PEOPLE v. GONZALEZ

Appellant's Petition for Review

Cal.January 19, 2011

ue i f i. b mw u , JZ C189856 CM.Supreme Court No. #7 &47&4 4 >) pe IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLEOF THE STATE OF ) Court of Appeal No. D055698 CALIFORNIA, ) Superior Court No. FVA024527 ) Plaintiff-Respondent, ) ) V. ) ) PERLA ISABEL GONZALEZ, ) ) Defendant-Appellant. ) _ ) Appeal From the Superior Court of San Bernardino County Honorable Michael A. Knish, Judge PETITION FOR REVIEW LAURA SCHAEFER State Bar No. 138801 BOYCE & SCHAEFER 934 23rd Street San Diego, CA 92102-1914 (619) 232-3320 Attorney for Defendant-Petitioner PERLA GONZALEZ Supreme Court No. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF ) Court of Appeal No. D055698 CALIFORNIA, ) Superior Court No. FVA024527 ) Plaintiff-Respondent, ) ) Vv. ) ) PERLA ISABEL GONZALEZ, ) ) Defendant-Appellant. ) ) Appeal From the Superior Court of San Bernardino County Honorable Michael A. Knish, Judge PETITION FOR REVIEW LAURA SCHAEFER State Bar No. 138801 BOYCE & SCHAEFER 934 23rd Street San Diego, CA 92102-1914 (619) 232-3320 Attorney for Defendant-Petitioner PERLA GONZALEZ Table of Contents Page Table of Authorities 2.0.00... 0.cece eee tenet teen nn enee ili, iV PETITION FOR REVIEW ooo.etter e nee een ed 1 QUESTION PRESENTED 20.cette tere nee ees 2 NECESSITY FOR REVIEW000.0 nena 2 STATEMENT OF THE CASE AND FACTS 2.00... 20.ens 5 ARGUMENT 2.0.eeeeee tent ete ene nee 5 1, I. Ii. IV. THE TRIAL COURTS ERRONEOUS INSTRUCTION TO THE DELIBERATING JURY, PERMITTING THEM TO FIND PETITIONER PREMEDITATED THE MURDER BASED ON MORALES’ MENTAL STATE, WAS PREJUDICIAL 2...nee 5 THE TRIAL COURT SHOULD HAVE INSTRUCTED THE JURY THAT THE HOMICIDE OF MORALES MUST HAVE BEEN LAWFUL AND JUSTIFIED IN SELF-DEFENSE TO FIND APPELLANT GUILTY OF PROVOCATIVE-ACT MURDER oo...eee 7 PETITIONER’S CONVICTION FOR PROVOCATIVE- ACT MURDER VIOLATES THE FOURTEENTH AMENDMENT BECAUSE THE EVIDENCE WASINSUFFICIENT TO SUSTAIN THE CONVICTION.10 THE TRIAL COURT’S FAILURE TO INSTRUCT THE JURY IT COULD NOT CONVICT PETITIONER BASED ONLY ON HER ACCOMPLICE’S PROVOCATIVE ACTS VIOLATED PETITIONER’S DUE PROCESS RIGHT 2...eeeete ee eens 14 THE TRIAL COURT COMMITTED PREJUDICIAL ERRORBY FAILING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF INVOLUNTARY MANSLAUGHTER 2.2.00 000.00. 0.000.000 00005 16 VI CONCLUSION.0cece17 Certificate of Word Count Proof of Service APPENDIX 1 Table of Authorities CASES Beck v. Alabama (1984) 47 U.S. 625 20.cette eens 17 Conde v. Henry (2000) 198 F.3d 734 20.ceeee 10, 15 Estelle v. McGuire (1991) 502 U.S. 62 0.0.ceeee 10, 15 Hennessy v. Goldsmith (9" Cir. 1991) 929 F.2d 511 0.0...eee 10 Hopper v. Evans (1982) 456 U.S. 005 20.eeeeee ee 17 In re Joe R. (1980) 27 Cal.3d 496 20ees 11, 12, 13 In re Aurelio R. (1985) 167 Cal.App.3d 52 0.0...eeeeens 11, 13 Jackson v. Virginia (1979) 443 U.S. 307 20.cccete ees 10 People v. Antick, supra, 15 Cal.3datp.88 0.0.0.0... cc ce ee 8, 10, 11, 15 People v. Avena (1996) 13 Cal.4th 394 20.cceects 17 People v. Beeman (1984) 35 Cal.3d 547 0.0.cette een 3 People v. Briscoe (2001) 92 Cal.App.4th 568 0.0.0.0 00.eee 8, 13 People v. Caldwell (1984) 36 Cal.3d 210 20.0... 0c.eeeeee 8, 11 People v. Cervantes (2001) 26 Cal4th 860 0... 0...cccence eee 8 People v. Concha (2009) 47 Cal.4th 653 00...eeenes 3,5, 6 People v. Cox, supra, 23 Cal.4th at p.676 0.0.0...eectteens 16 People v. Garcia (1°99) 69 Cal.App.4th 1324 2...eeeee 14 People v. Hayden (1994) 22 Cal.App.4th 48 00...een 17 ill People v. Humphrey (1996) 13 Cal.4th 1073 .. 0.eeeeee ees 8 People v. Martin (1980) 101 Cal.App.3d 1000 0.0.0.0... eeeee 9 People v. McCoy (2001) 25 Cal4th 1111 00.ccceee 10 People v. Miller (2008) 164 Cal.App.4th 653 2.0.0...een 3 People v. Salas (2006) 37 Cal.4th 967 0.0...ccc cence eens 16 People v. Superior Court (Shamis) (1997) 58 Cal.App.4th 833 2.0.0.0... 000.0005. 15 People v. Thompkins (1987) 195 Cal.App.3d 244 0.0.0... ccceee 3 JURY INSTRUCTIONS CALCRIM 560 oo.eeene ten tenet eens 5, 8, 14, 15 CALCRIM 561 oo.cecedeeb eee eee e eee eey 14 CALCRIM No. 3474 00.etenent nent nent e nee 9 UNITED STATES CONSTITUTION Fifth Amendment ......0..0.00 000 ceceee nee ee been eee ne nas 2, 10 Fourteenth Amendment ...... 00... 00.000 ccc eeenena 2, 10, 13 Sixth Amendment 2.0... 0.0000. c eceee eee eee eee eee nes 2,10 iv Supreme Court No. IN THE SUPREME COURT OF THE STATE OF CALIFORNIA THE PEOPLE OF THE STATE OF ) Court of Appeal No. D055698 CALIFORNIA, ) Superior Court No. FVA024527 ) Plaintiff-Respondent, ) ) Vv. ) ) PERLA ISABEL GONZALEZ, ) ) Defendant-Appellant. ) ) Appeal From the Superior Court of San Bernardino County Honorable Michael A. Knish, Judge PETITION FOR REVIEW To The Honorable Ronald M. George, Chief Justice, And The Honorable Associate Justices Of The Supreme Court Of The State Of California: Petitioner and appellant, Perla Gonzalez, seeks review in this Court following an unpublished decision of the Court of Appeal, Fourth Appellate District, Division Onefiled December9, 2010, affirming petitioner's convictions for premeditated attempted murder (§§ 664/187, subd. (a)) and first degree murder (§ 187, subd. (a)). A copy of that decision is attached to this Petition as Appendix "A". QUESTION PRESENTED 1. Whetherthe trial court prejudicially erred by failing to instruct the jury that petitioner must have personally acted with premeditation and deliberation to be found guilty of first degree provocative act murder? 2. In a prosecution for provocative act murder, is the trial court required to instruct the jury on principles of self-defense where there is evidence the actual perpetrator of the killing committed an independent criminal act and did not act in lawful self-defense? 3. Whether insufficient evidence supported petitioner’s conviction for provocative act murderin violation of the Fourteenth Amendment to the United States Constitution? 4, Whetherthe trial court violated petitioner’s Fifth, Sixth and Fourteenth Amendment rights to due process andajury trial by failing to instruct the jury it could not convict petitioner ofprovocative act murderifthe accomplice committed the acts causing his own death? 5, Whetherthetrial court violated petitioner’s Fifth and Fourteenth Amendmentrights ofdue process anda fairtrial by refusing petitioner’s request for an instruction on the lesser included offense of involuntary manslaughter? NECESSITY FOR REVIEW A jury convicted petitioner of first degree provocative act murder. The trial court failed to instruct the jury that they mustfind petitioner personally acted with premeditation and deliberation, required for a first degree murder conviction based on a provocative act theory. (People v. Concha (2009) 47 Cal.4th 653) During deliberations, the jury requested instructions on second degree murder, and the court referred the jury to the erroneous instructions informing them they could convict petitioner of first degree murder based on a finding that her accomplice alone premeditated and deliberated the crime. A majority ofthe Court ofAppeal foundthis error was harmless beyond a reasonable doubt. In dissent, Justice Cynthia Aaron reasonedthat the error was not harmless beyond a reasonable doubt because (1) the deliberatingjury requested an explanation ofsecond degree murder; (2) the court gave them the incorrect instruction, and (3) evidence of the accomplice’s culpable mental state was stronger than petitioner’s, increasing the likelihood that this jury, struggling with the issue of petitioner’s mental state, relied on the erroneous instruction to convict petitioner of first degree murder. In deliberations, the jury requested guidance on evaluating her mental state. Thetrial court misguided the jury at a critical time on a critical issue. As dissenting Justice Aaron noted, citing People v. Thompkins (1987) 195 Cal.App.3d 244, 252-253, there is no category ofmisinstruction that is more prejudicial. (See also, People v. Beeman (1984) 35 Cal.3d 547, 562-563 [likelihood ofprejudice increased when court provides erroneousinstructionsto the jury during deliberations]; People v. Miller (2008) 164 Cal.App.4th 653 [same].) The majority of the Court of Appeal assessed prejudice based on an evaluation of whether a “hypothetical” rational jury could find petitioner premeditated and deliberated. This standard transfers to the Court of Appeal the jury’s function of deciding guilt beyond a reasonable doubt with proper legal guidance. The question is not, as framed by the Court ofAppeal, whetherthere is “evidence before [the appellate court] show[ing] a rational jury would have found Perla personally deliberated and premeditated,” but whether the prosecution has proved beyond a reasonable doubtthat this jury did notfind petitioner’s guilt based on an incorrect legal principle. Review should be granted to provide guidanceto the courts of appeal regarding the evaluation of prejudicial error. Review should also be granted to determine whether the prosecution must prove beyond a reasonable doubt that the alleged victim killed lawfully in self defense to find a defendant guilty of murder under the provocative act doctrine. Here, the evidence established that the alleged victim shot petitioner’s accomplice three times in the back as he ran from him, and again while the accomplice was laying on the ground. The jury was not instructed that they must find the alleged victim /aw/ully killed in self-defense to find petitioner guilty of murder. The Court of Appeal held that the provocative act doctrine is governed exclusively by principles of proximate cause, and there is no requirementthat the killing be lawfully perpetrated. No reported cases squarely addressthis issue, but courts have stated the use of lethal force must be privileged and lawful. This Court should address the unresolved question of whether the prosecution must prove the killing was lawful to find a defendant guilty of first degree murder. STATEMENT OF THE CASE AND FACTS The factual and procedural history ofthe case stated in the Court ofAppeal’s opinion is sufficient for the purpose ofthis petition, except as otherwise noted. 1. THE TRIAL COURT’S ERRONEOUS INSTRUCTIONTO THE DELIBERATING JURY, PERMITTING THEM TO FIND PETITIONER PREMEDITATED THE MURDER BASED ON MORALES’ MENTAL STATE, WAS PREJUDICIAL Recently, in People v. Concha, supra, 47 Cal.4th 653, this Court held that first degree murderliability is available for provocative-act murder, but only ifa properly instructed jury finds defendant personally acted wilfully, deliberately, and with premeditation. Here, the jury was instructed it could find petitioner guilty of first degree premeditated attempted murder based on Morales’ state ofmind only. During deliberations, the jury sent the court a note requesting an instruction on second degree murder. (2 CT 405.) The court referred the jury to CALCRIM 560, whichreferred the jury back to the instruction that allowed them to find petitioner premeditated the murder based on Morales’ mentalstate only. A majority of the Court of Appeal concluded the court committed error, but foundit harmless beyond a reasonable doubt. (Opinion, p. 32-33.) The Court reasoned that there was evidence in the record to support a rational jury’s finding that petitioner premeditated the crime based on petitioner’s planned assault on Canas; driving to the scene with the loaded G n rifle; and handingtherifle to Morales. (Opinion,p. 33.) This evidence also supports a second degree murder without premeditation or an assault with a firearm, Petitioner’s counsel in closing argued that petitioner was not aware of Morales’ plan, and even if she was awareofthe plan, the plan wasto beat up Canas, not kill him. (9 RT 1749-1752.) Petitioner did not make any statements during the attack and did not immediately grab the gun whenthe twostarted fighting, but only took the gun out when it appeared Canas was winningthe battle. The issue of petitioner’s mental state was vigorously contestedat trial; it was the critical issue for a properly instructed jury to decide. As the dissenting Justice pointed out, the question is not whether a “hypothetical” rational jury could find petitioner premeditated and deliberated, but whetherthis jury could have foundpetitioner’s guilt based on their application ofthe trial court’s erroneous legal instruction. The Court of Appeal majority, quoting People v. Concha (2010) 182 Cal.App.4th 1072, 1089, states it was required to “review the entire record to determine whether it is clear beyond a reasonable doubt that a rational jury would have made the necessaryfindings ofpremeditation and deliberation absent the error.”[\talics in original. ] (Opinion, p. 30.) This does not meanthat the appellate court should operate in a vacuum and “ignore the fact that the actual jury specifically requested an instruction on second degree murder and that in response the court directed the jury to an instruction that misstated the critical intent element.”