special-circumstance allegation and the gang enhancement, contending the People failed to establish the predicate offenses "commonly benefitted" the CB gang. (§ 186.22, subd. (f).)
We disagree. Appellant incorrectly reads a specific intent element into the common benefit requirement. Section 186.22, subdivision (e)(1), only requires that the predicate offenses "commonly benefitted" the gang. The People were not required to prove, as appellant contends, that the predicate offenses were committed with the specific intent to commonly benefit the gang. Applying the correct legal standard, we conclude there was substantial evidence that the predicate offenses - illegal firearm possession and assault with force likely to produce great bodily injury - provided a common benefit to the CB gang.
Respondent initially contended that applying Assembly Bill 333's amended definition of a criminal street gang to the gang-murder special-circumstance allegation would constitute an impermissible amendment to Proposition 21, the Gang Violence and Juvenile Crime Prevention Act of 1998, adopted by voters in 2000. While this appeal was pending, the Supreme Court rejected this argument in People v. Rojas (2023) 15 Cal.5th 561, 566. In light of the Supreme Court's decision, respondent has withdrawn this contention.
A. Legal background - gang-related allegations and Assembly Bill 333.
The gang-murder special-circumstance allegation (§ 190.2, subd. (a)(22)) and the gang enhancement (§ 186.22, subd. (b)(1)) both require proof the defendant was an active member of a criminal street gang as defined in section 186.22. To prove either of these allegations, the prosecution must prove the existence of the alleged criminal street gang. As statutorily defined, one element of a criminal street gang is that its members engage in a pattern of criminal gang activity. (§ 186.22, subd. (f).) To make this showing, the prosecution must present evidence that "gang members have, within a certain time frame, committed or attempted to commit 'two or more' of specified criminal offenses (so-called 'predicate offenses')." (People v. Gardeley (1996) 14 Cal.4th 605, 610, fn. omitted.)
Effective January 1, 2022, Assembly Bill 333 amended section 186.22 to modify the showing necessary to prove gang offenses and enhancements. Appellant was tried in February 2022, so its amendments were effective at the time of appellant's trial.
As pertinent here, Assembly Bill 333 made several significant changes to the definition of a criminal street gang. (See People v. Tran (2022) 13 Cal.5th 1169, 1206.) First, it requires that a gang's members "collectively engage in ... a pattern of criminal gang activity." (§ 186.22, subd. (f).) Previously, this subdivision only required that the gang's members "individually or collectively engage in" a pattern of criminal gang activity. (Id., former subd. (f).)
Next, Assembly Bill 333 narrowed the definition of "pattern of criminal gang activity." Under section 186.22, former subdivision (e), predicate offenses could be "committed on separate occasions, by two or more persons." Now, predicate offenses must have been committed "on separate occasions by two or more [gang] members." (§ 186.22 subd. (e)(1)).
Finally, Assembly Bill 333 added the requirement that the predicate offenses "commonly benefited" the gang in a manner that is "more than reputational." (§ 186.22, subd. (e)(1).) "Examples of a common benefit that are more than reputational may include, but are not limited to, financial gain or motivation, retaliation, targeting a perceived or actual gang rival, or intimidation or silencing of a potential current or previous witness or informant." (Id., subd. (g).)
B. Standard of review.
"To assess the evidence's sufficiency, we review the whole record to determine whether any rational trier of fact could have found the essential elements of the crime or special circumstances beyond a reasonable doubt. [Citation.] The record must disclose substantial evidence to support the verdict-i.e., evidence that is reasonable, credible, and of solid value-such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Zamudio (2008) 43 Cal.4th 327, 357; see People v. Albillar (2010) 51 Cal.4th 47, 60-61 [applying substantial evidence standard to gang enhancement]; see also Conservatorship of O.B. (2020) 9 Cal.5th 989, 1001 [applicable evidentiary standard affects a reviewing court's assessment of evidentiary sufficiency].) We "presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence." (People v. Redmond (1969) 71 Cal.2d 745, 755.) "We need not be convinced of the defendant's guilt beyond a reasonable doubt; we merely ask whether' "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." '" (People v. Tripp (2007) 151 Cal.App.4th 951, 955.)
C. Substantial evidence supports the jury's finding of common benefit.
Section 186.22, subdivision (e)(1), states that predicate offenses must have "commonly benefitted a criminal street gang, and the common benefit from the offenses was more than reputational." The import of the common benefit language is that the predicate offenses must actually benefit the gang as a whole, rather than the individual offenders. (See People v Cooper (2023) 14 Cal.5th 735, 743-744.)
Here, the prosecution offered evidence of five predicate offenses - four instances of illegal possession of firearms, and one assault with force likely to produce great bodily injury. The People's gang expert explained how each predicate offense collectively benefitted the gang as a whole. As to the illegal possession of firearms offenses, the expert testified that firearms benefit the gang because they can be used for offensive or defensive purposes, including targeting a rival gang member, or defending against a rival. He also explained that the CB gang rivals with all surrounding gangs, and they are constantly fighting with rival gang members over gang territory. This testimony demonstrated that possession of firearms is critical to the CB gang due to its ongoing feuds with other gangs.
