Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. KA086195, David C. Brougham, Judge.
Leonard J. Klaif, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., and Kamala D. Harris, Attorneys General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Theresa A. Patterson and Robert David Breton, Deputy Attorneys General, for Plaintiff and Respondent.
BOREN, P. J.
A jury convicted Mario Guevara (appellant) of attempted murder (Pen. Code, §§ 187, subd. (a), 664) (count 1) and mayhem (Pen. Code, § 203) (count 2). The jury found that appellant personally discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)) and that he personally inflicted great bodily injury causing the victim to suffer paralysis of a permanent nature (§ 12022.7, subd. (b)).
All further references to statutes are to the Penal Code unless stated otherwise.
The trial court sentenced appellant to a total term of 32 years to life in state prison. For the attempted murder, the trial court imposed the midterm of seven years and a consecutive term of 25 years to life for the firearm use under section 12022.53, subdivision (d). For the mayhem count, the trial court imposed the midterm of four years and a consecutive 25 years to life for the firearm use. The trial court stayed the sentence in the mayhem count pursuant to section 654.
Section 654 provides that “[a]n act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision.”
Appellant appeals on the ground that the conviction for attempted murder must be reversed because the trial court erred in failing to instruct on attempted voluntary manslaughter as a lesser included offense of attempted murder. He contends in the alternative that the judgment in count 1 must be reduced to attempted voluntary manslaughter and remanded for a new sentencing hearing.
FACTS
Prosecution Evidence
On the night of December 27, 2008, Jasmine G., who was 15 at the time of trial, hosted a party at her home. The guests included Bobby C. While Jasmine was speaking with Bobby on the lawn, she witnessed an argument. Jasmine’s friend had turned the party into a “flyer party” to make money, and three or four “Mexican” males were at the gate asking for the return of their $10 entry fee. Jasmine and her friends laughed when one of these men had trouble getting out through her gate. The men got into a white car. Jasmine, who was standing with Bobby, saw the rear window of the car go down and a gun come out. Bobby pushed her on the ground as shots rang out. Bobby was shot and could not move.
Jasmine gave a statement to Detective Glen Eads of the Los Angeles County Sheriff’s Department shortly after the shooting. Jasmine looked at photographs with Detective Eads and pointed out a picture of appellant as the gunman. Jasmine told Detective Eads that it was the rear passenger who shot. She remembered the shooter because he was the one who had difficulty opening the gate latch.
Jasmine’s friend, Naomi G., saw five men getting upset when they were refused the return of their $10. They began insulting the girls who had collected the money. One of the men wore baggy clothes. The one wearing a red hat yelled, “These fools want to get blasted.” After the men got into their white car, Naomi saw a flash and heard gunshots. Naomi ran to Bobby, who said he could not feel his legs and was getting cold. He asked Naomi to get his mother. Police later took Naomi to identify the car, which had crashed nearby.
Deputy Quiana Birkbeck, who responded to the scene, saw that Bobby had five gunshot wounds. He had no weapons on him. Bobby’s mother testified that Bobby was 17 at the time of the party and had full use of his arms and legs. After being shot, he underwent surgery and was permanently confined to a wheelchair.
Leonard Gallegos, who testified under a grant of immunity, went to the party with appellant and three other friends. Gallegos was part of a tagging crew called AFS. Richard Ortiz drove the group to the party in his white Toyota Corolla. Ortiz paid for the group to enter. They all decided to leave after five minutes. Ortiz asked for his money back, but he did not get it. Gallegos and his friends “just start[ed] taking off, little by little.” No one in the group got mad about not getting the money back, and they went back to the car. Gallegos sat in the front passenger seat and appellant was in the middle of the rear seat. Gallegos saw perhaps two of the party-goers approach the car, and one had a knife. Gallegos’s entire group was in the car already. The guy with the knife was a couple of feet from the car. He just flashed the knife and tried to get Gallegos to come out. The car doors were shut and the windows were rolled up. When Ortiz started the car and they began to leave, Gallegos heard about four gunshots being fired from the backseat. He did not see who fired and did not know who the shooter was.
