PEOPLE v. GONZALEZRespondent's Answer Brief on the MeritsCal.August 12, 2011In the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff and Respondent, Vv. PERLA ISABEL GONZALEZ, Defendant andAppellant. Case No. S189856 SUPREME COURT FILE 0. AUG 1 2 2011 Fourth Appellate District, Division One, Case No. D055698 Frederick K. Ohlrich Clerk Deputy _ San Bernardino County Superior Court, Case No. FVA024527 The Honorable Michael A. Knish, Commissioner 2 RESPONDENT’S ANSWERING BRIEF ON THE MERITS KAMALAD. HARRIS . Attorney General of California DANE R.GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General _ STEVENT. OETTING _Supervising Deputy Attorney General WILLIAM M. Woop Supervising Deputy Attorney General State Bar No. 73219 110 West A Street, Suite 1100 San Diego, CA 92101 P.O. Box 85266 _ San Diego,CA 92186-5266 Telephone: (619) 645-2202 ‘Fax: (619) 645-2191 Email: William.Wood@doj.ca.gov Attorneysfor Plaintiffand Respondent TABLE OF CONTENTS Page Issues for ROVICW ........cecccsscesssessssssesesseesseeseeceesssesseseeecsaeeseeeaeses sesetetaeeeenseeees I Introduction... eececseceesecesnessecsscesecssecseessesseesseeseesseecsseeaeeseesscessssaseseesvease 1 Statement of the Case...eeessscsssssssesssssessesseseesssesseesseesaceeessesecssessesessees 2 Statement Of Facts 0... eecssscsccssesssssesssssesseeseesessssseessessecssensenecseeceneaeeessens 3 A. Defense 0... eee ceeceeesecssessesseesseesscenscesseceecseecssueeseseecsnes 8 B. Rebuttal oo.cecsccscssessecesecsssessesssesseessesseeseeeseeeeeeees 9 ATQUMENL.....cccesesseseseseseseseceacsescecscsesseseseseseecesssescscscsesescseassssssessnessessssessusans 9 I. Substantial evidence supports appellant’s murder conviction underthe provocative act doctrine..............:cee 9 I. Theinstructionalerror on first degree murder was harmless beyond a reasonable doubt wherethe jury wasrequired to, and did find premeditation and deliberation, and the evidence was overwhelming and uncontested that appellant premeditated and Geliberatedoececceessseeeceecseeesecesecseneseesssesneesseeessseseeees 19 COMCIUSION 00... ee eeeseeeseeeseessseceeesseeessceecseeesssseseseseseesecessesseesssensesatenseeseeees 28 TABLE OF AUTHORITIES Page CASES Chapmanv. California (1967) 386 US. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]........wee 19, 22, 23 "Gilbert v. California | (1967) 388 U.S. 263 [87 S.Ct. 1951, 18 L.Ed.2d 1178]... 11 Neder v. United States (1999) 527 U.S. 1 [119 S.Ct. 1827, 114 L.Ed.2d 35]... 22, 23 People v. Antick (1975) 15 Cal.3d 79occecssstssssssesesseessseceseesessescsscsecsesessvsssasseeaees 14 People v. Caldwell (1984) 36 Cal.3d 210.ceeeesecsessesseesssesesssescsessesesenssecsesees 14, 15 People v. Cervantes (2001) 26 Cal.4th 860.000... ceesccssessessesscssceesscsssescssssssscesseasens passim People v. Concha (2009) 47 Cal.4th 653eccessesessesssssssessesesesssssesessesesseseseeses 10, 21 People v. Concha (2010) 182 CalApp.4th 1072.0... esessssssssesscsseseesscssessessssnssesees 21, 24 People v. Gilbert (1965) 63 Cal.2d 690oeeecessssscssessesecseeseseseeseseesessseecseseesssecs 11, 16 People v. Guiton (1993) 4 Cal.4th 1161...essessssscsesssesessssesesssssensessessseesssererseees 26 People v. Lima (2004) 118 Cal.App.4th 259 oo... ccccccssssssessecssesscscsesssscsssessecessessees 17 People v. McCoy (2001) 25 Cal.4th LL 1icesceessecsssseseseeseeseseseesscssscsssusscssesseees 14 People v. Roberts (1992) 2 Cal.4th 271oececcsessssesseseescsscessessenssseseseass 12, 13, 17, 19 il TABLE OF AUTHORITIES (continued) People v. Washington (1965) 62 Cal.2d 777 ...cccccscccssssssessserscssecsstessessetessessescsscssssseeears 10, 11 STATUTES _ Penal Code § 187oeceescseesceesensecseeseesecseessusesssssecsaeesecersecucusessescsessssssseserenseess 2 § 189cccectecssereesteeseeeessssesensusesessseseeaesesscacaesesececsuseesssscseaseacavaceees 21 § O64oscesecseectsnesseenecstecssesseesssesseesesesssenscesecnsesseessessrscsesssssensoras 2 § 12022.53, subds. (Db), (C)....cccessesssssecssccssesreessesssssceecssesscesesssaseas 2,3 OTHER AUTHORITIES CALCRIM NO. 401 woeceescsecesseeseesecseessesecssesssssesseessesseseeessssecsasessesrscsssersensense 