We also conclude that the evidence showed the assault with force likely to produce great bodily injury predicate offense commonly benefitted the CB gang. The People's gang expert testified the offense benefitted the gang by showing that they would be willing to do anything to get away from law enforcement. While the expert framed this benefit in reputational terms, we agree with respondent that the nonreputational benefit is apparent regardless of the expert testimony - keeping gang members out of custody by avoiding capture. (See People v. Cooper, supra, 14 Cal.5th at p. 745, fn. 9 [suggesting that circumstantial evidence may be used to prove a common benefit that is more than reputational].)
Appellant contends the evidence was insufficient because the People did not establish that the predicate offenses were committed "for the purpose of benefitting the gang." In other words, he claims the prosecution was required to show not just that the predicate offenses benefitted the gang, but that the perpetrators of those offenses acted with the specific intent to benefit the gang. Following this interpretation, he attempts to analogize the instant predicate offenses to the charged offenses in People v. Soriano (2021) 65 Cal.App.5th 278 and People v. Ramon (2009) 175 Cal.App.4th 843. In both cases, the court held there was insufficient evidence to sustain the jury's gang enhancement finding because the evidence did not establish the defendant committed the charged offense with the requisite gang intent, namely," 'for the benefit of, at the direction of, or in association with a criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by gang members.'" (People v. Soriano, at p. 285; People v. Ramon, at p. 851.)
Appellant's argument and analogies fail because appellant misinterprets the common benefit requirement. To prove a gang enhancement, the showing required for the charged offense is different from the predicate offenses. As to the charged offense, the prosecution must show that it was committed "(1) for the benefit of the gang, and (2) with the specific intent to promote, further, or assist the criminal conduct of gang members." (People v. Renteria (2022) 13 Cal.5th 951, 965.) The predicate offenses, on the other hand, merely require a showing that they "commonly benefited a criminal street gang." (§ 186.22, subd. (e)(1).) Nothing in the plain language of section 186.22, subdivision (e)(1), states or suggests that the predicate offenses must be committed with the specific intent of providing a common benefit to the gang. "[W]e presume the Legislature intended everything in a statutory scheme, and we should not read statutes to omit expressed language or include omitted language." (Jurcoane v. Superior Court (2001) 93 Cal.App.4th 886, 894.) Adopting appellant's position, which would read a nonexistent intent element into the statute, would be contrary to this canon of statutory interpretation.
Because the plain language of the common benefit requirement is clear, we need not look elsewhere to assess its meaning. (See People v. Rodriguez (2012) 55 Cal.4th 1125, 1131 [if statutory language is unambiguous, the plain meaning controls].) However, we note that our reading also comports with the amended statute's legislative history. (See Carter v. California Dept. of Veterans Affairs (2006) 38 Cal.4th 914, 927 [previous drafts of legislation may demonstrate legislative intent].) In enacting Assembly Bill 333, "[t]he Legislature initially added, but then dropped, a requirement that the predicate offenses 'were committed for the benefit of, at the direction of, or in association with, the criminal street gang, with the specific intent to promote, further, or assist in criminal conduct by members of the criminal street gang at issue.' [Citation.] That provision would have required, with respect to predicate offenses, the same gang-related and specific intent showings now required of the charged offense, including an inquiry into the mens rea of the typically absent third party gang member who allegedly committed the offense." (Clark, supra. 15 Cal.5th at p. 761, fn. 6.) Instead of adopting language mirroring the intent requirement for the charged offense, the Legislature elected to only require that the predicate offenses provided a common benefit to the gang, without a specific intent element. Thus, both the plain language of Assembly Bill 333 and its legislative history make clear that the People need only show that the predicate offenses actually provided a common benefit to the gang, without the additional showing that the perpetrators acted with the specific intent to benefit the gang.
Based on our review of the record, the evidence clearly supports the jury's finding that the predicate offenses commonly benefitted the CB gang in a manner the was more than reputational. Accordingly, we conclude the jury's finding was supported by substantial evidence, and this claim lacks merit.
II. The trial court's failure to instruct the jury on the organizational nexus requirement set forth in Clark was prejudicial instructional error. We vacate the jury's gang-related findings and remand for possible retrial.
In addition to the common benefit requirement, appellant contends there was insufficient evidence that the CB gang "collectively engage[s] in ... a pattern of criminal gang activity." (§ 186.22, subd. (f).)
Appellant initially claimed that the collective engagement language requires that each predicate offense be committed in concert by two or more gang members, based on the holdings of People v. Lopez (2021) 73 Cal.App.5th 327 (Lopez) and People v. Delgado (2022) 74 Cal.App.5th 1067 (Delgado). He argued the evidence was insufficient because in all but one of the predicate offenses, only a single gang member was convicted of an offense enumerated in section 186.22, subdivision (e).