Gallegos had previously told Detective Eads that appellant was in the rear passenger seat. Gallegos wrote a statement for Detective Eads in which he said that appellant “shot the gun behind me.” Gallegos told Detective Eads in a second, recorded interview that appellant was the shooter. He identified appellant’s picture in a photographic lineup and wrote that, “Mario put his hand outside the car and shot the gun.” The recorded interview was played for the jury. Gallegos told the detective he did not see anyone with weapons approaching the car.
Ortiz was also granted immunity. He was the owner and driver of the white Corolla. Ortiz said he picked up appellant and Vincent Guerrero together to go to the party. Appellant was wearing a red beanie that night. Ortiz paid $10 so that he and his friends could enter the party. They saw that the backyard was empty of people, and they all wanted to leave because “there was no party.” Ortiz asked for his money back on his own, and he did not argue about it. He heard some yelling, but he was not sure it was directed toward the girl who took the money.
Ortiz did not see any people coming out of the house until he got in his car. The people were on the front lawn, and he heard arguing. He heard one girl say something about the Puente gang. He saw a weapon in one person’s hand. He was not scared because the people were not coming toward him but toward his car. Ortiz started his car and left. At that point he heard gunshots from behind him. Ortiz testified that he did not know where anyone sat in the car, but he told Detective Eads that appellant was in the rear passenger seat. He testified that he never saw appellant with a gun, and he did not remember telling the detective that he saw appellant shooting a handgun out of the rear passenger window.
Ortiz told Detective Eads that when he picked up appellant and Guerrero, he saw Guerrero with a small black handgun. Ortiz then saw appellant with the same gun tucked in his waistband as they left for the party. Ortiz said that Guerrero and appellant argued with other male party goers, and that one of the girls said it was a Puente party. Guerrero and appellant replied that they were from AFS. Ortiz and the others returned to the car, and as he was driving away, Ortiz heard shots. He saw appellant shooting out of the rear passenger window. The Corolla had power windows.
Bobby told Detective Eads that he was a member of the Villista clique of the Puente gang. Detective Eads was familiar with the Puente gang and its territory. Puente is a criminal street gang.
Defense Evidence
Appellant testified that he went to the party with his friends after one of them was invited by means of a text message from a female. Appellant wore a red beanie. Ortiz paid for all of them to enter, but they soon saw nothing was happening and decided to leave. There was only one man and a few girls in front. There was no gate, and appellant had no problems going out. Ortiz asked for his money back, but the girl who had taken it refused to return it. After they began arguing, the girl claimed it was a Puente party. Someone in appellant’s group mentioned AFS. A male guest wearing a blue bandana pulled out a knife, and appellant and his friends began backing up. Appellant believed the man was pointing his knife toward him and his friends. The man did not try to stab appellant, and appellant was not injured in any way. He was able to get inside the car, and Ortiz locked the doors and started the car. No one stormed the car and tried to remove appellant or anyone forcibly from the car. There had been no fighting before they all got into the car. Appellant did not say that “these fools want to get blasted.”
Appellant sat in the middle of the rear seat of the Corolla. Appellant did not have a gun in his possession. Appellant was scared because “this guy pulled out a big knife at us.” He knew Puente was an active gang that dealt drugs and did “a lot of things.” More men came from the back and began telling them “stuff.” One of them threw something at the car. Appellant at first stated that, after Ortiz started the car, “gunshots were fired” from the right side of the car, behind the front passenger. He then stated that he saw Guerrero take out a gun and shoot four times after rolling down the window. Ortiz had the gun originally. It was in his waist, and then he stashed it in the car. Ortiz handed the gun to Guerrero at some point. After the shots, Ortiz took off and then crashed the car. Appellant left the scene because he was scared the people would come after him.