18 NO. 560 oo. eceesceeseeessecscssseesssssesceesessesessssesesseesseseeesssessaeceesseuss 19, 27 NO. 601 ooeecssecesececsesseeseesseseeseeessesecsesssessessnessessesseecsevsceesceees 20, 21 CALJIC NO. 3.40 .ocecccccsscsceseeesesenees vcestenseseseeuesessacsecssssaeesesaessecensesenecestsetecease 10 ili ISSUES FOR REVIEW In granting review, this Court specified the following issues: (1) Was the evidencesufficient to convict defendantoffirst degree murder? (2) Wasthe instructionalerror in failing to tell jurors that defendant had to personally premeditate an attempted murderin orderto be guilty offirst degree provocative act murder harmless beyond a reasonable doubt? INTRODUCTION Angryoverthe treatment herbrother received ftom Roberto Canas- Fuentes (Canas), appellant recruited her boyfriend, Fernando Morales, to join her in ambushing Canas. Appellant drove them to the ambushsite with a loadedrifle in her car. Morales began the ambush by assaulting Canas with fists, but Canas fought back. Morales escalated his attack by pulling a knife and cutting Canas on the cheek, but Canas upended Morales and disarmed him. Appellant, who had watchedthe contest, retrievedthe rifle from her car and cocked it. When Moralesran to her, she gavetherifle to him. Seeing appellant’s actions and fearing for his life, Canas ran to Morales, tooktherifle from Morales and shot him,resulting in his death. Appellant seeks to immunize herself from provocative actliability by claiming she was only an aider and abettor to Morales’s intended deadly assault. Consistent with the usual rules governing proximate cause for provocative actliability, this Court should reject the effort to limit the proximate cause assessment by imposing appellant’s artificial boundary. Asthe jury found, appellant intentionally acted to assist Moralesin his effort to kill Canas and heracts directly, naturally and probably resulted in Morales’s death. Appellant similarly seeksto restrict the scope of harmless error review for an instruction that potentially relieved the jury ofits duty to find personal premeditation and deliberation forfirst degree murder by expanding the basis for finding a contested issue. This Court should reject appellant’s effort by recognizingthat the instructionalerror involving premeditation and deliberation for first degree murderis not “contested” when a defendant only asserts lack of intentto kill, the jury finds against appellant on that issue, and the evidence ofpremeditation and deliberation is overwhelming and unchallenged. STATEMENT OF THE CASE __ The District Attorney of San Bernardino County filed an amended information on April 10, 2007, charging appellant with attempted premeditated and deliberate murder (Pen. Code, §§ 664, 187; count 1) and murder (Pen. Code, § 187; count 2). It was alleged that appellant personally used, and personally and intentionally discharged, a firearm in the commission of the attempted murder (Pen. Code, § 12022.53, subds. (b), (c)). (1 CT 224-226.) Appellant pleaded not guilty. (1 CT 251.) A jury trial began on May8, 2007. (1 CT 272.) On June 13, 2007, the jury found appellant guilty of attempted premeditated and deliberate murderandfirst degree murder. The jury found the personaluseallegation true. (2 CT 407-412.) On February 25, 2009,the trial court sentenced appellantto state prison for 25 years to life on the murder conviction. The court imposed a concurrentlife term, enhanced with the upper term of 10 years for the firearm use finding, for the attempted murder conviction. (2 CT 444-447.) On December9, 2010, the Court of Appeal, Fourth Appellate District, Division One,filed its then-published opinion, affirming the judgment. The court concluded,inter alia, that appellant’s first degree murder conviction under the provocative act doctrine was supported by substantial evidence. (People v. Perla Isabel Gonzalez, D055698,slip opn.at pp. 11- 17.) The court also concludedthat thetrial court erred in instructing the jury on the requirements for premeditated and deliberate first degree murder. (/d., slip opn. at pp. 25-32.) The majority