While this appeal was pending, the Supreme Court issued Clark, which examined the collective engagement language. In short, Clark held that collective engagement may be satisfied by evidence of predicate offenses committed by individual gang members. (Clark, supra, 15 Cal.5th at p. 749.) However, it further held that regardless of the number of perpetrators, "collective engagement requires a nexus between the individual predicate offenses and the gang as an organized, collective enterprise." (Ibid.)
We directed the parties to file supplemental letter briefs addressing Clark. In light of Clark's holding, appellant withdrew his sufficiency of the evidence claim based on the number of gang members that committed the predicate offenses. Appellant now claims that the evidence was insufficient because the People failed to make the organizational nexus showing required by Clark. Respondent counters that the evidence of an organizational nexus was sufficient under the substantial evidence standard.
We reject the parties framing of the legal issue created by Clark as one of evidentiary sufficiency. Clark expanded the evidentiary showing required to establish collective engagement. The jury was not instructed on Clark's organizational nexus requirement, and at the time of trial, the court and parties had no reason to believe that such a requirement existed. As a result, the question of whether an organizational nexus existed between the predicate offenses and the CB gang was never tried to the jury. We instead conclude that Clark resulted in instructional error, not evidentiary insufficiency. We vacate the gang-murder special circumstance and gang enhancement findings, and remand for possible retrial.
A. Legal background - Assembly Bill 333 and Clark.
As noted above, under Assembly Bill 333 the prosecution must prove that a gang's members "collectively engage in ... a pattern of criminal gang activity." (§ 186.22, subd. (f).)
After Assembly Bill 333 was enacted, appellate courts began to interpret the meaning of the collective engagement language. In Lopez, the court of appeal concluded that evidence of three different predicate offenses committed by individual gang members was insufficient to sustain a gang enhancement, because section 186.22, subdivision (f) requires proof of "collective, not merely individual, engagement in a pattern of criminal activity." (Lopez, supra, 73 Cal.App.5th at pp. 344-345.)
Following Lopez, Delgado expressly held that each predicate offense must be committed by two or more gang members. (Delgado, supra, 74 Cal.App.5th at pp. 10721073.) Delgado concluded the "commonsense" interpretation of the term" 'collectively'" in section 186.22, subdivision (f), means "committed by more than one person." (Delgado, at pp. 1088-1089.) It also stated that a contrary interpretation would be "inconsistent with the Legislature's intent to significantly limit the scope of the gang enhancement." (Id. at p. 1089.)
People v. Clark disagreed with Flores and Delgado. (People v. Clark (2022) 81 Cal.App.5th 133, 144-146, review granted Oct. 19, 2022, S275746.) Based on the plain language of section 186.22, subdivision (e)(1), it reasoned: "[T]here are two options for establishing the requisite pattern: (1) prove two different gang members separately committed crimes on two occasions; or (2) prove two different gang members committed a crime together on a single occasion." (People v. Clark, at pp. 144-145.)
The Supreme Court granted review in Clark, supra, 15 Cal.5th 743, to resolve the disagreement among the appellate courts. Clark rejected Delgado's interpretation of the collective engagement requirement as incompatible with the language of section 186.22, subdivision (e)(1), which states a "pattern of criminal gang activity" may be established by predicate offenses committed either" 'on separate occasions or by two or more members.'" (Clark, at p. 754.) "By contrasting offenses committed on 'separate occasions' with those committed by 'two or more members,' the language of section 186.22, subdivision (e)(1) indicates that only the second alternative requires the participation of more than one gang member. This is the most straightforward reading of the language of the statute." (Clark at p. 754.) Clark also reasoned that the phrase" 'collectively engage'" does not necessarily require that predicate offenses be committed in concert. (Id. at pp. 755-756.) Rather, "the word 'collectively' is just as often used to refer to distinctively individual acts that, considered in the aggregate, form a general pattern." (Id. at p. 756.) Thus, Clark held that predicate offenses committed by individual gang members may be sufficient to establish collective engagement in a pattern of criminal gang activity. (Id. at pp. 756-757.)
After resolving the split of authority among the lower courts, Clark observed that if the "collectively engage" language in section 186.22, subdivision (f), does not require that each predicate offense be committed in concert by two or more gang members, it must have some other meaning. (Clark, supra, 15 Cal.5th at p. 757.) However, it found that the language of section 186.22 "does not point to clear answers." (Clark, at p. 757.) To clarify the ambiguity of the statutory language, Clark turned to the legislative history of Assembly Bill 333. (Clark, at p. 759.) While it concluded that such history does not clearly evidence the Legislature's intended meaning of the collective engagement language, the legislature's purpose in amending the language was clear - to differentiate between "the threat posed by organized groups collectively engaged in criminal activity, versus the threat posed by individual, loosely connected persons who happen to commit crimes." (Id. at p. 761.)