Rebuttal Evidence
Appellant initially told Detective Eads that he was the last person to get in the car, and he was sitting behind the driver. He said people were throwing bottles at the car.
DISCUSSION
I. Appellant’s Argument
Appellant contends that the trial court erred in failing to instruct the jury on attempted voluntary manslaughter as he requested. According to appellant, the totality of the evidence shows that the jury could have found that he acted in the heat of passion or from an honest but unreasonable good faith belief that he and his friends were in danger. Therefore, the judgment in count 1 must be reversed. In the alternative, the judgment must be modified to reflect a conviction for attempted voluntary manslaughter and remanded for resentencing.
II. Proceedings Below
Defense counsel filed a request for special jury instructions and special additions to jury instructions. Among the instructions he requested were approximately 19 special instructions, nine CALJIC instructions and three CALCRIM instructions, among them CALCRIM No. 604, Voluntary Manslaughter: Imperfect Self-Defense—Lesser Included Offense. Before oral argument, the trial court read a list it had provided to counsel of the instructions it intended to give. Defense counsel stated he had submitted 19 additional jury instructions, “particularly the self-defense and the evaluation of witnesses. Is the court summarily rejecting the 19?” The trial court replied that “summarily” seemed a strong term, and added, “I appreciate the work you’ve put into this. To the extent that all of them, I believe, seek to amend the CALCRIM instructions, I believe the CALCRIM instructions are appropriately written....” Defense counsel replied that he believed the instructions were not complete, particularly as to the People’s burden of proof and the “real issue of the self-defense.” The trial court ruled that the relevant instructions provided by CALCRIM appropriately covered the factual scenario in the case and provided ample opportunity for both sides to argue their cases to the jury.
The numbering in defense counsel’s request was faulty, and some instructions were requested in the alternative.
The trial court instructed the jury with CALCRIM No. 600, Attempted Murder; CALCRIM No. 505, Justifiable Homicide: Self-Defense or Defense of Another; CALCRIM No. 3472, Right to Self-Defense: May Not Be Contrived; and CALCRIM No. 3474: Danger No Longer Exists or Attacker Disabled.
CALCRIM No. 505 on Justifiable Homicide (reasonable self-defense) was read to the jury as follows: “The defendant is not guilty of attempted murder if he was justified in attempting to kill someone in self-defense or defense of another. The defendant acted in lawful self-defense or defense of another if: [¶] 1. The defendant reasonably believed that he or someone else was in imminent danger of being killed or suffering great bodily injury. [¶] 2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger. [¶] AND [¶] 3. The defendant used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of great bodily injury to himself or someone else. Defendant’s belief must have been reasonable and he must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the attempted killing was not justified. [¶] When deciding whether the defendant’s beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendant’s beliefs were reasonable, the danger does not need to have actually existed. [¶] A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of great bodily injury has passed. This is so even if safety could have been achieved by retreating. [¶] The People have the burden of proving beyond a reasonable doubt that the attempted killing was not justified. If the People have not met this burden, you must find the defendant not guilty of attempted murder.”
C. Relevant Authority
A trial court has a sua sponte duty to instruct on all lesser included offenses that find substantial support in the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 148-149, 162 (Breverman).) “[T]he existence of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is ‘substantial enough to merit consideration’ by the jury. [Citations.] ‘Substantial evidence’ in this context is “‘evidence from which a jury composed of reasonable [persons] could... conclude[]”’ that the lesser offense, but not the greater, was committed. [Citations.]” (Id. at p. 162.) Thus, the trial court properly refuses to instruct on a lesser included offense when there is insufficient evidence to support the instruction. (People v. Daniels (1991) 52 Cal.3d 815, 868.)