concluded the error was harmless beyond a reasonable doubt. (/d., slip opn. at pp. 32-35.) The concurring and dissenting justice concluded the instructional error was not harmless. (/d., concurring and dissenting opn.at pp. 1-5.) This Court granted review on those two issues on March 23, 2011. STATEMENT OF FACTS Roberto Canas-Fuentes (Canas) and his wife, Joan Curiel, werestill married in May 2005, but were no longer living together. (2 RT 222-223.) After separating, Curiel began seeing Ricardo Gonzalez (Ricardo)' andthey ultimately began living together, along with Curiel and Canas’s child, Jolie Canas, Curiel’s other children, and Curiel’s mother, Rosalba Osguera- Alvarez (Osguera) at 355 South Forest Avenue in Rialto. (2 RT 223; 3 RT 405; 4 RT 704-706; 5 RT 910-912; 6 RT 1056-1057.) Canasand Curiel shared custody of their.daughter, Jolie, but because Canas and Ricardo did not get along, Canas would not pick his daughter up at Curiel’s residence. Instead, he would arrange for his daughter to be brought to another location, usually by Osguera, Curiel’s mother. (2 RT 223, 225; 5 RT 954.) Canas and Ricardo had argued several times on the telephone and hadgotten physical on at least one occasion. Each blamed the other. (2 RT 234-235; 3 RT 350-353, 396-398, 403, 493; 4 RT 693; 5 RT 1011, 1017; 6 RT 1095, 1103.) On the evening of May 21, 2005, Curiel called Canasto see about getting her mother to the hospital where Canas worked, and she dropped her motheroffat the hospital. (2 RT 237-238; 6 RT 1058.) After being treated, Osguera waspicked up and taken home. (2 RT 238-239.) That same evening Ricardo and Curiel argued. Ricardo suspectedCuriel had ' Becauseofthe involvementof appellant’s brothers, Ricardo Gonzalez and Jorge Gonzalez, we refer to them bytheir first names. seen Canas when Ricardo had goneon a trip to Mexico. (5 RT 914.) During the argument, Canas called and spoke to Curiel. Because he was jealous, Ricardo told Curielto get off the phone. (5 RT 919.) Canas understood Curiel to say she did not want Ricardo in her home and hecould hear the children screaming in the background,so he droveto theresidence. (3 RT 391.) | WhenCanasarrived, Curiel was leaving thehouse with herchildren. Ricardo wasat the door and Canas beganyelling at Ricardo to come out and fight. (2 RT 239; 3 RT 393; 5RT 926; 6 RT 1060-1062.) As Curiel drove offwith her children in her car, Ricardo got in his car and followed, and Canas got back in his car and followed Ricardo. (3 RT 394, 464-467; 4 RT 695; 5 RT 928-929; 6 RT 1063.) Fearing that Ricardo was chasing Curiel and endangering the children, Canas pulled up to Ricardo, yelled at him, then cut him off. (3 RT 394-395; 5 RT 929; 6 RT 1066.) Canas continued to follow Ricardo, whocalled the police, called his mother, and drove back to the residence.? (3 RT 395.) Thepolice arrived and told Canasto leave, and he returned to work. (2 RT 240-241.) During the chase, Ricardo called his mother, Beatrice Gonzalez. She, in turn, called Ricardo’s brother, Jorge Gonzalez (Jorge) and told him about the chase. (3 RT 510.) Jorge was out with a female friend, and they went to the residence. (3 RT 505-506; 4 RT 635; 5 RT 938.) Soonafter, appellant (Ricardo and Jorge’s sister) arrived with Fernando Morales. (3 ~ -RT 506; 5 RT 935.) Appellant and Morales were living togetherat the ? Oneof the previous run-ins between the menarose because, during an argument between Ricardo and Curiel, Curiel tried to strike Ricardo and whenhe blocked her, he also accidentally struck Josie, Canas’s daughter. (2 RT 351; 5 RT 1009.) . * Canasalso called the police while following Ricardo back to the residence. (3 RT 240; 4 RT 695-696.) time. (3 RT 505; 5 RT 936.) Beatrice Gonzalezalso arrived. (3 RT 509.) Ricardo told his family what had occurred with Canas. (3 RT 508; 4 RT 576; 5 RT 944, 1026.) Jorge had heard ofprior problemsbetween Canas and Ricardo, andtold appellant that Canas was messing with their brother again. (4 RT 637.) Appellant became upset and argued with Curiel. Appellant told Curiel that if anything happened to Ricardo,“they were going to kick his [Canas’s] ass.” (5 