Based on this differentiation, Clark held collective engagement requires a showing of "a connection, or nexus, between an offense committed by one or more gang members and the organization as a whole." (Clark, supra, 15 Cal.5th at p. 762.) In other words, the predicate offenses must reflect "how the gang works together as a gang." (Ibid.) "This organizational nexus may be shown by evidence linking the predicate offenses to the gang's organizational structure, meaning its manner of governance; its primary activities; or its common goals and principles." (Ibid.)
Clark emphasized that the organizational nexus showing may be established in different ways depending upon the structure, hierarchy, or level of formality within a particular gang. (Clark, supra, 15 Cal.5th at p. 762.) As an example, Clark explained a predicate offense might be committed pursuant to a direct order from a high ranking gang member. (Ibid.) On the other hand, a predicate offense might be committed based on a "general, well-understood expectation that members must engage in certain types of offenses." (Ibid.) But regardless of the structure of the gang, the "core inquiry" remains the same - "whether there exists an organizational nexus between the crime and the gang." (Id. at p. 763.)
B. Clark's introduction of the organizational nexus requirement resulted in prejudicial instructional error, not evidentiary insufficiency. We vacate the jury's gang related finding on this basis.
Appellant's trial began after Assembly Bill 333 became effective, so there is no dispute that its amendments applied at appellant's trial. The parties also agree, as do we, that Clark applies retroactively to appellant's trial. (See People v. Guerra (1984) 37 Cal.3d 385 [with limited exceptions, judicial decisions apply retroactively to all cases not yet final].)
After the issuance of Clark, the parties center their dispute on whether there was sufficient evidence of an organizational nexus. We reject this framing of the legal issue presented by Clark. Clark changed the evidentiary showing necessary to sustain a gang-related finding. Whether the jury's finding of collective engagement was supported by substantial evidence is no longer relevant.
We begin by considering respondent's position that, even following Clark, the judgment should be affirmed if the jury's finding was supported by substantial evidence. In appellant's trial, the jury was not instructed on the organizational nexus requirement. The pertinent instructions largely mirrored the statutory language of section 186.22, subdivision (f). The only reference to collective engagement came in the portion of the instructions defining a criminal street gang, stating that its members "collectively engage in or have engaged in a pattern of criminal gang activity." (See CALCRIM Nos. 736, 1401.)
Without any description of Clark's organizational nexus requirement, the jury instructions were incomplete, and instructional error occurred. A trial court has a sua sponte obligation to instruct on the essential elements of a special circumstance allegation or a sentence enhancement. (People v. Mil (2012) 53 Cal.4th 400, 409; People v. Wims (1995) 10 Cal.4th 293, 303.) Failure to properly instruct on an essential element is constitutional error, warranting reversal unless the error was harmless beyond a reasonable doubt. (Mil, at pp. 409-410; People v. Merritt (2017) 2 Cal.5th 819, 830-831; see Chapman v. California (1967) 386 U.S. 18, 24.) Given the clear instructional error here, whether the jury's finding of collective engagement was supported by substantial evidence is irrelevant. The gang-related findings must be reversed unless the record shows the instructional error was harmless beyond a reasonable doubt.
Similarly, we reject appellant's position that reversal of the gang-related findings is warranted if there was insufficient evidence at trial of an organizational nexus. "[A] reversal based on evidentiary insufficiency 'means that the government's case was so lacking that it should not have even been submitted to the jury.'" (People v. Seel (2004) 34 Cal.4th 535, 544, quoting Burks v. United States (1978) 437 U.S. 1, 16.) It" 'has the same effect [as a judgment of acquittal] because it means that no rational factfinder could have voted to convict the defendant.'" (Seel, at p. 544.) But Clark altered the evidentiary showing necessary to establish the element of collective engagement after appellant's trial. The issue of whether there was an organizational nexus between the predicate offenses and the CB gang "was not relevant at the time of trial and the issue was therefore never tried." (People v. Figueroa (1993) 20 Cal.App.4th 65, 72, fn. 2.) There is no reason to assess whether the jury's finding of collective engagement was supported by substantial evidence because the jury was never charged with making a legally sufficient finding.
Having determined that instructional error occurred in light of Clark, we now consider whether such error was prejudicial. By failing to instruct on the organizational nexus requirement, the trial court misinstructed on the collective engagement element. Accordingly, the error is subject to the "beyond a reasonable doubt" harmless error standard set forth in Chapman. (People v. Wilkins (2013) 56 Cal.4th 333, 348.)