Attempted voluntary manslaughter is a lesser included offense of attempted murder. (People v. Manriquez (2005) 37 Cal.4th 547, 583; People v. Gutierrez (2003) 112 Cal.App.4th 704, 708.) Attempted voluntary manslaughter, like attempted murder, requires proof of the intent to kill. (People v. Montes (2003)112 Cal.App.4th 1543, 1546-1552.) Unlike attempted murder, however, it does not require proof of malice. (Id. at p. 1548.) The element of malice is presumptively negated by a sudden quarrel or heat of passion, or when a defendant attempts to kill in an “‘unreasonable, but good faith, belief that deadly force is necessary in self-defense.’” (People v. Manriquez, supra, 37 Cal.4th at p. 583.)
“On appeal, we review independently the question whether the trial court failed to instruct on a lesser included offense.” (People v. Cole (2004) 33 Cal.4th 1158, 1215; People v. Waidla (2000) 22 Cal.4th 690, 733.)
D. Heat of Passion
“Heat of passion arises when ‘at the time of the [attempted] killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment.’ [Citations.]” (People v. Barton (1995) 12 Cal.4th 186, 201 (Barton).) Both sufficient provocation and heat of passion must be shown. (People v. Steele (2002) 27 Cal.4th 1230, 1252 (Steele).) The provocation must arise from the victim. (People v. Gutierrez, supra, 112 Cal.App.4th at p. 709.) Unless the People’s evidence suggests there was provocation, the burden is on the defendant to establish sufficient evidence of provocation and heat of passion. (People v. Rios (2000) 23 Cal.4th 450, 460-462; People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704.)
The heat of passion requirement for manslaughter contains an objective component and a subjective one. The defendant must actually and subjectively act under the heat of passion. The circumstances giving rise to the heat of passion, however, are also viewed objectively, requiring that the “passion” be one that would “‘naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances.’” (Steele, supra, 27 Cal.4th at p. 1252.) No defendant can have recourse to his own standard of conduct and declare his passions were aroused; rather, the jury must believe the circumstances were sufficient to arouse the passion of a reasonable man. (Ibid.)
The jury instruction for attempted voluntary manslaughter, heat of passion, CALCRIM No. 603, reads as follows: “An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill someone because of a sudden quarrel or in the heat of passion. [¶] The defendant attempted to kill someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The defendant took at least one direct but ineffective step toward killing a person; [¶] 2. The defendant intended to kill that person; [¶] 3. The defendant attempted the killing because he/she was provoked; [¶] 4. 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; [¶] AND [¶] 5. The attempted killing was a rash act done under the influence of intense emotion that obscured the defendant’s reasoning or judgment. [¶] Heat of passion does not require anger, rage, or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [¶] In order for heat of passion to reduce an attempted murder to attempted voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. [¶] It is not enough that the defendant simply was provoked. The defendant is not allowed to set up his 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 would have been provoked and how such a person would react in the same situation knowing the same facts. [¶] If enough time passed between the provocation and the attempted killing for a person of average disposition to ‘cool off’ and regain his or her clear reasoning and judgment, then the attempted murder is not reduced to attempted voluntary manslaughter on this basis. [¶] The People have the burden of proving beyond a reasonable doubt that the defendant did not attempt to kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of attempted murder.”
The evidence in this case undercuts any argument that the shooting occurred as a result of a sudden quarrel or heat of passion. Appellant contends that there was substantial evidence that Bobby’s conduct was sufficiently provocative such that it would cause the “‘ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection.’” (See Barton, supra, 12 Cal.4th at p. 201.) Appellant attributes to Bobby the following conduct: shouting out “Puente”—the name of a violent criminal street gang; chasing appellant and his friends while armed with a knife; throwing an object at the car after appellant and his friends got into the car; and challenging appellant and his friends to get out of the car and fight. The testimony, however, did not identify Bobby as the person who shouted a gang name and drew a knife on appellant and his companions. Neither appellant nor his two friends who testified identified Bobby as the one who drew the knife. Jasmine testified that she was talking to Bobby on the front lawn when the argument started about the money. Bobby was standing next to her as the men went to their car. She was still beside Bobby when he was shot, since he was able to push her to the ground when the firing began. Deputy Birkbeck found no weapons on Bobby. Moreover, as Jasmine talked to Bobby, appellant and his companions were already in the car with the doors locked and the engine running, ready to leave. There is no evidence that Bobby did or said anything to threaten the car’s occupants or that he engaged in any type of conduct that would cause an “‘ordinary person of average disposition to act rashly or without due deliberation and reflection.’” (People v. Manriquez, supra, 37 Cal.4th at pp. 583-584.) “The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim.” (People v. Lee (1999) 20 Cal.4th 47, 59.) In addition, appellant himself stated that he did not join in the argument about the money and he did not participate in any exchange about AFS. Thus, not only was there a lack of evidence of sufficient provocation by the victim but there was no evidence appellant was disturbed by passion to the degree that he acted rashly and without deliberation or reflection.