[Italics in original.] (J. Aaron, Dissenting and Concurring Opinion, p. 4-5.) The majority failed to take into account the juror’s question and the court’s incorrect response in assessing prejudice. Review should be granted to provide the courts of appeal with guidance regarding the assessmentof prejudicial error. I. THE TRIAL COURT SHOULD HAVE INSTRUCTED THE JURY THATTHE HOMICIDE OF MORALES MUST HAVE BEEN LAWFUL AND JUSTIFIED IN SELF-DEFENSE TO FIND APPELLANT GUILTY OF PROVOCATIVE-ACT MURDER The undisputed evidence was that Canas shot the unarmed Moralesthree timesin the back while Morales retreated. A jury could have concluded that Canas was not legally justified in killing Morales, which would have cut offpetitioner’s liability for the homicide. The issue ofwhether Canasactedjustifiably should have been submitted to the jury with self- defense instructions. The Court of Appeal held no self-defense instruction as to Canas was required because “the issue of whether the killing was lawfully justified is rooted in principles of proximate cause, not self-defense.” (Opinion, p. 36.) To establish murder based on a provocative act theory, the prosecution is required to prove the killing is net an independent criminalact; ifthe killer has no privilege to use lethal force, then liability for provocative act murder should be cut off. When “the defendant or his accomplice, with conscious disregard for life, intentionally commits an act that is likely to cause death, and the victim or police officer kill in reasonable responseto such an act, the defendantis guilty of murder.” [Emphasis added.] (People v. Caldwell (1984) 36 Cal.3d 210, 216. fn. 2; People v. Antick, supra, 15 Cal.3d at p. 88.) The provocative act doctrine “has traditionally been invoked in cases in which the perpetrator of the underlying crime instigates a gun battle, either by firing first or by otherwise engaging in severe, life-threatening, unusually gun wielding conduct, and the police, or a victim of the underlying crime, responds withprivileged lethal force by shooting back and killing the perpetrator’s accomplice or an innocent bystander.” [Emphasis added.] (People v. Cervantes (2001) 26 Cal.4th 860, 867.) Underthe provocative act doctrine, the inquiry should focus on “an objective view of the facts” rather than on the “crime victim’s state of mind.” (People v. Briscoe (2001) 92 Cal.App.4th 568, 593.) An essential part of such an objective inquiry must be whetherthe victim’s response was objectively reasonable, requiring a jury determination of whether a person in the victim’s situation would have responded as did the victim. (See People v. Humphrey (1996) 13 Cal.4th 1073, 1083.) The underlying premiseis that the victim is acting lawfully in self-defense in perpetrating the killing as a reasonable response to a dilemma thrust upon himor her by the provocative acts of the defendant or his accomplice. If the perpetrator engagesin an “independent criminalact,” the accused’s liability for the homicide is cut offby this superseding intervening event. (See CALCRIM 560; People v. Cervantes, supra, 26 Cal.4th 860, 874.) The jury must be instructed on the relevant legal principles to determine whetherthe actual perpetrator engagedin an “independentcriminalact”or instead waslegally justified in his act of killing. Thus, although provocative act murder is “rooted in principles of proximate causation,” the jury must be guided on the principles relevant to their determination of whetherthe perpetrator engaged in an “independentcriminal act” or whetherthe use of lethal force was justified and privileged. In this case, where the evidence suggests the actual perpetrator was notlegally justified in shooting the accomplice three timesin the back while he retreated and once as helaid on the ground, the jury should have been instructed that it must find Canas acted in self defense before they could find petitioner guilty of murder. If Canas was no longer in danger wherehe usedlethal force, the killing would not be justified self-defense. (CALCRIMNo. 3474; People v. Martin (1980) 101 Cal.App.3d 1000, 1010.) The jury could have determined that Canas wasnotacting in self-defense at the time he shot Morales. When Canas shot Morales in the back, Morales was running away from Canas. (2 RT 327-328.) Although Canas had a right of self-defense when he was first attacked by Morales and struggled over the gun with him,this does not establish that Canas acted in self-defense when he shot Morales while Morales retreated. Because Morales retreated before Canas mortally shot him in the back, the issue should have been submitted to the jury to determine whether Canas’ actions werejustified. Wherea trial court fails to properly instruct the jury regarding an element of the charged crime, the court commits “‘a constitutional error that deprives the defendant of due process.’” (Conde v. Henry (2000) 198 F.3d 734, 741, quoting Hennessy v. Goldsmith (9" Cir. 1991) 929 F.2d 511, 514.) Here, the trial court failed to adequately instruct the jury regarding the provocative act doctrine in violation of appellant’s due process andjury trial rights. (Estelle v. McGuire (1991) 502 U.S. 62, 72.) The error deprived petitioner of her Fifth and Fourteenth Amendmentright to due process and her Sixth Amendmentright to a jury trial. (Conde v. Henry, supra, 198 F.3d at p. 741.). HI. PETITIONER’S CONVICTION FOR PROVOCATIVE- ACT MURDER VIOLATES THE FOURTEENTH AMENDMENT BECAUSE THE EVIDENCE WAS INSUFFICIENT TO SUSTAIN THE CONVICTION. The Due Process Clause ofthe Fourteenth Amendmentis violated when the evidence is insufficient to sustain a finding of guilt beyond a reasonable doubt. VJacksonv, Virginia (1979) 443 U.S. 307, 317.) Here, petitioner was convicted of murder based on hervicarious liability for the acts of her accomplice, Fernando Morales. But because Morales could not himself have been guilty of his own murder, Morales’ provocative acts cannot be used to convict petitioner of murder. (People v. Antick (1975) 15 Cal.3d 79, 91-92, overruled on other grounds in People v. McCoy (2001) 25 Cal4th L111.) Petitioner’s acts alone were not sufficiently egregious to provoke a lethal response, and her conviction for first degree murder, not supported by sufficient evidence, violates the Fourteenth Amendment. Ina prosecution for provocative-act murder, the state must prove beyond a reasonable 10 doubt the following two elements: (1) the defendant or his non-decedent accomplice must intentionally commit an act that involves a high degree of probability that the act will result in death; and (2) the conduct of the defendant or his non-decedent accomplice must be sufficiently provocative of a lethal response by a third party to support a finding of malice. (People v. Caldwell (1984) 36 Cal.3d 210, 216-217; Inre Joe R. (1980) 27 Cal.3d 496, 504.) “To satisfy the ‘mens rea’ element, the defendant or his confederate must know that his act has a ‘high probability’ not merely a ‘foreseeable possibility’ of eliciting a life-threatening response from the third party.” Ure Aurelio R. (1985) 167 Cal.App.3d 52, 57.) “To satisfy the ‘actus reus’ element of this crime the defendant or one of his confederates must commit an act which provokesa third party into firing the fatal shot.” (/bid.) The jury did not believe petitioner discharged the gun becauseit found the allegation that petitioner dischargeda firearm not true. (2 CT 412.) Thus, her murderliability would have to be based on heract of giving Morales the gun with the hammerpulled back. A person whoinitiates a gun battle in the course of committing a felony intentionally and with a conscious disregard for life commits an actthatis likely to cause death. (People v. Antick, supra, \5 Cal.3d at p. 91.) The defendant mustinitiate the gun battle or engage in a life-threatening act that proximately causes the decedent’s death to be guilty of provocative-act murderas the following cases demonstrate. In In re Joe R., supra, 27 Cal.3d 496, this Court reversed a provocative-act murder conviction where there was no evidenceof“life-threatening acts” on the part of a minor who 11 aided and abetted in the crime of armed robbery. In Joe R., the minor and his accomplice robbed a Taco Bell at gunpoint, and while fleeing the scene stopped to rob another victim, Anderson, who was waiting at a bus stop. Anderson was taken to a remote area where Joe hit him from behind while the accomplice held Anderson at gunpoint. Anderson managed to wrest the accomplice’s gun from him and shot the accomplice while Joe fled the scene. Ud. at p. 501.) On appeal, the minor argued the evidence was insufficient to sustain his murder conviction based on the provocative act doctrine. This Court held that the minor’s acts of moving the victim from relative safety, his repeated threats and references to the accomplice’s gun, and the minor’s hitting the victim on the back of the head did not constitute provocative acts sufficient to imposeliability for the murder of his accomplice. Ud. at pp. 506-507.) Although the minor’s punching the victim Anderson was a malicious act taken in conscious disregard for life and could have allowed the accomplice to prevail and shoot Anderson, the act did not provoke Anderson’s lethal resistance and was not the proximate cause of the accomplice’s death. Unre Joe R., supra, 27 Cal.3d at p. 507.) The court noted that none ofthe minor’s acts initiated the deadly assault which predictably produceda lethal response from the victim. (/bid.) Here, the Court of Appeal concluded there was sufficient evidence to sustain petitioner’s murder conviction because she planned the assault and handedthe loadedrifle 12 to Morales after Canas go the better of him in the fight. (Opinion, p. 15.) Although she drove with Morales to the scene and may have been aware of a plan to beat up Morales, these were not malicious acts performed in consciousdisregardforlife that would provoke lethal resistance from Canas. Further, there was no evidence petitioner intended to kill Canas during the confrontation. (Compare with Jn re Aurelio R. (1985) 167 Cal.App.3d 52 [evidence that defendant wentto rival gang territory intending to kill a rival gang member sufficient to support his provocative-act murder conviction].) Petitioner’s act of handing the gun to Morales did not constitute a provocative act taken in conscious disregard for life. As in Joe R., Morales had already initiated a lethal battle with Canas by stabbing Canas with a knife. “By necessity, the provocative act must occur before a victim may make a lethal response.” (People v. Briscoe (2001) 92 Cal.App.4th 568, 584.) Canas waslegally justified in using lethal force to prevent the attack by Morales before petitioner gave Morales the gun. Although handing Morales the gun would have allowed Morales to prevail and shoot Canas, the act of handing off the gun did not provoke Canas’ lethal reaction; Morales caused his own death by initiating the lethal battle. This case is close to Joe R. in that there was insufficient evidence that petitioner’s conduct in aiding and abetting the attempted murder provoked Canas’ use of lethal force against Morales. Petitioner’s conviction violates the Fourteenth Amendmentbecauseit is not supported by sufficient evidence. 13 IV. THE TRIAL COURT’S FAILURE TO INSTRUCT THE JURY IT COULD NOT CONVICT PETITIONER BASED ONLYONHERACCOMPLICE’S PROVOCATIVE ACTS VIOLATED PETITIONER’S DUE PROCESS RIGHT CALCRIM provides two instructions on the provocative act murder doctrine, CALCRIM 560 and 561. Thetrial court erroneously instructed the jury with CALCRIM 560, not the correct instruction, CALCRIM 561. When the prosecution proceeds undera theory that the provocative act was committed by the defendant, the court should instruct with CALCRIM No. 560. When the prosecution proceeds underthe theory that provocativeacts were committed by an accomplice, as in this case, CALCRIM No. 561 is recommended. (Bench Note, CALCRIM No. 560.) A critical distinction between CALCRIM Nos. 560 and 561 relevantto this case is the language instructing the jury to find the defendant not guilty if they decide that the only provocative acts that caused the accomplice’s death were committed by the accomplice. A bracketed portion ofCALCRIM No. 561 provides: “[Ifyou decide that the only provocative actthatcausedsss’s death wascommittedby , then the defendant is not guilty of __—_—’s murder.