We conclude the instructional error was prejudicial. The People presented no evidence linking the predicate offenses to the organizational structure of the CB gang. The People's gang expert briefly described the hierarchical structure of the gang, but there was no evidence showing how the predicate offenses were related to that hierarchy or "the gang as a collective enterprise." (Clark, supra, 15 Cal.5th at p. 764.) The evidence did not show, for example, that the predicate offenses were ordered by higher ranking gang members or were motivated by a common expectation that gang members commit certain types of offenses. (Id. at p. 762.) While respondent notes that the predicate offenses were also primary activities of the CB gang, and the People's gang expert discussed how the offenses may assist the gang in accomplishing its common goals, Clark makes clear that this is insufficient without a link between the offenses and the organizational structure of the gang. (Ibid.) In short, the predicate offenses were committed by gang members and benefitted the gang, but there was no evidence the offenses "reflected an 'organized effort' by the ... gang." (Ibid.)
Given the lack of evidence, we cannot conclude" 'beyond a reasonable doubt that the error .. . did not contribute to the verdict obtained.'" (People v. Jennings (2019) 42 Cal.App.5th 664, 679.) The gang-murder special-circumstance finding and gang enhancement finding must be vacated because of this instructional error.
C. Double jeopardy does not bar retrial.
In our supplemental briefing order, we directed the parties to address potential double jeopardy concerns. Appellant contends that the gang-related findings cannot be retried because the evidence was insufficient under Clark. Respondent agrees, reasoning that Clark "merely clarifie[d]" Assembly Bill 333, which became effective before appellant's trial.
We disagree. Because we reverse the gang-related findings due to an error of law, double jeopardy does not bar retrial. The double jeopardy clause of the federal Constitution prohibits retrial when evidence introduced at trial was insufficient to sustain the verdict. (Burks v. United States, supra, 437 U.S. at pp. 16-18.) "[R]eversal for trial error, as distinguished from evidentiary insufficiency, does not constitute a decision to the effect that the government has failed to prove its case." (Id. at p. 15.) "Rather, the matter is governed by the settled rule that the double jeopardy clause does not prohibit retrial after a reversal premised on error of law." (People v. Shirley (1982) 31 Cal.3d 18, 71, fn. omitted (Shirley); see United States v. Tateo (1964) 377 U.S. 463, 465.)
People v. Garcia (1984) 36 Cal.3d 539 (Garcia) is instructive here. In Garcia, the jury convicted the defendant of first degree felony murder and found true the robberymurder special-circumstance allegation (§ 190.2, subd. (a)(17)). (Garcia, at p. 546.) Following trial, the Supreme Court held in Carlos v. Superior Court (1983) 35 Cal.3d 131, 135-136 (Carlos) that, under then-existing law, a robbery-murder special- circumstance finding required the intent to kill. (Garcia, at p. 547.) Carlos's holding was based on its statutory interpretation of the recently enacted 1978 Death Penalty Initiative, which rewrote the prior special circumstances provisions. (Carlos, at pp. 135-136, 139140.)
Garcia concluded that Carlos was "the first authoritative construction of [the Supreme Court] of the felony-murder provision of the 1978 initiative" and applied to all cases not yet final on appeal. (Garcia, supra, 36 Cal.3d at pp. 544-545.) Accordingly, Garcia held the trial court committed instructional error because the jury was not instructed on the intent to kill element, and that the error required reversal of the special-circumstance finding. (Id. at p. 557.) However, Garcia rejected the defendant's claim that retrial of the allegation was barred, stating: "We agree with the defendant that the evidence presented may be insufficient to support a finding of intent to kill, but think it unrealistic to assume that the prosecution, with a perfect case for proof of felony murder, necessarily presented all available evidence relating to intent. We therefore reverse the special circumstance finding without directions, permitting the prosecution to seek retrial of that issue." (Id. at pp. 557-558, fn. omitted.) Garcia further explained that" 'the matter is governed by the settled rule that the double jeopardy clause does not prohibit retrial after a reversal premised on error of law.'" (Id. at p. 558, fn. 13.)
Garcia relied on Shirley, which discussed why the law distinguishes between trial error and evidentiary insufficiency for purposes of retrial. (Garcia, supra, 36 Cal.3d. at p. 558. fn. 13; Shirley, supra, 31 Cal.3d at p. 71.) Shirley explained that the purpose of prohibiting retrial following a judicial finding of insufficient evidence is to protect a defendant against the harassment of unnecessary repeated trials. (Shirley, at p. 71.) "The rule achieves its aim . . . by the device of giving the prosecution a powerful incentive to make the best case it can at its first opportunity." (Ibid.) But this incentive is meaningless when the prosecution made "a case under the law as it then stood; having done so, the prosecution had little or no reason to produce other evidence of guilt." (Ibid.) For this reason, retrial is not barred when reversal is due to legal error. (Ibid.)
Here, as in Garcia, an essential element of an allegation was fundamentally changed by intervening appellate authority after trial. As a result, the trial court did not properly instruct on an element of the gang-related allegations, and the jury was never tasked with making a legally sufficient finding. In this circumstance, "the Double Jeopardy Clause does not bar a retrial because the government 'is not being given a second opportunity to prove what it should have proved earlier.'" (United States v. Johnson (9th Cir. 2020) 963 F.3d 847, 851.) Because we reverse the gang-related findings due to instructional error, the People may retry the allegations on remand.