In light of the totality of the evidence, we conclude that an instruction on attempted voluntary manslaughter based on heat of passion was not warranted, and any error in the trial court’s failure to so instruct was harmless. Under the harmless error test of People v. Watson (1956) 46 Cal.2d 818 (Watson), it is not “reasonably probable” that appellant would have obtained a more favorable outcome at trial had a heat of passion instruction been given. (Watson, supra, at p. 836; see also People v. Moye (2009) 47 Cal.4th 537, 557-558.)
E. Imperfect Self-Defense
Unreasonable or imperfect self-defense is not an affirmative defense, but rather a description of one type of voluntary manslaughter. (People v. Cruz (2008) 44 Cal.4th 636, 664.) Unreasonable self-defense requires the defendant to have an actual, if unreasonable, belief that he is in imminent danger to his life or of suffering great bodily injury. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) In such circumstances, the defendant is deemed to have acted without malice and cannot be convicted of murder [or attempted murder] but only of [attempted voluntary] manslaughter. (Ibid.)
Appellant cites his version of the evidence, related ante, as support for his argument that the trial court should have read a jury instruction on attempted voluntary manslaughter based on unreasonable self-defense. Appellant claims that the instruction was warranted based on the threatening conduct of Bobby and his friends. According to appellant, since the trial court instructed on reasonable self-defense, it follows logically and legally that it should have instructed on the doctrine of unreasonable self-defense as well.
CALCRIM No. 604, the instruction requested by defense counsel, provides in pertinent part: “An attempted killing that would otherwise be attempted murder is reduced to attempted voluntary manslaughter if the defendant attempted to kill a person because he acted in imperfect self-defense or defense of another. [¶] If you conclude the defendant acted in complete self-defense or defense of another, his action was lawful and you must find him not guilty of any crime. The difference between complete self-defense or defense of another and imperfect self-defense or defense of another depends on whether the defendant’s belief in the need to use deadly force was reasonable. [¶] The defendant acted in imperfect self-defense or defense of another if: [¶] 1. The defendant took at least one direct but ineffective step toward killing a person. [¶] 2. The defendant intended to kill when he acted. [¶] 3. The defendant believed that he or someone else was in imminent danger of being killed or suffering great bodily injury. AND [¶] 4. The defendant believed that the immediate use of deadly force was necessary to defend against the danger. BUT [¶] 5. The defendant’s beliefs were unreasonable. [¶] Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have actually believed there was imminent danger of violence to himself or someone else. [¶] In evaluating the defendant’s beliefs, consider all the circumstances as they were known and appeared to the defendant. [¶]... [¶] The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in imperfect self-defense. If the People have not met this burden, you must find the defendant not guilty of attempted murder.”
Appellant relies on People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262 (Viramontes), for the proposition that “if the evidence is sufficient to support instruction on self-defense, it is also sufficient to support instruction on imperfect self-defense.” Appellant’s reliance on Viramontes does not aid his cause. In that case, the defendant was accused of shooting two brothers at a party in a dimly lit garage, resulting in convictions for murder and attempted murder. (Id. at p. 1259.) Although the defendant did not take the stand, two defense witnesses testified that they saw someone shoot at the defendant first. (Id. at pp. 1260, 1263.) Other witnesses testified to angry remarks, shoving between the brothers and the defendant, and a pause between the firing of a first shot and subsequent shots. (Id. at pp. 1259-1261, 1263.) Witness testimony stated, and forensic evidence established, that two guns were used—at least one shot was fired from one gun and at least seven shots were fired from the other gun. A bullet from one gun struck a jacket that the defendant may have been wearing at the time of the shooting. (Id. at p. 1263.)