}” The Bench Notes to CALCRIM No.561 state: “If a deceased accomplice participated in provocative acts leading to his or her own death, give the bracketed sentence that begins, “If you decide that the only provocative act that caused _..” (CALCRIM No.561, citing People v. Garcia (1999) 69 Cal.App.4th 1324, 1330; 14 People v. Superior Court (Shamis) (1997) 58 Cal.App.4th 833, 846; People v. Antick, supra, 15 Cal.3d at p. 90.) The court’s erroneousinstruction allowedthejury to convict petitioner ofprovocative- act murder based only on the acts of Morales, the decedent. The law on provocative-act murder, however, clearly prohibits a conviction for the murder of a decedent accomplice based on provocative acts committed by the same decedent accomplice. (Antick, supra, \5 Cal.3d at p. 91.) Morales was the aggressorin the fight and petitioner’s counsel argued at trial that he alone initiated the confrontation and provokedthe lethal response. (9 RT 1741, 1749-1750, 1762-1763, 1769, 1773.) Where trial court fails to properly instruct the jury regarding an element of the charged crime, the court commits constitutional error that deprives the defendant of due process. (Conde v. Henry, supra, 198 F.3d 734, 741.) Thetrial court erroneously instructed the jury regarding the provocative act doctrine in violation of petitioner’s due process and jury trial rights. (Estelle v. McGuire (1991) 502 U.S. 62, 72.) The Court ofAppeal held CALCRIM 560 adequately conveyedthe principle that the prosecution must provethat petitioner’s acts, not Morales,’ proximately caused the death. (Opinion, p. 24.) Although, as the court points out, CALCRIM560 informed the jurythat the prosecution was required to prove petitioner committed a provocative act, the jury was also instructed they could find petitioner committed the provocative act based on her aiding and abetting Morales in the commission of the provocative act. (2 CT 363-371.) Thus,it 15 would not be inconsistent for the jury to find petitioner aided and abetted Morales in the crime of attempted murder, but that it was Morales’ provocative acts only that caused Canas’ death and provokedthe lethal response. The omitted instruction allowed the jury to find petitioner’s guilt based on Morales’acts in violation ofher federal constitutional right ofdue process. V. THE TRIAL COURT COMMITTED PREJUDICIAL ERRORBY FAILING TO INSTRUCT THE JURY ON THE LESSER INCLUDED OFFENSE OF INVOLUNTARY MANSLAUGHTER Defense counsel requested the court instruct the jury on involuntary manslaughter (§ 192, subd. (b)) based on petitioner’s act of brandishing the gun (§ 417). (2 RT 1597- 1600.) The trial court refused to instruct the jury on the lesser included offense of | involuntary manslaughter, stating that petitioner’s handing the gun to Morales proved she acted with conscious disregard for life. (8 RT 1617-1618.) The Court of Appeal adopted this reasoning. (Opinion,p. 39.) In determining whether an instruction on a lesser included offense is required, the court does not determinethe credibility of the defense evidence, but only whether there was evidence which,if credited by the jury, was sufficient to raise a reasonable doubt. (People v. Salas (2006) 37 Cal.4th 967, 982.) Depending on the circumstances surrounding their commission, assault or brandishing may be predicate misdemeanors for an involuntary manslaughter conviction. (People v. Cox, supra, 23 Cal.4th at p. 676 16 [assault and battery]; People v. Hayden (1994) 22 Cal.App.4th 48, 58 [brandishing].) Here, the jury could have concludedpetitioner’s act of brandishing the gun was dangerous to humanlife, but was not an act conducted with conscious disregard forlife. The jury could have found that petitioner brought out the gun intending to scare Canas and end the fight, not kill Canas. The evidence supported this factual scenario. Petitioner did not bring out the gun until Canas got the better of Morales, suggesting she did not plan to kill. Because the facts support either a conscious disregard forlife or just an intent to scare, the jury should have been provided with the option of convicting petitioner of involuntary manslaughter, not murder. Due process requires that the jury be instructed on a lesser included offenseif the evidence warrants such an instruction. (Hopper v. Evans (1982) 456 U.S. 605, 611; People v. Avena (1996) 13 Cal.4th 394, 424.) Thetrial court’s failure to instruct on the requested lesser included offense deprived appellant of her federal constitutional rights of due process. (Beck v. Alabama (1984) 47 US. 625, 634 [the right to instructions on lesser included offenses is an aspect of fundamental fairness].) VI. CONCLUSION For the foregoing reasons, petitioner requests this Court grant review to settle these important questions of law. Respectfully submitted, DATED:January 18, 2011 AGefoo—— LAURA SCHAEFER \ J Attorney for Petitioner 17 CERTIFICATE OF WORD COUNT I, Laura Schaefer, counsel for petitioner certify pursuant to the California Rules of Court, that the word count for this documentis 4,117 words. This document was prepared in Word Perfect with 13 point Times New Romanfont, andthis is the word count generated by the program for this document. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed this 18th day of January, 2011, at San Diego, California. ‘LAURA SCHABFER _ Attorney for Petitioner PERLA GONZALEZ 18 People v. Gonzalez Proofof Service I, the undersigned, say: I am over eighteen years of age, a resident ofthe County of San Diego, State of California, not a party in the within action, my business address is 934 23rd Street, San Diego, County of San Diego, State of California 92102; on this date I mailed the PETITION FOR REVIEW,addressed as follows: Office of the Attorney General Carolyn Youngberg, Esq. 110 West A Street, Suite 1100 Deputy District Attorney Post Office Box 85266 17830 Arrow Blvd. San Diego, CA 92186-5266 Fontana, CA 92335 Appellate Defenders,Inc. Perla Isabel Gonzalez X36162 555 West Beech Street, Suite 300 503-241Low San Diego, CA 92101 P.O. Box 1508 Chowchilla, CA 93610 Clerk of the Superior Court for: Hon. Michael A. Knish Sean O’Connor, Esq. San Bernardino County Attorney at Law 17780 Arrow Highway 10535 Foothill Blvd., Suite 300 Fontana, CA 92335 . Rancho Cucamonga, CA 91730 Fourth Appellate District, Division One 750 B Street, Suite 300 San Diego, CA 92101 The above copies were deposited in the United States mail, first class postage prepaid, on January 18, 2011, at San Diego, California. I certify under penalty of perjury that the foregoing is true and correct. Executed January 18, 2011, at San Diego, California. “Dano O02 Darys Avilos APPENDIX , Court of Appeal Fourth Districg LED DEC 09 agp CERTIFIED FORPUBLICATION Stephen M. Kelly, Clerk . DEPUTY COURT OF APPEAL, FOURTH APPELLATE DISTRICT DIVISION ONE “STATE OF CALIFORNIA _ THE PEOPLE, | | D055698 ~. Plaintiff and Respondent, vu | . (Stiper. Ct. No, FVA024527) PERLA ISABEL GONZALEZ, Defendant and Appellant: | APPEAL from a judgment of the Superior Court of San Bernardino County, - MichaelA. Knish, Commissioner. Affirmed. Laura G. Schaefer, under appointment by the Court of Appeal, for Defendant and Appellant. | | Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Gil Gonzales and William M. Wood,Deputy Attorneys General, for Plaintiff and Respondent. Roberto Canas-Fuente (Canas) killed Fernando Morales, the boyfriend of eo appéllant Pela]isabel Gonzalez (Perla), during a fight between Morales and Canas. Morales, along with Perla, his accomplice, ambushed Canas as he wass picking up his daughter at a street corner. Canas at the time did not know either Morales or Perla. Duringthe fight, Morales pulled outa knife with a three- to four-inch blade, thrust it at Canas andcut him in the cheek. After Canas threw Morales to the ground, Morales got up.and ran to Perla, who had been standing about 10 feet away,by her car, anxiously watching the fight. From her car, Perla grabbeda rifle she had brought to assault Canas, cocked it, pointed it at Canas and then handledit to Morales. Afraid for his life, Canas ran at Morales. During the struggle for the weapon, Canas was shot three times. Although wounded, Canasgained control oftherifle and a few secondslater shot and _ killed Morales, as Morales ran away. Perla was tried and convicted on a provocative act murder theory of the attempted murder of Canas and ofthe first degree murder of Morales. She appeals. FACTUAL AND PROCEDURAL BACKGROUND BecausePerla challenges the sufficiency of the evidence, we describe in detail the facts surrounding the killing. ! | A. The People's Case Canas and his wife Joan Curiel were married but separated inMay 2005. Curiel was living with Ricardo Gonzalez (Ricardo), Perla's brother. Also living with Curiel and Ricardo was the minor child of Curiel and Canas (daughter), Curiel's other children and Curiel's mother Rosalba Osguera-Alvarez (Osguera). Canas and Curiel shared custody of their daughter. However, because Canas and | Ricardo did not get along, Canas typically picked up his daughter ata prearranged location near Curiel's residence. Before the shooting, Canas and Ricardo had argued several times on the telephone and had at least one physical altercation outside of Curtel's home. Each blamed the other as the cause of their feud. On the evening ofMay 21, 2005, Curie! called Canas, who wotked as an emergency room technician, to arrange for treatment for Osguera. Curtel dropped Osgueraoffat the hospital where Canas worked. After Osguera returned home, Curiel and Ricardo began arguing over whether Curiei had lied to him about "partying" with Canas while Ricardo was away. During their argument, Canas called and spoke to Curiel. According to Ricardo, Canas bragged that heand Curiel had been intimate while 1 As discussed post, we are required to view the evidencein the light most favorable to the judgment of conviction. (See People v. Osband (1996) 13 Cal.4th 622, 690.) Certain portions of the factual and proceduralhistory related to Perla's claimsoferror are discussed post, in connection with those issues. 3 Ricardo was in Mexico.2 Canas understood Curiel to say she did not want Ricardo in the home and Canas could hear children screaming in the background. Concerned for his | daughter, Canas immediately left work and drove to Curiel's residence. When Canas arrived, Curiel was leaving the house with her children, including their daughter. Ricardo was not far behind. As Curiel drove off with the children, Ricardo got into his car and followedher: Canas in turn got back inside his car and followed Ricardo. Canastestified he pulled along side Ricardo, rolled down his window and yelled, "What the fuck are you thinking? Thekids are in the car.. Knock it off."3 After Canas cut off Ricardo, Ricardo tookoff in the opposite direction of Curtel, Canas followed Ricardo to make sure Ricardo did not continue following Curiel and the children, then returned to Curiel’s home and called the police. Ricardo also called the police. | Later that evening, after the police had left, Ricardo's mother Beatrice Gonzalez (Beatrice), Perla, Morales and Ricardo's brother Jorge Gonzalez(Jorge) met outside Curiel's home. Ricardo discussed what had happened with Canasearlier that evening. Beatrice argued with Curiel and told Curiel that her son did not need such problems. 2 Curie] testified at trial that she and Ricardo did not fight that evening about whether she and Canas had beenintimate while Ricardo was in Mexico, or about whether Ricardo should moveout of her house. 3 Ricardo disputes Canas's version of events,and testified Canas actually cameafter him, banged on his car and told him, "I want to ‘kick your ass." WhenRicardo drove off, . Canas got backinto his car and according to Ricardo, Canas followed closely behind Ricardo and attempted to run him off the road as Ricardo drove behind Curiel. 