We also observe that Clark, like Carlos, is "the first authoritative construction" of a recently enacted criminal statute. (Garcia, supra, 36 Cal.3d at pp. 544-545.) When appellant was tried, the People had no reason to produce evidence or expert testimony to establish an organizational nexus between the predicate offenses and the gang as a whole. As Clark explained, the meaning of collective engagement is not apparent from the plain language of the statute, and the high court had to rely on evidence of legislative intent to deduce its true meaning. (Clark, supra, 15 Cal.5th at pp. 757, 759-761.) Moreover, at the time of appellant's trial, there was no appellate authority suggesting the prosecution must prove an organizational nexus. The split of authority that Clark addressed dealt only with the number of gang members that must commit predicate offenses to establish collective engagement. Thus, it would be illogical to assume the prosecution necessarily presented all available evidence of an organizational nexus. (See Garcia, at pp. 557558.)
In support of his argument that double jeopardy bars retrial of the gang-related findings, appellant compares the instant matter to People v. Banks (2015) 61 Cal.4th 788 and People v. Clark (2016) 63 Cal.4th 522, where the Supreme Court clarified the meaning of the "reckless indifference to human life" and "major participant" requirements for nonkillers under the special-circumstance statute (§ 190.2, subd. (d)). (Banks, at pp. 797-811; People v. Clark, at pp. 614-624.) In both cases, the court reversed the special-circumstance findings for insufficient evidence without the option of retrial. (Banks, at pp. 811-812; People v. Clark, at pp. 623, 645.) Appellant argues these cases are analogous, because they involved the retroactive application a judicial clarification of existing law.
We are not persuaded. The cases appellant cites did not find that the judicial clarification of the applicable statute resulted in instructional error or some other error of law. Instead, they reversed solely for insufficient evidence. Here, we conclude Clark fundamentally altered an element of the gang-related findings, resulting in instructional error. Because we reverse due to an error of law, double jeopardy does not bar retrial.
To conclude, we reverse the gang-murder special-circumstance finding and the gang-enhancement finding, and we remand the matter to give the People the option of retrial. Because we vacate a portion of the judgment, we also vacate appellant's sentence in its entirety. Regardless of how the parties elect to proceed on remand, appellant will be entitled to" 'a full resentencing as to all counts . . . so the trial court can exercise its sentencing discretion in light of the changed circumstances.' " (People v. Buycks (2018) 5 Cal.5th 857, 893.)
The parties agree that the abstract of judgment does not reflect that appellant was sentenced to a concurrent sentence of life with possibility of parole as to count 2. Because appellant must be resentenced following remand, we need not address this error.
III. Appellant forfeited his claim that the jury instructions were misleading with respect to the evaluation of evidence of provocation. In any event, instructional error did not occur.
Appellant contends the trial court committed instructional error by giving CALCRIM No. 522 (Provocation: Effect on Degree of Murder). He claims this instruction is an incorrect statement of law because it does not specify that the provocation necessary to negate premeditation and deliberation need only be genuine and not objectively reasonable. He further contends the jury instructions given, when viewed collectively, erroneously suggested that in determining whether the murder or attempted murder was premeditated, evidence of provocation must be evaluated on objective standard.
We agree with respondent that appellant forfeited his instructional error claim by failing to raise it below. In any event, we conclude the jury was properly instructed, and there is no reasonable probability the jury was misled into applying incorrect standards for evaluating provocation.
A. Background
The court instructed the jury on the elements of malice murder with CALCRIM No. 520, specifying that if the jury decides appellant committed murder, it is murder of the second degree, unless the People proved beyond a reasonable doubt that it was murder in the first degree as defined in CALCRIM No. 521. The court then gave CALCRIM No. 521, instructing that appellant is guilty of first degree murder if the People proved appellant "acted willfully, deliberately, and with premeditation." The court explained that "[a] decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated." (See CALCRIM No. 521.) The court also gave CALCRIM No. 601 (Attempted Murder: Deliberation and Premeditation), which included the same definition of willful, deliberate, and premeditated conduct.
Next, the court gave CALCRIM No. 522, instructing the jury as follows:
"Provocation may reduce a murder from first degree to second degree and may reduce a murder to manslaughter. The weight and significance of the provocation, if any, are for you to decide. [¶] If you conclude that the defendant committed murder but was provoked, consider the provocation in deciding whether the crime was first or second degree murder. Also, consider the provocation in deciding whether the defendant committed murder or manslaughter."
In CALCRIM No. 570, the trial court instructed the jury that murder is reduced to voluntary manslaughter if:
"1. [Appellant] was provoked;
"2. As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his 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."
The court then explained that provocation in the context of heat of passion voluntary manslaughter must be evaluated on an objective standard:
"It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his own standard of conduct. You must decide whether the defendant was provoked and whether the provocation was sufficient. In deciding 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."