The Viramontes court reversed and remanded for retrial on the basis that the trial court erred by instructing on self-defense and refusing to instruct on unreasonable self-defense. The appellate court concluded that if the jury believed the witnesses, it could find that the defendant actually believed he was in imminent peril and that deadly force was required to defend himself. The court reasoned that if the victim had indeed shot at the defendant first, the self-defense instruction was appropriate. If the jury believed the shot was fired by someone other than the victim, it could have found appellant’s belief in the need to defend himself against the victim was unreasonable, a factual basis for unreasonable self-defense. (Viramontes, supra, 93 Cal.App.4th at p. 1263.)
The evidence in the instant case does not establish two clear-cut scenarios, such as found by the Viramontes court. The evidence on which appellant based his claim of self-defense is the same evidence he cites in support of unreasonable self-defense, i.e., that a man from a vicious gang brandished a knife while facing the five men in the white car and telling them to come out. Evidence that appellant possessed an actual belief in the need to defend himself or his friends was clearly lacking. Not only was appellant protected from a knife attack by the automobile in which he sat and which was leaving the scene, but appellant specifically testified that he was not afraid when he heard someone shout “Puente” as he and his friends left the party.
More on point is the case of People v. De Leon (1992) 10 Cal.App.4th 815 (De Leon), in which the defendant appealed on the ground that the trial court failed to sua sponte instruct on unreasonable self-defense. (Id. at p. 817.) The defendant argued that, since the trial court found substantial evidence of self-defense to justify an instruction on that theory, there was necessarily substantial evidence of unreasonable self-defense. In De Leon, bystanders saw the defendant chase a man and fire at him with a gun. The bystanders apprehended the defendant and unsuccessfully attempted to disarm him while he threatened and cursed at them. When the bystanders released the defendant, he insulted them, took out his gun, and began firing. He killed one bystander and wounded another. The reviewing court found that, even though the trial court gave an instruction on reasonable self-defense, there was not substantial evidence that the defendant believed he was in imminent peril. Therefore, there was not substantial evidence for either reasonable or unreasonable self-defense instructions, and the defendant’s claim of error failed. (Id. at pp. 824-825.)
Likewise, in the instant case, the evidence simply does not tend to show that appellant believed he was in imminent danger of being killed or suffering great bodily injury and that the immediate use of deadly force was necessary to defend against the danger. The testimony most favorable to appellant’s position is that someone brandished a knife toward the men in the locked car that was pulling away from the curb when appellant fired approximately five times. According to the evidence, appellant and the knife wielder never came in close contact with each other, and appellant was protected from the knife by the body of an automobile with closed windows. Thus, appellant failed to show that he believed he faced an imminent peril that had to be “‘“instantly dealt with.”’” (In re Christian S. (1994) 7 Cal.4th 768, 783, italics omitted.)
We conclude that the evidence did not support the reading of either reasonable self-defense instructions or the instruction on unreasonable self-defense as a form of voluntary manslaughter. In the instant case, unlike in Viramontes, there was no evidence from any witness, including appellant, of appellant’s actual belief in the need to defend against imminent peril. Although appellant answered “yes” when asked if he was “scared, ” he stated that he and his friends were not threatened with the knife, and they all got safely back in the car.