4 Perla told Curiel that if anything happened to Ricardo, they were going to "kick [Canas's]| n ass. Asthey stood outside Curiel's home, Jorge testified that Canas continuedto call the house and argue with Ricardo, Finally, Jorge answered the telephone and agreed to fight Canasa short distance from Curiel's house. Jorge, his friend, Perla and Moralesall drove to a nearby street corner and waited about 20 minutes for Canasto arrive. Jorge testified that Morales had a "B.B. gun"rifle in the car and that Morales shotit out the car window while they waited for Canas. When Canas failed to show,the group went back - to Curiel's house and everyone left for the night. _ The next moming, Perla went to Jorge's house. Perla told Jorge that Curiel had told herthat Canas was going to be picking up his daughter and Perla wanted Jorge to come with her to intercept and "beat up" Canas because he was harassingRicardo. Before Jorge left with Perla, Jorge grabbed a baseball bat. Jorge testified he intended to breakCanas's car windows with the bat. Perla and Jorge next wentto pick up Morales. As Jorge walked around Perla's car, he saw a light brown rifle in theback. They all drove to Curiel's house. On the drive over, Jorge told Moralesthat Jorge was going to fight with Canas and break Canas's car windowswith the bat. Morales agreed to help Jorge if Canas got the upper hand in the fight. - | Jorge knocked on the front door of Curiel's house and asked to speak with his brother Ricardo, While he was waiting at the door, he saw Canas's daughter and knew Canas had not picked her up yet. Jorge leftthe house and walked back to the car, where 5 : Perla and Morales waited. They next drove to the intersection near Curiel's house where they had waited for Canas the night before, After waiting at the intersection for a time, they decided to leave. However, Perla's car would not start. Jorge alone started running back to Curiel’s house to get help while Perla and Morales waitedat the car. As Jorge ran, he passed Osguera, who was walking Canas’s young daughter to the street corner to meet Canas. Another of Curiel's children (minor) followed behind Osguera and Canas's daughter. Minor, who was 15 years old at the time oftrial and 13 years old at the time of the killing, testified she passed Jorge who was.quickly walking in the opposite direction, toward Curiel's home. Minor caught up with Osguera and Canas's daughter, andsaw | Morales, whom she knew, further down the road underthe hood ofthe car. Minoralso saw Perla, Minortestified she and Osguerawere waiting for Canasto tell him to leave withhis daughter because Morales and Perla werethere waiting for him and minor knew that Canas and Ricardo had argued the night before. Osguera testified Perla approached her and told her to leave. After about 10 minutes, Canas'arrived at the intersection. Canas drove past Perla’s broken-down car and stopped near Where Osguera, his daughter and minor waited. Canas opened his driver side door and beckoned Osguera to approach. Osguera hastily approached Canas and told him to take his daughter and leave. At the same time, Morales—whoCanas did not then know-—-approached Canas and said, "Hey, puto, | heard you had a problem." Canas initially thought Morales was joking. Canas saw Perla, whohealso did not knowat the time, standing near the trunk of her car, staring at him 6 about 10 feet away. Canas told Osguera to get his daughter in the car and leave just as Morales started throwing punches. Osguera drove off in Canas's car with his daughter. _ Canas started to throw punches back at Morales. Canas next saw Moralespull a three- to four-inch knife from his waistband,raise it near his ear and point it at Canas. ~ Morales then lunged at Canas and cut Canas on theleft side ofhis face. Morales cameat - Canas again with the Knife. Canas ducked, grabbed Morales's legs, lifted him up and slammed him to the ground on his back. Morales quickly got up and ran towards Perla. Canas saw Perla moveto the passenger side of the car, reach inside and meet Morales near the trunk with a “rifle type weapon" in her. hand. Before Perla handedtherifleto ‘Morales, Canas saw her "cock it" by pulling backthe hammerof the gun. Perlaalso - pointed the rifle at Canas.4 Scared for his life, Canas ran at Morales. During the struggle, the rifle discharged multiple times and Canassuffered three gun shot wounds. Canas wrestled the rifle away from Morales, who got up and began to run away: Perla also began to run. Afraid both ‘Morales and Perla intended to do him more harm, Canaspointedtherifle at Morales and fired. Moralesbuckled andfell face down on the ground, 4 Osgueratestified that she saw Perla pick up from her car what she thought was a stick until she realized it was a firearm, point it at Canas and fire two or three shots in his direction. We note the jury foundthe allegation not true that Perla intentionally discharged a firearm during the commission of attempted murder, as provided in Penal Code section 12022.53, subdivision (c). However, it did find truethe allegation that Perla used a weapon as provided in section 12022.53, subdivision (b). Thusit is possible the jury concluded Perla fired the weapon, but not intentionally. 7. Canastestified he shot in the direction of Morales about five to ten secondsafter he gained control of'the rifle. Canas could nottell whether the shots were hitting Morales. until he fell to the sidewalk. Canasfired therifle at least three times untilit ran out of ammunition. Canas went to Morales to makesure he did not have any additional weaponson- him. Canas next looked for Perla because he wasafraid she still intended to harm him. Canas saw Curiel drive up in her cat. start screaming and leave. Canasstill did not know his attackers or why they attacked him. Canas also saw minorstanding by an unoccupied car. About a minute or two later, Canas saw Curiel drive up again. This time, however, a brown car driven by Ricardo was following closely behind Curiel. Canassaw . Perla and an unidentified man, later determined to be Jorge, riding in Curiel's car, Still concerned he wouldbe attacked, Canas spied Perla as she got out of the car and approached Morales. Perla started screaming at Canas for help. Still holding the rifle, which was out of ammunition, Canas responded, "You are kidding me;right? He just tried to kill me. You want me to help you? ... You deal with it." Perla dragged Morales to Curiels car, put him inside and they transported him to the hospital. _ Morales died from multiple gunshot wounds. Onebullet entered his right chest and lodged in the chest cavity; one bullet entered his right back side and exited his stomach; andone bullet entered to the right of his back midline, severed his spinal cord andlodged in his vertebrae. Whenpolice arrived at the scene, they confiscated a .22 semi-automaticrifle with | _ amagazine capacity of 14. Police found several expended .22 long-rifle shells casings anda pocket knife, with the blade closed, in the street. Police also found a baseball bat in Perla's car and a "bullet strike" in a newly constructed building near the crime scene. Inside Perla's car, police found a roll of red duct tape that matched the red "xX" on the back of her car's rear license plate, ostensibly put there to obscure the plate number. ' B. Defense Case Beatrice, the mother of Ricardo, Jorge andPerla, testified Ricardo called her the nightbefore the killing in an agitated state and informed her that while driving Canas had followedhim in his car. Beatrice in turn called Jorge and Perla. That evening,they all met outside Curiels home. Ricardo talked about another incident involving Canas, where Ricardo claimed Canas had struck him and then thrown him into the bushes. Perla was upset by Canas's alleged mistreatment of her brother and told Ricardo that if Canas ever struck him again, "they" would.beat up Canas. Marlen Morales, the sister of Morales, testified she was a "little" angry with Perla over the death of her brother. About four to eight days after he waskilled, Marlen and her other brother went to the location of the shooting and discovered a “pointy” knife. Shetestified the knife had a black handle, was about 10 inches long, and was a "little dirty." She kicked the knife into a "bush. area! because, she testified, she did not want her other brother to see it and suffer more. Marlen had no explanation why she neglected to tell the detective investigating her brother's murder, during an interview about eight days after his death, aboutthis knife. C. Rebuttal Canastestified he had no weaponsin his possession, including a knife, the day Morales attacked him. Canasalso testified he no weaponsin his car, he did not see the knife described by Marlen at the crime scene or in anyoneelse's possession, and theonly knife he saw on the day of the killing was the one Morales had that was shorter than the one described by Marlen. D. Chargesand Conviction Perla was charged with attempted premeditated and deliberate murder (Pen. Code,>§§ 664, 197 [count 1]) and murder (§ 187 [count 2]). It was furtheralleged that Perla personally used, and personally and intentionally discharged, a firearm in-the commission of the attempted murder (§ 12022.53, subds. (b), (c)). A jury found Perla guilty of attempted premeditated and deliberate murder and first degree murder. The jury also found the personal use allegation true. The trial court _ sentenced Perla to state prison for a term of 25 yearsto life on the murder conviction and a concurrent life term, enhanced with the upper term of 10 years for use of the firearm, on the attempted murder conviction. 5 All further statutory references are to the Penal Code unless specified otherwise. 10 DISCUSSION A. Substantial Evidence Perla contends the evidenceis insufficient to support her first degree murder conviction under the provocative act murder doctrine because none of her acts was sufficiently egregious to provide a deadly response from Canas. 1. Standard ofReview Our inquiry follows establishedprinciples of review. “in determiningwhether the evidenceis sufficient to support a conviction a ‘the relevant question is whether,after viewing the evidencein the light most favorable to the prosecution, any rationaltrier of fact could have found the essential elements of the crime beyond a reasonable doubt. [Citations.] Under this standard,‘an appellate court in a criminal case... does not ask itself whetherit believes that the evidenceat the trial established guilt beyond a reasonable doubt." {Citation.)" (People v. Vy (2004) 122 Cal.App.4th 1209, 1224, _ quoting Jackson v. Virginia (1979) U.S. 307, 319 [99 S.Ct 2781] "Rather, the reviewing court ‘must review the whole record in the light most favorable to the judgment: below to determine whetherit discloses substantial. evidence—that is, evidence which is reasonable, credible, and of solid value—suchthat.a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]" Ubid.) 2. Governing Law | "The provocative act murder doctrine has traditionally been invoked in cases in which theperpetrator of the underlying crime instigates a gun battle, either by firingfirst oil or by otherwise engaging in severe, life-threatening, and usually gun-wielding conduct, and the police, or a victim of the underlying crime, respondswith privileged lethal force by shooting back and killing the perpetrator's accomplice or an innocent bystander. |Citations.|" (People v. Cervantes (2001) 26 Cal4th 860, 967: see also People v. Concha (2009) 47 Cal.4th 653, 663 (Concha J) [the provocative act murder doctrine is Shorthand "'for that category of intervening-act causation cases in which, during commission of a crime, the intermediary (ie, a police officer or. crime victim) 18 provoked by the defendant's conduct into [a responsethatresults] in someone's death.’ {Citation.}") Underthis doctrine, "'[w]hen the defendant or his accomplice, with a conscious disregard for life, intentionally commits an act that is likely to cause death, and his victim or a police officer kills in reasonable response to suchact, the-defendant is guilty of murder. In such a case, the killing is attributable, not merely to the commission of a felon, but to the intentional act of the defendant or his accomplice committed with conscious disregard forlife." (Citation. ]" (People v. Cervantes, supra, 26 Cal.4th at p. 868.) "However, the defendantis liable only for those unlawful killings proximately caused by the acts of the defendant or hisaccomplice. ({People v.| Roberts [1992] 2 Cal.4th [271,] 320.) 'In all homicide cases in which the conduct of an intermediary is the actual cause of death, the defendant's liability will depend on whetherit can be - demonstrated that his own conduct proximately caused the victim's death ....' (Peoplev. Cervantes[, supra,| 26 Cal.4th fat p.| 872.) '[U]f the eventual victim's death is not the natural and probable consequence of a defendant's act, then liability cannotattach. 12 ({People y.| Roberts, supra, 2 Cal.4th at p. 321 .) Our prior decisions make clearthat, where the defendant perpetrates an inherently dangerons felony, the victim's self- defensive killing is a natural and probable response. (See, e.g., People v. Gilbert (1965) 63 Cal.2d 690, 705: Peoplev. Caldwell (1984) 36 Cal.3d 210, 220-222.)" (Concha J, supra, 47 Cal.4th at p. 661.) | A key issue regarding the application of the doctrineis whether the defendant committed a provocativeact (e.g., the physical or "actus reus” element) that proximately caused (e.g., the mental or "mens rea" element) the killing, (ConchaI, supra, 47 Cal.Ath at p. 660; People v. Briscoe (2001) 92 Cal.App.4th. 568,582 ["Cases often discuss these two elements [actus reus and mensrea] in terms of whether the defendant committed a provocative act which proximately caused the killing."]) To constitute a provocative act, the defendant "must commit an act that provokes a third party to fire a fatal shot." (People v. Briscoe, supra, 92 Cal.App.4th at p. 582.) "In | cases In Which the underlying crimedoes not involve an intent to kill .. . the mere -participation in the underlying criminal offense is not sufficient to invoke the doctrine of | provocative act murder." (Ud. at pp. 582-583.) In addition, the conduct must demonstrate malice, which is properly implied when "the defendant commits an act with a high probability that it will result in death, anddoes so with a base antisocial motive or a _ wanton disregard for humanlife.” id at p. 583.) "Unless the defendant's conductis sufficiently provocative of a lethal response, it cannot support the findingof implied | malice necessary for a verdictof. guilt on a murder charge. (Citations. Thus,acentral inquiry in determining a defendant's criminal lability for a killing committed by a 13 resisting victim is whether the defendant's conduct was sufficiently provocative of lethal resistance to support a finding of implied malice. {Citations.]" (id. at p. 583.) "The prosecutor must also establish that the defendant's conduct proximately | caused the killing. Courts use traditional notions of concurrent and proximate cause in order to determine whether the killing wasthe result of the defendant's conduct. [Citations. | To be considered the proximate cause of the victim's death, the defendant's . ~ act must have been a substantial factor contributing to the result, rather than insignificant or merely theoretical. [Citations.] A defendant's provocative acts must actually provoke a victim: response resulting in an accomplice's death. [Citation.]" (People v. Briscoe, supra, 92 Cal.App.4th at pp. 583-584,fn. omitted.) ; "The timing of events is critical. By necessity, the provocative act must occur before a victim may make a lethal response. [Citation.] There may be more thanoneact | constituting.the proximate cause of the killing. {Citations.] If the defendant commits several acts but only one of them actually provoked a lethal response, only that act may constitute the provocative act on which culpability for provocative act murder can be based. [Citations.] When the chain of causation is somewhat attenuated, the jury decides whether murder liability attaches or not. [Citations.]" (Peoplev. Briscoe, supra, 92 Cal.App.4th at p. 584; see also People y. Roberts, supra, 2 Cal4th at p. 320, fn. 11 ["|T]here is no bright line. demarcating a legally sufficient proximate cause fromone that is too remote," and thus "lo}rdinarily the question will be for the jury, though in some instances undisputed evidence may reveal a cause so remote that a court may properly decide that no rational trier of fact could find the needed nexus."