Finally, the court gave CALCRIM No. 603 (Attempted Voluntary Manslaughter: Heat of Passion), which largely mirrored the language CALCRIM No. 570.
B. Standard of review.
We review a claim of instructional error de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210.) "A defendant challenging an instruction as being subject to erroneous interpretation by the jury must demonstrate a reasonable likelihood that the jury understood the instruction in the way asserted by the defendant." (People v. Cross (2008) 45 Cal.4th 58, 67-68; People v Bacon (2010) 50 Cal.4th 1082, 1110.) "We interpret the instructions so as to support the judgment if they are reasonably susceptible to such interpretation, and we presume jurors can understand and correlate all instructions given." (People v. Vang (2009) 171 Cal.App.4th 1120, 1129.)
C. The instructional error claim is forfeited.
As a threshold matter, respondent contends appellant forfeited his claim of instructional error by failing to object to the trial court giving CALCRIM No. 522 or request a pinpoint instruction specifying that provocation as a basis to negate premeditation and deliberation must be evaluated on a subjective standard. We agree.
CALCRIM No. 522 is a pinpoint instruction and need not be given sua sponte. (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1333 (Hernandez); People v. Rivera (2019) 7 Cal.5th 306, 328 (Rivera).) This is because evidence of provocation, in the context of whether it has negated premeditation and deliberation, is relevant only to the extent it negates or rebuts the prosecution's proof of an element of the offense. (People v. Rogers (2006) 39 Cal.4th 826, 878; see People v. Saille (1991) 54 Cal.3d 1103, 1117.) CALCRIM No. 522 therefore does not set forth a defense, but merely "relates the evidence of provocation to the specific legal issue of premeditation and deliberation." (Rogers, at p. 878.)
Here, the trial court gave CALCRIM No. 522 without the request of either party, even though it had no sua sponte duty to do so. However, appellant did not object, nor request modification of CALCRIM No. 522.
Appellant contends he may raise this claim for the first time on appeal because CALCRIM No. 522 misstates the law, and therefore the alleged instructional error affected his substantial rights. (See § 1259; People v. Coffman and Marlow (2004) 34 Cal.4th 1, 103, fn. 34.) But appellant does not articulate how the language of CALCRIM No. 522 as given was legally incorrect. Rather, the import of appellant's claim is that CALCRIM No. 522 is incomplete, and the trial court should have given a more specific instruction clarifying that a subjective standard applies to provocation as it pertains to premeditation and deliberation.
In People v. Jones, the defendant made the same instructional error claim appellant makes here - that the pattern instructions given, including CALCRIM No. 522, "were likely to have misled the jury into concluding that the objective test applies both for reduction of first to second degree murder as well as from murder to manslaughter." (People v. Jones (2014) 223 Cal.App.4th 995, 1001 (Jones).) The court concluded the claim was forfeited, stating: "What appellant is arguing is that a more specific instruction, actually a pinpoint instruction, should have been given informing the jury that the objective test did not apply to reduction of the degree of murder. [Citation.] Defense counsel did not request such an instruction, and his failure to do so forfeits the claim on appeal." (Ibid.)
Jones's reasoning is applicable here. At its core, appellant's argument is that the trial court should have given another pinpoint instruction to clarify CALCRIM No. 522. "The longstanding general rule is that the failure to request clarification of an instruction that is otherwise a correct statement of law forfeits an appellate claim of error based upon the instruction given." (People v. Rundle (2008) 43 Cal.4th 76, 151, disapproved of on another ground by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) Appellant did not request such clarifying language below. Accordingly, the claim is forfeited.
D. Instructional error did not occur.
Even assuming appellant did not forfeit his instructional error claim, we would still conclude that such error did not occur.
Evidence of provocation was relevant to appellant's charges in two ways. First, "premeditation and deliberation may be negated by heat of passion arising from provocation." (Hernandez, supra, 183 Cal.App.4th at p. 1332; see Rivera, supra, Cal.5th at p. 328.) A rash and impulsive decision to kill is not premeditated and deliberate. (People v. Stitely (2005) 35 Cal.4th 514, 543.) "Thus, a subjective test applies to provocation as a basis to reduce malice murder from the first to the second degree: it inquires whether the defendant in fact committed the act because he was provoked." (Jones, supra, 223 Cal.App.4th at p. 1000; see People v. Lee (1994) 28 Cal.App.4th 1724.) In this context, provocation is not a defense, but a theory of reasonable doubt as to whether the offense was premeditated and deliberate. (People v. Ocegueda (2023) 92 Cal.App.5th 548, 557 (Ocegueda).)
Second, provocation may negate malice, thereby reducing murder to voluntary manslaughter, or attempted murder to attempted voluntary manslaughter. (People v. Beltran (2013) 56 Cal.4th 935, 942; People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.) However, that the defendant was "subjectively aroused to passion" is insufficient for this purpose. (Ocegueda, supra, 92 Cal.App.5th at p. 558.) Rather, the provocation must also meet an "objective criterion," meaning it must be "sufficient to cause a person of average disposition to act rashly and without deliberation." (Id. at p. 557; id. at pp. 557-558.)