RT 945, 1027; 6 RT 1067-1068.) While the family wasstill at the home, Canascalled. Ricardo answered onecall and argued with Canas, then hung up. (4 RT 578.) Jorge answered another call. They argued and Canas said he would meet Jorgeat the cornerto fight. (4 RT 578, 639; 5 RT 1029.) Jorge went to the corner of Linden and Wilson with his female companion,appellant and Morales, and waited for Canas, but Canas did not show. (4 RT 578, 580, 592.) Morales had a BB rifle with him. Hefired it into the road and smiled while they waited. (4 RT 582, 595.) They returnedto the residence and everyone left at the same time. (4 RT 597-598; 5 RT 946.) At somepoint that same evening, Canas spoke to Curiel and arranged to pick up his daughter the next morning. (2 RT 241; 6 RT 1070.) The next morning,appellant arrived at Jorge’s residence. (4 RT 598- 599.) Appellant said she had been told by Curiel that Canas was goingto be picking up his daughter, and she wantedJorge to accompany her to confront and assault Canas. (4 RT 600, 603.) Jorge agreed and got in appellant’s vehicle, carrying a bathe intendedto use to break out the windowsofCanas’s car. (4 RT 601.) When Jorge got in appellant’s vehicle he saw rifle in the back. (4 RT 608, 615.) Appellant then drove to her residence and picked up Morales. (4 RT 601.) They told Morales what was planned and Moralesagreedto assist Jorge if Canas got the upper hand. (4 RT 607-608.) Appellant then drove to the Curiel-Ricardo residenceto see if Canas’s daughterwasstill there. (4 RT 610.) Jorge went inside the residence and saw that Jolie was there. (4 RT 611; 5 RT 951.) He got back in appellant’s vehicle and she drove around the corner of Linden and Wilson, and parked on Linden. (4 RT 612, 614.) After waiting for a time, they decided to leave, but appellant’s car would notstart. They got out and opened the hood. Jorge started back to the residence on foot to get assistance. (4 RT 617-618.) AsJorge, appellant, and Moralesleft the residence, Osguera began walking Jolie to the corner to meet Canas. Raydeen Curiel, Curiel’s daughter followed them. (3 RT 409, 414; 4 RT 711-712; 5 RT 828.) As they reached the corner, Osguera and Raydeen saw Jorge walking back toward their residence. (3 RT 415-416; 4 RT 618, 714-715.) They also saw appellant and Morales standing by the vehicle with its hood up. (3 RT 417.) Appellant approached Osguera and told her to leave. (4 RT 417.) Canas wasdriving up Linden, on his wayto pick up his daughter, when he saw Osguera, Raydeen, and Jolie. He also saw appellant and Morales standing by a carwith its hood up. (2 RT 242-247.)* Canas stoppedin the street and beckoned to Osguera, who approached and urged him to leave. (2 RT 250; 3 RT 424-425.) Morales also approachedand, as Canasgot out of his car, Morales said, “ “Hey, puto, I heard you had a problem.’ ”” (2 RT 253;4 RT 718.) | Appellant wasstill standing near her vehicle. (2 RT 253.) As Osguera took Jolie around to put her in the passenger side of Canas’s vehicle, Morales - swung fist at Canas. (2 RT 254-255; 4 RT 720.) Canas directed Osguera to get in the driver’s seat of his car and leave, which she did. (2 RT 255; 3 RT 428-429.) Canas fought back. Morales pulled a knife with a 3-4” | blade, and thrust it at Canas, cutting Canas in the cheek. (2 RT 255-261;3 | “ Canas had not met appellant or Morales and did not know whothey wereat the time. (2 RT 249.) . RT 429-431.) During the fight, Canas could see appellant pacing back and forth by her vehicle, watching the fight. (2 RT 257.) Canas got hold of Morales’s legs and threw Morales to the ground. (2 RT 262.) Morales got up and ran to appellant, who hadtaken therifle out of her car and cockedit. (2 RT 263, 267-268; 3 RT 447.) Appellant pointed the rifle at Canas, then she gave it to Morales. (4 RT 720-721, 723.) Canas ran up to Morales and grabbedtherifle, and the two men struggled for control. (2 RT 272.) Therifle fired during the struggle and Canas wasstruck three times. (2 RT 273.)