}) 14 3. Analysis ‘Perla argues she did not engage in any acts in conscious disregard forlife that would provoke a lethal response from Canas, inasmuch as she neitherinitiated the assault against Canas nor intended to kill him or anyone else. | The evidence inthe record, as found by the jury, shows otherwise. Perla had the rifle in the car before she picked up Jorge; it was her idea to meet and assault Canasat the location where Canas intended to pick up his young daughter; Perla wanted to assault Canas because heallegedly was harassing her brother Ricardo; when Morales started fighting with Canas, Perla stayed near the car where the rifle was located; after Canas appeared to eet the upper hand on Morales, Morales pulled a knife on, and cut; Canas; - after Canas threw him to the eround, Morales next ran backto the car where Perla was . waiting: Perla grabbed herrifle from her car, cocked it and pointed it at Canas before she handedit off to Morales, ostensibly for him to use against Canas, Canas, fearing for his " life when he sawPerla handthe rifle to Morales, ran-at Morales and the two strugeled over the rifle; during their struggle, Canas was shot three times; and after Canas wrestled the rifle away from Morales, within a few seconds Canas shot Morales. We conclude this evidence, which is substantial, amply supports the jury's implied finding that Perla's conduct, as opposed to that of her accomplice (see People v. Antick (1975) 15 Cal.34 79, 91-92, disapproved on other groundsas stated in People v. McCoy (2001) 25 Cal.4th 1111, 1122), was sufficiently provocative of a lethal response from Canas. (See People v. Briscoe, supra, 92 Cal.App.4th at > 583 conduct thatinitiates a gun battle may constitute a provocative act|.)' "A defendant can be liable for the unlawful 15 killings of both the intended victim and any unintendedvictims. '"[TJhere is no requirement of an unlawful intent to kill an intended victim. The law speaks in terms of an unlawful intent to kill a person, not the person intended to be killed"' {Citations.}" (Concha I, supra, 47 Cal.4th at p. 660.) | In addition, we note the jury also found Perla committed attempted murder of _Canas and personally used a firearm in connection with the attempt, . Significantly, we | note Perla is nor challenging the jury's explicit finding she “intended to kill" for purposes of attempted murder. Attempted murder is a provocative act sufficient to support murder liability, (See People v. Gallegos (1997) 54 Cal.App.4th 453, 460-461.) Certainly, the jury was entitled to consider the inferences Perla urges in this appeal. (e.g., her acts were insufficient to provoke a lethal response from Canas, and she did not _ ‘intend to kill). (People y Roy (1971) 18 Cal.App.3d 537, 552, disapproved on other eroiinds as stated in People v. Ray (1975) 14 Cal.3d 20, 32 ["Sufficiency of provocation and whether a defendantin fact acted under such provocation are questions of fact for the — jury"],disapproved on other grounds as stated in People v. Lasko (2000) 23 Cal.4th 101, 110.) Just as certain, however, the jury also was entitled to reject those inferences. (See People v. Hillhouse (2002) 27 Cal.4th 469, 496; see also People v. Carter (2005) 36 Cal4th 1215, 1257-1258.) For the same reasons, we conclude there is sufficient evidence to support the jury's Gmplied) finding that Perla's provocative acts proximately caused the killing of Morales. Thatis, there is abundant evidence in the record to support the finding that Morales's death was the "natural and probable consequence"of Perla's acts of cocking the rifle she 16 brought to assault Canas. (See Concha I, supra, 47 Cal.4th at p. 661.) A reasonable jury could infer from such evidence that Perla’s acts proximately caused the killing. B. Instructional Error—-CALCRIMNos. 560 and 561 Perla next complains the trial court erred whenit instructed the jury on provocative act murder using CALCRIM No.560, rather than CALCRIM No.561 J CALCRIM No. 560 provides: "[The defendant is.charged [in Count | with .| The defendant is [also] charged [in Count. _| with murder. A person can be guilty of murder underthe provocative act doctrine even if _ someoneelse did the actual killing. "To prove that the defendantiis guilty of murder underthe provocative act doctrine, the People must provethat: "1. In (committing/[or] attempting to commit) the defendant intentionally did a provocativeact; "2. The defendant knew that the naturaland probable consequencesofthe provocative act were dangerous to humanlife and then acted with conscious distegard for life; , "3. In responsetothe defendant's provocative act, killed, "AND "4. 's death was the natural and probable consequence‘ofthe defendant's provocative act. "A provocative actis an act: "1. [That goes bevond what is necessary to accomplish the underlying crime>;| "TAND "2.| Whose natural and probable consequences are dangerous to human life, because there is a high probability that the act will provoke a deadly response. death; "AND "3, 's death would not have happened if the defendant had not committed the provocative act. "A. substantialfactor is more than a trivialor remote factor. However, it does not need to be the only factor that caused the death. " "TThe People alleged that the defendant committed the following provocative acts: . You may notfind the defendant guilty unless you all agree that the People have proved that the defendant committed at least one of theseacts. However, you do not al! need to agree on whichact.] " ["A defendant is not guilty of murder if the killing of ___ was caused solely by the independent criminal act of someone else. An independent criminal act is a free, deliberate, and informed criminal act by a person whois not acting ‘with the defendant.| " "(Tf you decide that the defendant is guilty of murder, you must decide whether the murder |is first or second degree. "To prove that the defendant is guilty of first degree murder, the People must provethat: “I. As a result of the defendant's provocativeact, was killed during the commission of__; "AND "2. Defendant intended to commit _ when (he/she) did the provocative act. "In deciding whether the defendant intended to commit andwhether the death occurred during the commission of , you should refer to the instructions | have given you on ___; __. "Any murder that does not meet these requirements for first degree murder 1is second degree murder.| 18 "Tf you decide that the defendant committed murder, that crime is murder in the second “aceree.|" 7 CALCRIM No. 561 provides: "[{The defendant is charged [in Count _| with . _____.] The defendantis [also] charged [in Count withmurder. A person can be guilty of murder under the provocative act doctrine even if someoneelse did the actualkilling. "To prove that the defendantis guilty of murder under the provocative act doctrine, the People must provethat: "1. The defendant was an accomplice of in (committing/ [or] attemptingto commit) _ , —_ "2. In (committing/ [or] attempting to commit) , | intentionally did a provocative act; "3, knew that _ the natural and probable consequences of the provocative act were dangerous to human. life and then acted with conscious disregard for life; "4, In response to 's provocative act, killed= death wasthe natural and probable consequenceof 's . provocativeact. "A provocative act is an act: "{ [That goes beyond what is necessary to accomplish the underlying crime>;} "TAND "2.| Whose natural and probable consequencesare dangerous to humanlife, because there is a high probability that the act will provoke a deadly response. if the defendant is subject to’prosecution for the identical offense that you conclude (committed/ [or] attempted to commit). The defendant is subject to prosecution if (he/she) (committed/ [or] attempted to commit) the crimeorif: 19 "1. (He/She) knew of 's criminal purpose to commit ; "AND "2. The defendant intended to, and did in fact, (aid, facilitate, promote, encourage,. or instigate the commission of _!/ [or] participate ina criminal conspiracy to commit ). {An accomplice does not need to be present when the crime is committed. On the other hand, a person is not an accomplice just because he orshe is at the scene of a crime, even if he or she knowsthat a crime [will be committed or] is being committed and does nothing to stop it.} "In order to prove that 's death wasthe natural and probable consequence of 's provocative act, the People must prove that: "1. A reasonable personin 's position would have foreseen that there was a high probability that (his/her/their) act could begin a chain of events resulting in someone's death; "2. 's act was a directandsubstantial factoriin causing 's death, "AND "3. 'S death would not have happened if _____ had not _ committed theproprovocative act, "A substantial factor is more than a trivial or remote factor. However, it does not need to: be the only factor that caused the death. . “ "(The People alleged the following provocative acts: . You may not find the defendant guilty unless you all agree that the People have provedthat: "1, committed at least one provocativeact; "AND "2. At least one of the provocative acts committed by - 20 "(If you decide that the only provocative act that caused deceased accomplice> death was committed by: accomplice>, then the defendantis not guilty of accomplice> murder.| 's "TA defendantisnot guilty of murderif the killing of was caused solely by the independent criminal act of someone other than the defendant or . "An independent criminal actis a free, deliberate, and informed criminal act by a-person whois notacting with the defendant.| " "(If you decide that the defendant is guilty of murder, you must decide whetherthe murderis first or second degree. "To prove that the defendantis guilty offirst degree murder, the People must provethat: "tL As aresult of 's provocative act, _—s_ was killed while (was/were) . committing ; "AND , , "2. - specifically intended to commitss when (he/she/they) did the provocative act. "In deciding whether intended to commit and whether the death occurred during the commission ofss, you should refer to the instructions I havegiven you on . "Any murder that does not meet these requirements, for first degree murder 1is second degree murder.| "TE you decide that the defendantcommitted murder, that crime is murder in the second degree.