Finally, we observe that it has been held that a lesser-included-offense instruction is not required where, as here, the defendant disclaims all responsibility for harming the victim. (See People v. Gutierrez, supra, 112 Cal.App.4th 704, 709 [“Generally, when a defendant completely denies complicity in the charged crime, there is no error in failing to instruct on a lesser included offense”]; People v. Sinclair (1998) 64 Cal.App.4th 1012, 1015, 1020-1022 [lesser included offense instructions need not be given when accused denies under oath any participation in charged offense] (Sinclair); People v. Medina (1978) 78 Cal.App.3d 1000, 1005-1006 [defendant not entitled to voluntary manslaughter instructions based on diminished capacity where defendant testified he was not even present when victim was killed]; cf. Barton, supra, 12 Cal.4th at pp. 201-202 [voluntary manslaughter instruction properly given over defendant’s objection where defendant had testified shooting death was accidental]; People v. Elize (1999) 71 Cal.App.4th 605, 615-616 (Elize) [lesser included instruction required even though factual premise underlying it is contrary to defendant’s testimony as long as substantial evidence exists in the entire record to support the premise].)
Sinclair noted that in Barton, supra, 12 Cal.4th 186, cited by appellant, which set out the “intellectual and jurisprudential underpinnings” of a trial court’s duty to instruct on inconsistent lesser included offenses, the defendant admitted shooting the victim. (Sinclair, supra, 64 Cal.App.4th at pp. 1020, 1022; see Barton, supra, at pp. 192-193.) In Barton, the defendant testified that he shot the victim by accident while screaming at the victim to drop his knife. (Barton, supra, at pp. 192-193.) Sinclair stated that Barton was entirely consistent with other Supreme Court decisions allowing voluntary manslaughter instructions to be read on request when the defendant admits shooting the victim but denies any intent to kill. (Sinclair, supra, at p. 1021.) Sinclair noted, however, that “no Supreme Court decision has held that when the defendant completely denies shooting the victim... voluntary manslaughter instructions are in order.” (Ibid.) In Elize, as well, the defendant’s gun was fired during a struggle, either accidentally or intentionally by him, depending on which witness was believed. (Elize, supra, 71 Cal.App.4th at pp. 607-609.)
In any event, we conclude that any error in the trial court’s failure to instruct on unreasonable self-defense was harmless under the test of Watson, i.e., that appellant would not have achieved a more favorable outcome had his requested instruction been given. (People v. Blakely (2000) 23 Cal.4th 82, 93 [failure to instruct on unreasonable self-defense is state law and subject to the harmless error test of Watson, supra, 46 Cal.2d 818, 836].) Appellate review under Watson “focuses not on what a reasonable jury could do, but what such a jury is likely to have done in the absence of the error under consideration. In making that evaluation, an appellate court may consider, among other things, whether the evidence supporting the existing judgment is so relatively strong, and the evidence supporting a different outcome is so comparatively weak, that there is no reasonable probability the error of which the defendant complains affected the result.” (Breverman, supra, 19 Cal.4th at pp. 177-178, fn. omitted.)
The prior statements of two of appellant’s companions and the evidence of Jasmine as to the identity of the shooter constitutes very strong evidence. The testimony of appellant’s companions, in which they recanted their earlier voluntary statements and suffered a lack of recall with regard to both the contents of these statements and the events on the night in question was not only comparatively, but absolutely, weak. Appellant’s testimony that he was scared when the man pulled out a knife and pointed it at him and his friends provided weak support for any finding that he believed he was in imminent danger of suffering death or great bodily injury. The evidence showed that he was in a locked car with the engine running and about to leave with his friends when he lowered the window, thrust his arm out, and shot Bobby five times. Appellant admitted that there was no fighting, the man did not try to stab him, and no one tried to storm the car and remove appellant and his friends. Thus, any error was harmless, and appellant’s argument fails. There was no justification for an instruction on either form of attempted voluntary manslaughter.
The recording of Gallegos’s interview with Detective Eads, which was played for the jury, offered compelling evidence that appellant and his friends were already in the car when appellant fired.
DISPOSITION
The judgment is affirmed.
We concur: ASHMANN-GERST, J., CHAVEZ, J.