Considering the above principles, we conclude the jury was properly instructed. In CALCRIM No. 521, the trial court instructed the jury that appellant was guilty of first degree murder only if he "acted willfully, deliberately, and with premeditation," and that "[a] decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premediated." In CALCRIM No. 522, the court instructed that provocation may reduce first degree murder to second degree murder and may also reduce murder to manslaughter. Finally, in CALCRIM No. 570, the court instructed that to reduce murder to voluntary manslaughter, the provocation must meet an objective standard. These instructions accurately stated the law.
Despite this, appellant contends that the instructions may have misled the jury into believing that provocation to negate premeditation and deliberation must also meet the objective standard for voluntary manslaughter. Two other appellate cases have rejected this claim. In Jones, the court reasoned that CALCRIM Nos. 521 and 522, when considered together, "informed jurors that 'provocation (the arousal of emotions) can give rise to a rash, impulsive decision, and this in turn shows no premeditation and deliberation.'" (Jones, supra, 223 Cal.App.4th at p. 1001.) CALCRIM No. 570 then instructed the jury that reduction to voluntary manslaughter "requires more" than subjective provocation. (Jones, at p. 1001.) Jones observed that it is "here, and only here," that the jury is instructed that subjective provocation alone is not enough for the reduction, but instead must meet an objective standard. (Ibid.)
Similarly, in Ocegueda, the court reasoned it would be "illogical" to read the pattern instructions as implying a single standard for provocation, because "there would be no circumstances under which murder could be reduced from first to second degree based on provocation without being further reduced to manslaughter." (Ocegueda, supra, 92 Cal.App.5th at p. 559.) This interpretation would also conflict with the language of CALCRIM No. 522, which states that provocation may reduce murder from first degree to second degree. (Ocegueda, at p. 559.) Ocegueda also explained that CALCRIM No. 570 specifies that it applies to "the provocation necessary 'for heat of passion to reduce murder to voluntary manslaughter.'" (Ocegueda, at p. 599.) Thus, Ocegueda concluded there was no reasonable likelihood the jury would have construed this objective provocation standard "to alter the requirement - plainly stated in CALCRIM No. 521 - that first degree murder must be deliberate and premeditated." (Ocegueda, at p. 559.)
We agree with the reasoning of Jones and Ocegueda. The instructions given in appellant's trial, when considered together, made clear that provocation as it pertains to premeditation and deliberation must be evaluated on a subjective standard. Accordingly, we have no reason to doubt the jury's ability to comprehend and apply the applicable provocation standards set forth in the instructions.
Appellant relies on CALCRIM No. 200, which states that words used in the jury instructions should be applied using their "ordinary, everyday meanings" unless the court instructs that the word has a specific legal meaning. According to appellant, this instruction compelled the jury to apply CALCRIM No. 570's objective provocation standard when evaluating provocation to negate premeditation and deliberation. But CALCRIM No. 570 does not define the term "provocation" in a manner different from the other instructions given. Instead, it specifies that in the context of heat of passion voluntary manslaughter, provocation must be evaluated under an objective standard. CALCRIM No. 200 did not suggest that the jury apply this standard elsewhere.
Appellant also contends that CALCRIM No. 640 contributed to the instructional error because it instructed the jury it may consider the different types of homicide in whatever order they wish. He suggests that this "blended" the jury's consideration of all types of homicide, sending the message that the definitions in each instruction were applicable to one another. We are not persuaded. In evaluating whether an instruction is misleading, we "assume that jurors are intelligent and well able to understand and integrate all the instructions given." (People v. Holmes, McClain and Newborn (2022) 12 Cal.5th 719, 791.) Nothing in this instruction implies that jurors should not apply the law as they were instructed as to each offense and lesser included offense.
Based on this record, appellant has not demonstrated a reasonable likelihood that the jury misunderstood the instructions in the way he asserts. The challenged instructions are not subject to an erroneous interpretation. Therefore, our de novo review reveals that this instructional error did not occur, and the claim is without merit.
Because we conclude the trial court did not commit instructional error, we need not address appellant's claim he was prejudiced by the instructions.
DISPOSITION
The jury's true findings on the gang-murder special-circumstance allegation (§ 190.2, subd. (a)(22)) and the gang enhancement (§ 186.22, subd. (b)(1)) as to count 1 are vacated. Appellant's sentence is vacated, and the matter is remanded for further proceedings. The People shall have the option to retry appellant regarding the gangmurder special-circumstance allegation and the gang enhancement as to count 1. If the People do not bring appellant to retrial within 60 days of filing the remittitur in the trial court pursuant to section 1382, subdivision (a)(2), or obtain a waiver of time by appellant, the trial court shall resentence appellant accordingly. In all other respects, the judgment is affirmed.
WE CONCUR: FRANSON, J., DE SANTOS, J.