|" , 2h 1. Forfeiture Generally," '[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence wastoo general or incomplete unless theparty has requested appropriate clarifying or amplifying language.'" (People v. Hart (1999) 20 Cal.4th 546, 622; People v. Fiu (2008) 165 Cal.App.4th 360, 370.) . Here, the record showstrial counsel hadmyriad discussions regarding thejury instructions, including CALCRIM No. 560 which defense counsel referred to on several occasions as the governing instruction for provocative act murder. Moreover, before the court instructed the jury, it asked trial counselif there were any further objections to the instructions or requests for additional instructions. Both theprosecutor and defense counsel responded no. | Although Perla's claim of instructional error was forfeited, we address the merits 7 of that claim in light of her alternative argument that defense counsel rendered ineffective assistance by failing to request CALCRIM No. 561 in lieu ofNo. 560. (See Peoplev. Williams (1998) 61 Cal.App.4th 649; 657 [addressing the merits of a claim, despite its forfeiture, because defendant asserted ineffectiveassistance of counsel].) | 2. No Instructional Error Perla contends the trial court erred by instructing the jury on provocative act murder under CALCRIM No.560, rather than CALCRIM No.561, which she claims is the recommendedinstruction when the provocative acts are committed by an accomplice. Perla contends there is a "critical distinction" between the twoinstructions based on the language of No. 561, which instructs the jury to find the defendantnotguilty if it decides 22 the provocative acts that caused the accomplice's death were committed only by the accomplice, and not the defendant. Thus, she contends the alleged instructional error permitted the jury to convict her of murder based solely on the provocative acts of “Morales, contrary to the law of provocative act murder, "In reviewing a claim oferror in jury instructions in a criminalcase, this court mustfirst consider the jury instructions as a whole todetermine whether error has been committed. [Citations.] We may not judge a single jury instruction in artificial isolation, but must view it in the context of the charge and the entire trial record." (People v. _ Moore (1996) 44 Cal.App.4th 1323, 1330-1331; see also People v. Guiton (1993) 4 Cal.4th 11 16, 1130 [in examining the question of prejudice from instructional error, an appellate court should look to the entire record, including the evidence and arguments of counsel].) | "An appellate court cannot set aside a judgment on the basis of instructional error unless, after an examination of the entire record, the court concludesthatthe error has resulted in a miscarriage ofjustice. [Citation.] A miscarriage ofjustice occurs only whenit is reasonably probable that the jury would have reacheda result more favorable , to the appellant absent the error. [Citations]" (People v. Moore, supra, 44 Cai.App.4th at 8. The portion of CALCRIM NO.561 relevant to this analysis provides: “ : "(If you decide that the only provocative act that caused 's death was committed by .__—, then the defendant is not guilty of's _ murder.|" 23 p. 1331; see also People v. Kelly (1992) 1 Cal.4th 495, 525 [when a defendant claims that a jury instruction misstated the law, a reviewing court considers the charge in its entirety to determine whether there is a reasonable likelihood that the jury misunderstood the applicable law.) We independently review the legal adequacy of a jury instruction. (People v. Cole (2004) 33 Cal.4th 1158, 1210.) Here, we note CALCRIM No. 560 instructed the jury that Perla could not be guilty of provocative act murder unless the prosecution proved, among otherelements, that “defendant{e.g., Perla] intentionally did a provocative act"; that "defendant knew that the natural and probable consequences of the provocative act were dangerous to human life and then acted with conscious disregard for life"; that “in response to the defendant's provocative act," Canas killed Morales; and that Morales's death "was the natural and probable consequence of the defendant's provocative act." (Italics added.) Reviewing the instructions as a whole (see People v. Moore, supra, 44 Cal.App.4th at pp. 1330-133 1) we independently conclude thejury was properly instructed that Perla could not be guilty of provocative act murder unless the prosecution proved it was her acts, as opposed to those of Morales, that proximately caused his death. In other words, the instruction did not permit the jury to find Perla cuilty of provocative act murder based solely on the provocative acts of Morales, as she contends.- Our conclusion is further supported by counsel's argument to the jury. (See People y Guiton, supra,4 Cal.Ath at p. 1130.) Theprosecutor argued that Perla was guilty of murder because her act of pulling out the rifle and handingit to Morales was dangerous and causéd his death because Morales and Perla had "ambushed" Canas and 24 because Perla "introduced a rifle into the equation" in what had becomea life and death struggle between the two men. Defense counsel likewise arguedto the jury that it was to focus on Perla's conductor lack thereof-—-in finding her not guilty of Morales's murder. Indeed, the defense argued that it was the independentacts of Morales and/or Canas (e.g., an independent intervening cause) that led to Motales's death, and that Perla's act of taking out the rifle and handing it to Morales was insufficient to convict her of murder under the provocative act murder doctrine. Based onthe. instructional language given the jury and counsels’ closing atgument, we conclude that even if the trial court erred when itgave CALCRIM No. 560 and not CALCRIM No. 561, it is not reasonably probable that the jury misunderstood the applicable law and would have reached a result more favorable to Perla absent the error. (See People v. Kelly, supra, 1 Cal.4th at p. 525; People vy. Moore, supra, 44 Cal.App-4th at p. 1331.) | | C. Instructional Error—Premeditation and Deliberation® - In is instruction onprovocative act murder under CALCRIM No.560, thetrial court told the jury: "Tf you decide that the defendant is guilty ofmurder, you must decide whether the murder is first or second degree. [{]] To prove that the defendantis guilty of first degree murder, the People must prove that: [§] One, as a result of the defendant's provocative act, Fernando Morales was killed during the commission of attempted 9 Wenote the People have not raised forfeiture as an issue in connection with this claim of error. (See People v. Hart, supra, 20 Cal.4th at p. 622.) 25 willful, deliberate, and premeditated murder; and [{]] Two, defendant intended to commit © attempted willful, deliberate, and premeditated murder when she did the provocative act. [{\] In deciding whetherthe defendant intended to commit attempted willful, deliberate, and premeditated murder and whether the death occurred during the commission of attempted, willful, deliberate murder, you should refer to the mistructions I have given you on attempted willful, deliberate, andpremeditated murder." (Italics added.) Pursuant to CALCRIM No.601, the trial court also instructed the jury on the requirements for determining whether the attempted murder was premeditated and deliberate: "If you find the defendant guilty of attempted murder under Count1, you must then decide whether the People have proved the additional allegation that the attempted murder was done willfully and with deliberation andpremeditation. [9] The defendant Perla Gonzalez acted willfully if she intendedto kill when she acted. The defendant Perla Gonzalez deliberated if she carefully weighed the considerations for and against her choice and, knowing the consequences, decided to kill. The defendant Perla Gonzalez premeditated if she decided to kill before acting, [{| The attempted murder was done willfully and with deliberation and premeditation if either the defendant or Fernando Morales or both ofthem acted with that state ofmind.” Ctalics added.COTE 4 4 Perla contends the trial court committed prejudicial error by instructing the jury on the above italicized portion of CALCRIM No.601 because it permitted the jury to find her guilty of first degree murder without determining whether she personally acted deliberately and with premeditation. 26 Our Supreme Court recently addressed this exact issue involving a nearly identical _ Jury instruction in Concha I, supra, 47 Cal.4th at p. 666. There, the court resolved once and for all that a defendant could be guilty of murder in the first degree under a provocative act murder theory if the defendant personally acted with deliberation and premeditation during the attempted murder. (Id at p. 65 8.) In-Concha I thetrial court referred the jury tothe instruction on attempt,which appropriately allows a defendant to be held vicariouslyliable for the mensrea of an accomplice. (See id. at p. 665 ["[FJor . murder, a defendant cannot be held vicariously Hable for the mens rea of an accomplice" but the "game is not true for an attempted murder that is willful, deliberate, and premeditated" in which case a "defendant may be vicariously liable for the premeditated and deliberate component of the meansrea of an accomplice."]) “However, our Supreme Court in Concha I concludedthe trial court erred when instructing the jury on first degree murder, as opposedto attempted murder, "by not providing an instruction that explained that for a defendant to be found guilty offirst degree murder, {the defendant] personally has to have acted willfully, deliberately, and with premeditation when [the defendant] committed the attempted murder.” (Concha I, supra, 47 Cal.4th at p. 666:) The court thus remanded the matter to the court to determine whether the instructional error prejudiced defendants with respect to their first degree murder conviction, On remand, the court in People v. Concha (2010) i) Cal.App 4th 1072, 1075 (Concha ID, review denied June 9, 2010, held the instructional error harmless beyond a reasonable doubt because rational jury would have found based on the evidence that 27 each defendantdeliberated and premeditated the attempted murderof the victim, who in defending himself killed oneof the accomplices. Wenote the court in Concha II considered at length the proper test to be used on appeal where the jury has not been instructed on an elementofthe offense. Before _selecting theharmless error standard, the court thoroughly reviewed California and United States Supreme Court decisions involvinginstructional errors ofomission and misdescription of offenses. (Concha IT, supra, 182 Cal.App.4th at pp. 1085-1087.) In particular, the Concha i court examined the reasoning of the majority in Nederv. United States(1999) 527 U.S. 1, 15 fl 19 S.Ct. 1827], where the United States SupremeCourt noted the harmless error test strikes the appropriate balance between protecting the defendant, on the one hand, and maintaining public respect and confidence in the court system, on the other hand. Citing Justice Baxter's concurring opinion in People v. Cross (200 8) 45 Cal.4th 58, 71, the court in Concha II farther elaborated that the harmlesserror test does not — depend on proofthat the jury actually rested its verdict on the proper ground, but on proof beyond a reasonable doubtthat a rational jury would have found guilt even absent the error. (Concha II, supra, 182 CalApp.4th at p. 1087.) The test mayrequire a detailed examination of therecord and the evidence produced by the defendant. (Ibid.) When, for example, the defendant does not contest the omitted element and fails to raise sufficient evidence to support a contrary finding, the error should be deemed harmless. (Ibid.) 28 Like the court in Concha I, we recognize a minority view exists that concludes that where there is an omission or misdirection to the jury as to an element ofthe offense, using the harmless error test improperly allows the reviewing court to reweigh the evidence. However, that view isstill a minority view. (See Concha UL, supra, 182 Cal.App.4th at p. 1086, fn. 9.) We are bound to follow the clear direction of the | California Supreme Court and the United States Supreme Court. Finally, we note that while the jury in the case before us asked a question during deliberations about Perla's mental state, we conclude that fact alone does notalter: application of the harmless error standard. Weagree the question was an important one on the issue of whether further instruction was needed, The court's answer to the jury | question constitutes the instructional error. If we were to take a further step and conclude the jury question alone requires reversal of this issue, we would be applying a per se reversible error standard, which is contrary to substantial controlling authority. We are unwilling to take that step. . Briefly, in Concha I thevictim drove up to his business late at night, and parked his car in an alley. Beforehe got outof his car, the victim was met bytwo men who threatened him and attempted to rob him. Twoother men. stood watch nearby. Th Co victim briefly fought with his four attackers in the alley and then began running down a street, The four men followed the victim for a quarter of a mile. As the victim ran, he called out for help and tried to use his mobile phone. His attackers caught up with him as he tried to scale a fence, and began to stab the victim in the back. The victim remembered he had a small pocket knife, he pulled it out, faced his four attackers and 29 began to stab them out of fear for his own life. The victim again ran from his attackers to the front door of a nearby house, where he cried out for help and banged on the door. Eventually the occupants of thehouse opened the door, saw the victim bleeding profusely from multiple cuts and called the police. (Concha II, supra, 182 Cal_App.4th at pp. 1076- 1077.) | According to the defendants, because the parties and the jury were unaware of the personal willful, deliberate, and premeditation requirement as to the first degree murder count, the jury could not have made, and did not make, the requisite finding to support that conviction, nor could the court do so on remand. The court rejected this argument, and reasoned: "Defendants, however, misperceive the harmless error standard applicable to a case such as this one, in which the instructional error did not require the jury to make | a finding on an essential element of the offense—a willful, deliberate and premeditated killing. AS discussed above, based on the authorities, we do not have to determine if the verdicts reflect that thejury actually determined that both defendants deliberatedand premeditated the attempted murder. Rather, we may review the entire record to determine whether it is clear beyond a reasonable doubtthat a rationaljury would have | made the necessary findings ofpremeditation and deliberation absent the error." (Concha IT, supra, 182 Cal.App.4th at p. 1089, italics added.) Thecourt then reviewed the evidence in the record and concluded from it that a “rational jury would have found that each defendant deliberated and premeditated the attempted murder of [the victim]." (ConchaII.. supra, 182 Cal.App.4th at p. 1089.) Specifically, the court found that two defendants confronted the victim in the alley, 30 demanded money and twice threatened to kill him. After the victim resisted his four attackers, they fought with him in the alley, and then chased him for a quarter of a mile with beer bottles, which they used to beat and stab the victim. The court noted the assault against the victim wassufficiently severe that the victim received multiple stab wounds to his head and body, requiring 60 stitches to close. bid.) The court in ConchaIZ also noted that the jury returned guilty verdicts on the | attempted murder counts, which required the jury to find that each defendant intended to kill the victim, or shared in the other's intent to kill, and that the jury foundtrue each defendantpersonally committed a provocativeact during the attempted murder of the victim and oneofthe defendants personally used a deadly weapon—a beer bottle— - during the attempted murder. (Concha I, supra, 182 Cal.App.4th at p. 1090.) In response to the argument of defendants that the evidence at trial was controverted regarding their lack of premeditation anddeliberation, the court found the evidence submitted by defendants "dealt with their participation in the murder and their intent to kill, and the jury found against them on those points. [Defendants] did not contest the facts that go specifically to premeditation and dcliberation—the confrontation in the alley, the chase, the cornering of [the victim] and the repeated stab wounds with a _ deadly weapon. Premeditation and deliberation was submitted to thejuryon the . attempted murder counts; thus defendants had the opportunity to address those elements. ‘The facts supporting premeditation and deliberation are uncontradicted once the intent. element was established. Although the jury verdict is deficient in that there was not a finding of premeditation and deliberationas to each defendant, the jury did nevertheless 31 render a verdict offirst degree murder against both defendants. Based on the evidence, the jury verdict would have been thesameabsentthe error." (Concha II, supra, 182 Cal.App.4th at p. 1090.) We conclude Concha J and Concha I/ are instructive here,10 Like the trial court in ConchaI, the trial court here instructed thejury on premeditation and deliberation for first degree murder by referring the jury to the instruction on first degree attempted murdet, which as Concha I teaches, was error because unlike attempted murder, for murder a "defendant cannot be held vicariously liable for the mens rea of an accomplice."!1 (ConchaI, supra, 47 Cal.4th at p. 665.) Nonetheless, like the court in Concha IT, we conclude the trial court's instructional "error" was harmless beyond a ‘reasonable doubt because the evidence before us shows a rational jury would havefound Perla personally deliberated and premeditated the attempted murder of Canas. indeed, the evidence of Perla's premeditation and deliberationin the attempted murder of Canas is equally as strong, if not stronger, than the evidence of attempt against 10 That there were two defendants in Concha I and IJ, whereasthere is only one defendant here—-Perla, makes absolutely no difference in our analysis because just like - Moralesin the case at bar, one of the accomplices in Concha J and IJ also died (e.g., a murder occurred). If the court in Concha IT hadruled the jury could have found the dead accomplice alone premeditated and deliberated the attempt and ignored the conduct of the otherthree accomplices, the court there could not have reachedthe conclusion it did— that the jury instruction, while deficient, resulted in harmless error. | 1 We note that defense counsel participated in a myriad of discussions regarding jury instructions and never requested additional instruction on Perla's personal intent to ‘murder the victim. Nor did defense counsel argue the jury was required to make specific findings as to her intent to murder the victim. We understand of course that the state of the law during this trial would have led counsel to accept the trial court's version of the law, as instructed, inasmuch as Concha I was decided after the trial was concluded. 32 the defendants in Concha I and JI. In addition, we note such evidence against Perla was uncontroverted, in contrast to the evidence of her intent to kill, which the jury found in convicting her of first degree attempted murder, Perla has not challenged that finding on appeal.” The record contains uncontroverted evidence showing Perla personally premeditated and deliberated the attempted murder of Canas: Perla had been outside Curiel's housethe night before Morales was killed because of a dispute between Canas _ and her brother Ricardo; Perla planned the assault on Canas the following day; Perla called Curiel on the morningof the killing and learned that Canas intended to pick up his daughter at a predetermined location, Perla first drove Morales and Jorge to Curiel's house to make sure Canas's daughter wasstill athome and had not been picked up by _ Canas; Perla and her accomplices discussed how the assault against Canas would take place; Perla droveto the intersection where Canas was to pick up his daughter,parked the car and waitedfor Canas; Perla brought a loaded rifle to the assault, Perla stood about 10 feet away from where Canas and het boyfriend fought, by her car where her loaded rifle was located; Perla did not attempt to break up the fight between the two men; Perla grabbed her loadedrifle from the car after Canas successfully fought off Morales’s knife attack; Perla grabbed her rifle on her own accord; Perla cockedherrifle with her left hand and pointed it at Canas; and Perla next handed the rifle, which was ready to fire, to Morales, as Morales ran toward her afier the assaulthad turned deadly, Our dissenting colleague largely ignores most of this evidence in arguing that the “extent of Perla's participation in the attempted murder of Canas appears to have been 33 limited to her handing the firearm to Morales." (Conc. & dis. opn, p. 3, italics added.) We note, however,the issue is not merely Perla's participationin the attempted murder of Canas, but rather whether she personally premeditated and deliberated in connection _ | with that attempt. In any event, Perla clearly did more than merely handtherifle to Morales, as it was Perla's idea, among other things, to assault Canas in the first place; it was Perla 's ‘ifle: it was Perla's decision to bring the loadedrifle to the assault; and it was Perla's decision to pull out the rifle from her car, whenthe assault had turned deadly, cock it and hand it toMorales to use against Canas. | Unlike our dissenting colleague,we conclude such evidence amply proves the reflection in advance and weighing of considerations sufficient to establish beyond a reasonable doubt that a rational jury would have found Perla, as opposed to her - accomplice, personally premeditated and deliberated the attempted murder of Canas. (See ConchaII, supra, 182 Cal.App.4th at pp. 1075, 1090) Lastly, we also disagree with our dissenting colleague that the trial court "directed the jury to an instruction that grossly misstated the lawregarding a key distinction between first and second degree murder.” (Conc. & dis. opn., p. 4, italics added.) As we theys theyalready have noted the trial court here relied on CALCRIM Nos. 560 and 601 a then existed, before Concha I was decided by our Supreme Court. Although Concha I concludedthese instructions wereimproper as wediscussed ante, we do not agree it was a TOSS misstatement of the law, nor do we agree that this error took on additional _ Significance because the trial court repeated what was then a proper instructiona second 34 time during deliberations in response to ajury question. For these reasons, we conclude the instructional errorby the trial court was harmless. D. Instructional Error—Lawfiul Killingfor Provocative Act Murder\2 | Perla next contends the jury should have been told the provocative act theory of murder couldnot properly apply if Canas used lethal force solely to prevent an escape, rather than in responseto aprovocative act. Because this principle exonerates, the argumentruns,it therefore constitutes a defense, andeither thetrial court had a sua sponte duty to give an appropriate instruction delineatingit for the jury, or defense counsel rendered Perla ineffective assistance for failing to request such an instruction.- Thetrial court's instruction to the jury includedthe following paragraph from ~ CALCRIM No. 560: "A defendant is not guilty of the murder of Fernando Morales—or I am sorry—if the killing of Fernando Morales was caused solely by the independent criminal act of someone else. An independent criminal act is a free, deliberate, and informed criminal act by a person whois not acting with the defendant." ‘During closing argument, counsel reinforced the need for the jury to evaluate "self-defense" in assessing whether Canas's killing of Morales was criminal and, thus, an independent act undermining the provocative act murder doctrine. The prosecutor argued . that Canas had the right to defend himself in light of the deadly attack by Morales. Defense counsel, however, contended that Canas had no right to shoot Morales in the back as he was running awayand evencontendedthat one shot ‘was fired while 12 See footnote 9, post. 35 Moraleswas lying on the ground. Defense counsel also contended that Canas's shooting of Morales was not self-defense and, becauseit wasnot, "[t]hat's an independentact." As such, defense counsel contended, "[t]hat [independentact] is something that gets in between, and you cannot then justify putting Fernando Morales's{s|... death on [Perla]." -In reply, the prosecutor argued that for Canasto be acting in self-defense, there was no requirementthat he only fire one shot or shoot at a particular area of the body.. The prosecutor also told the jury that Canas had theright to defendhimself andthat Canas was not an intervening criminal act because he committed no crime by defending himself. | | ‘We have found no case to support Perla's argumentthat the trial court erred when it failed to give sua sponte an instruction on self-defense as it pertains to the victim Canas - and whetherhe was legally justified in shooting Morales as Morales ran away.!3 Thisis because the issue of whether the killing was lawfully justified is rooted in principles of | proximate cause, and notself-defense. (See ConchaI, supra, 47 Cal.4th at pp. 660-661: People v. Cervantes, supra, 26 Cal.4that p. 866.) | Indeed, our Supreme Court in Concha I recently confirmed that principles of proximate cause govern in determining whether a killing is attributable to the (provocative) act of defendant: "rTThe defendantis liable only for those unlawful killings proximately caused by the acts of the defendant or his accomplice. [Citation.} ‘In all homicide cases in which the conduct of an 13 Perla cites People v. Keys (1944) 62 Cal.App.2d 903, 916, as her only support the trial court erred whenit failed to give the self-defense instruction. However, Peoplev. Keys has absolutely nothing to do with provocativeact murder, and thusis inapposite here. 36 intermediary is the actual cause of death, the defendant's liability will depend on whether it can be demonstrated that his own conductproximately caused the victim's death...’ [Citation.] ‘[I]f the eventual victim's death is notthe natural and probable consequence of a defendant's act, then liabiltty cannotattach. {Citation.] " (People v. Concha, supra, 47 Cal.4th at p. 661.) Thus,thetrial court here did not err whenit failed sua sponte to instruct on self- defense as it pertained to Canas and whether he waslegally justified in shooting Morales _ just seconds after Canas, who himself wasshot three times, wrestled the rifle away from Morales. Defense counsel also did not renderineffective assistance by neglecting to ask for such an instruction, and instead properlyfocused his argument on proximatecause in arguing that Canas was anindependent intervening cause, absolving Perla ofliability for the murder of Morales, whichthe jury rejected. 14 E. Instructional Error—Failing to Instruct on Involuntary Manslaughter Finally, Perla contends the trial court erred when it failed to instruct the jury on involuntary manslaughter as a lesser included offense of murder. Defense counsel requested the jury be instructed on "all lesser-included offenses to both Counts 1 and 2,"" including involuntary manslaughter based on Perla's act of brandishing the eun, (See generally § 417.) - 14 However, assuming arguendothetrial Court erred whenit failed to instruct the jury - that Canas had to be acting in lawful self-defense when he fired the rifle in the direction of, or at, Morales after he wrestled it away from Morales, we concludethat error was harmless because it was not"reasonably probable" Perla would have obtained a more favorable outcome had the allegedinstructional error not occurred. (See People v. Breverman (1998) 19 Cal-4th 142, 178.) 37 The trial court refused to instruct on involuntary manslaughter, ruling: "Hereis the problem 1 have [with involuntary manslaughter]. J think I said it before. I don't know how you get around this. ... [T]he problem is with provocative act murder, provocative act provides if it's proven that she intentionally——I think all the evidenceis shetook the gun out... am assuming that that evidenceis correct; maybeit isn't. But if the evidence-—most of the evidence in this case has suggested that Ms. Gonzalez took the gun out of the car and at some point handed it to Fernando Morales. [4] Provocative act gives—as long as that's intentional—and I don't see any evidenceit wasn't, gettingthe gun out and giving it to him in thatsituation... . [| The argumenton voluntary [manslaughter] is that self-defense—or imperfect self-defense or heat of passion might negate the intent and thereforeit would mean that it wasn't an intentional provocative act. But here I can't see how it wasn't intentional." It is axiomatic that a" ‘trial court must instruct on a lesser offense necessarily included in the charged offenseif there is substantial evidence the defendantis guilty only of the lesser.’ [Citation.]" (People v. Lacefield (2007) 157 Cal-App.4th 249, 256; see also People v. Moye (2009) 47 Cal.4th 537, 548.) "Onthe other hand, the court is not obliged to instruct on theories that have no such evidentiary support.... [M].... ‘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.]" (People v. Breverman, supra, 19 Cal4th at p. 162.) Although involuntary manslaughter includes a killing that “occurs during the ‘commission of a" 'noninherentlydangerous felony,'" " 'the killing must be 38 unintentional “and without malice. (People v. Dixon (1995) 32 Cal.App.4th 1547, 1556.) Where the evidence unmistakably shows an intentional killing, no instruction on involuntary manslaughter is required, Ud. at pp. 1556-1557 [no involuntaty manslaughter instruction required when the defendantfired five or sixshots at victim, twice hitting the victim in the back]; People v. Hendricks (1988) 44 Cal.3d 635, 643 [no involuntary manslaughterinstruction required when,although the defendant denied intent to kill, he shot victimssix times andfive times respectively at point-blank range] .) Here, the evidence shows Perla grabbedtherifle, cocked it and handedit to | Morales after Morales hadpulled a knife on, and cut, Canas, during a fight instigated by Morales and Perla, his accomplice, that had turned deadly. Based on such evidence, the jury determined Perla intentionally did a provocative act, she knew that the natural and . _ probable consequences ofthe provocative act were dangerous to human life and then acted with conscious disregard for life. On this record, we conclude the trial court did not err in refusing to instruct on involuntary manslaughter, DISPOSITION The judgment of convictionis affirmed. BENKE,Acting P. J. I CONCUR: \ ha TRION, J. 39 Aaron, J., concurring and dissenting: I concur with the majority opinion, with the exception of section C (maj. opn., p. 25), because I disagree with the majority's conclusion that this court may deem thetrial court's instructional error on the intent element of provocative act murder harmless beyond a reasonabledoubt. The majority concludesthat the trial court erred in instructing the jury with respect to premeditation and deliberation in relation to the charge of provocative act murder, but further concludes that the error was harmless beyond a reasonable doubt because, in its view, the evidence before us shows a rational jury would have found Perla personally | . deliberated and-premeditated the attempted murder of Canas." (Maj. opn., p.32.) | During deliberations, the jury in this case sent a noteto the trial court requesting an instruction on second degree murder. The jury note reads, "Is #39 for second degree murder?! Weneed an explanation of 2nd degree murder." In response, the court replied, "No," and referred the jury to CALCRIM 560, which in turn, referred the jury to the . | instruction on attempted murder. That instruction informed the jury that it could find that Perla acted with premeditation and deliberation "if either [Perla] or Fernando Morales or both of them acted with that state of mind." (Italics added.) This was a significant misstatement of law because,in fact, in order to find Perla guilty of first degree | provocative act murder, the jury was required to find that she personally acted with premeditation and deliberation. (See People v. Concha (2009) 47 Cal.4th 653, 665 I Instruction 39 was CALCRIM 570, "Voluntary Manslaughter: Heat of Passion — Lesser Included Offense.” (Concha TD ["[A] defendant charged with murder or attempted murder can be held vicariously liable for the actus reus of an accomplice, but, for murder, a defendant cannot be held vicariously liable for the mensrea of an accomplice", citing People v. McCoy (2001) 25 Cal4th L111, 1118.) In People v. Concha (2010) 182 Cal.App.4th 1072 (Concha IN),-on which the majority heavily relies, the Court of Appeal concluded that the error in failing to instruct the jury that it must findthat the defendant personally acted willfully, deliberately, and with premeditation in order to find a defendant guilty of first degree murder, was harmless because "[t}he evidence was suchthat beyond a reasonable doubt a rational jury would have found that each defendant deliberatedand premeditated _. 2! Gd. at p. 1089.) The Concha I court reached this conclusion on the ground that there was no basis to distinguish betweenthe conduct of the four defendants, since, as the court noted, it was undisputed that all four defendants "chased [the victim] for a quarter mile with deadly weapons, and participated in one fashion or anotherin the repeated and brutal » stabbing and beating of [the victim] after cometing him... ." Ud at p. 1090.) Here, in | contrast, there is a significant distinctionbetween the conduct of Perla and that of her accomplice, Morales. While the jury found that Perla used afirearm, under Penal Code section 12022.53, subdivision (b), it also found thatshe did not intentionally discharge a | firearm during the commission of the attempted murder, under Penal Code section 12022.53, subdivision (c). Basedon thesefindings, one can reasonably infer that the jury concluded that Perla handed the gun to Morales, but also concluded that she did not shoot Canas.2 The majority's contention that “the evidence of Perla's premeditation and ‘deliberation in the attempted murder of Canas is equally as strong, if not stronger than the evidence of attempt against the defendants in Concha I and IT" (maj . opn., pp. 32-33), is simply not supported by the evidence. In Concha,it wasclearthat all of thedefendants actively participated in the beating and stabbingofthe victim: in this case, in contrast, the extent of Perla's participation in the attempted murder of Canas appears to have been limited to her handing the firearm to Morales. Given that Morales fired at Canas roultiple times, there was no real question that Morales premeditated and deliberated the shooting. Because Morales shot Canas and Perla did not, in this case, unlike in Concha II, there was clearly a factual basis upon which a rational jury could have found that Morales premeditated and deliberated the shooting, but that Perla did not. There is thus a rea} - possibility that the instructional error in this case led the jury to find that Perla | premeditated and deliberated based not on a finding that she personally premeditated and deliberated, but rather, on a finding that Morales did. Anothercritical factor that distinguishes the error in this case from the error in Conchais the context in which the instructionalerror occurred. After having heard all of 2 The majority speculates that because the jury found that Perla used a weapon, under Penal Code section 12022.53, subdivision (b), "it is possible the jury concluded Perla fired the weapon, but not intentionally." (Maj. opn., p. 7, fn. 4.) Itis far more likely that the jury's finding that Perla used a weapon is based on the undisputed fact that she took the firearm out of her car and handedit to Morales. . 3 the evidence, arguments, and jury instructions, and having deliberated for some period of time, the jury in this case specifically requested an instruction on second degree murder. In response, the court directed the jury to an instruction that erossly misstated the law regarding a key distinction between first and second degree murder. Thus, the error in this case was not, as the majority suggests, simply failing to instruct on an elementofthe offense or providing the jurywith an erroneous instruction on the mental state required to . | find the defendantguilty, but rather,providing that erroneous instruction to a deliberating jury that had asked for guidance on this specific issue. The majority inexplicably fails to address the impact of thetrial court's erroneous responseto the jury's pointed question in its harmless error analysis, other than to state,-"If we were to... conclude the jury question alone requires reversal ofthis case, we wouldbe applyinga perse reversible error standard, which is contrary to substantial controlling authority."3 (Maj, opn., p. 29.) Instead, in assessing whether the instructional error was harmless beyond a - reasonable doubt, the majority limits its inquiry to the abstract question of whether a hypothetical "rational jury" would have foundthat Perla premeditated and deliberated. 3 In making this assertion, the majority constructsa classic straw man argument. I am not suggesting that "the jury instruction alone" requires reversal, nor that a trial court's providing an erroneousinstruction to a deliberating jury would,in every instance, require reversal. Rather, I have concluded that the instructional error requires reversal in this case, because (1) the jury specifically requested that thetrial court provide an instruction on second degree murder; (2) in response, the court provided the jury with an -incorrect instruction; and (3) underthefacts of this case,.the error in the instruction may have led the jury to find Perla guilty of first degree murder based on finding that Morales premeditated and deliberated, and not on a finding that Perla personally premeditated and deliberated, However, in assessing the impact of the error, one cannot ignore the fact that the actual jury specifically requested an instruction on second degree murder andthat in response, | the court directed the jury to an instruction that misstated thecritical intent element. | Thiscourt has recognized that, "there is no category of instructional error more | prejudicial than when the trial judge makes a mistake in responding to a jury's inquiry during deliberations." (People v. Thompkins (1987) 195 Cal.App.3d 244, 252-253,) - Duringits deliberations, the jury in this case sent the court a note requesting a specific instruction, and in response, the court providedan instruction that waslegally incorrect. In view ofthe circumstancesin this case, the jury's request for an instruction on second degree murderwas clearly a rational one. The fact that in response,thetrial court directed the jury to an instruction that was incorrect as to a critical distinction between first degree murder and second degree murder, i.e., premeditation and deliberation, and that effectively invitedthe jury to find Perla guilty of first degree murderif it found that | Morales premeditated and deliberated, precludes a determination thatthe instructional error was harmless beyond a reasonable doubt.’ Lum AARON,J.