° Nevertheless, Canas was able to flip Morales and gain controlofthe rifle, which hefired at Moralesas Morales began to run up the street. (2 RT 273, 275.) Morales fell at the edge of the sidewalk after being shot. (2 RT 275, 329.) Appellant had also run up the sidewalk and turned on Wilson toward the Curiel residence. (2 RT 274, 330-331.) Canas checked Morales’s pulse, then saw Curiel drive around the corner and stop. (2 RT 276-277.)° When Curiel yelled at Canas, who was sitting on the sidewalk and bleeding, Canassaid “ ‘He shot meso I shot him back.’ ” (6 RT 1079, 1083.) Curiel drove back to her residence, picked up Jorge and appellant, then returned to the scene where Jorge and appellant put Morales in Curiel’s car and theyleft for the hospital. (2 RT 280-285; 6 RT 1084-1088.) Morales had three gunshot woundsthat caused his death: one bullet entered his right chest and lodged in the chest cavity; one bullet entered his right back side and exited his stomach; and one bullet entered to the right of ° Canas was woundedinhisrightbicep,his left thigh, and his left hand. (2 RT 286-289.) Curiel had driven to the scene after hearing her son say Canas had been shot. (6 RT 1075.) his back midline, severed the spinal cord and lodgedin the vertebrae. (3 RT 543-555, 557.)’ Whenpolice arrived at the scene, they obtainedtherifle from Canas, a .22 semi-automatic with a magazine capacity of 14. (5 RT 961-966;.6 RT 1148, 1152.) Police recovered six expended .22 long-rifle shell casings and a knife on the street. (4 RT 764, 769-775.) A bullet strike was located in the building on the east side of the street. (4 RT 757, 781.) The bullet strike was consistent with being fired from west to east. (4 RT 793.)® A roll of red duct tape wasin the center console of appellant’s vehicle and two pieces of red duct tape, consistent with having comefrom the roll, were taped in an “X” pattern on the rear license plate, obscuring the license plate number. (4 RT 789; 5 RT 980, 982, 985-986, 989; 6 RT 1165, 1196, 1201.) A. Defense Beatrice Gonzalez, the mother of Ricardo, Jorge, and appellant, testified that she called both Jorge and appellant after being calledby Ricardo and learning of the car chase. (7 RT 1295-1297, 1310.) She went to Ricardo’s residence and saw Ricardo, Curiel, appellant, Morales, and Jorge. (7 RT 1297-1298.) Ricardo described a prior incident between him and Canas. Appellant was upset and said that if Canas hit Ricardo again, they would beat up Canas. (7 RT 1299-1300.) | ” Morales also had several superficial blunt force injuries to his shoulder, elbow, and knees. (4 RT 542.) - 8 Lindenis a north-south street. Appellant’s car was parked at the west curb, and Canas stoppedhis car in the middle ofthe street. (See Exh. 97.) . * Appellant’s vehicle did not have a frontlicense plate. (6 RT 1160.) Marlen Morales, the sister of Fernando Morales, testified she went to the shooting scene sometime between four and eight days after the shooting and discovered a knife, which she kicked into the grass. (7 RT 1435-1442.) - B. Rebuttal | Canastestified he did not have a knife the day of the shooting and the only knife he saw was the knife Morales pulled. (8 RT 1522-1523.) David Johnson, a crime scene specialist with the San Bernardino Sheriff's Department, whoidentified, photographed and collected evidenceat the scene (4 RT 745-793), testified that there was not a second knife at the scene. & RT 1528-1531.) Jorge Gonzalez testified that approximately a week-and-a-half to two weeks before the shooting, Fernando Morales showedJorge a rifle and appellant showed Jorge a bullet for therifle. (8 RT 1562, 1565.) Appellant told Jorge that Fernando had been offered the rifle and they purchasedit for $200. (8 RT 1566.) ARGUMENT I. SUBSTANTIAL EVIDENCE SUPPORTS APPELLANT’S MURDER CONVICTION UNDER THE PROVOCATIVE ACT DOCTRINE Relying on cases in which provocative act murderliability has been found where a defendant committed lethal acts, appellant contends the evidenceis insufficient in her case because (1) Morales committed the lethal act that caused his death andsheis not liable when he cannot be; and (2) she was simply an aider and abettor who performednolethalact. However, appellant is attempting to draw toorestrictive a boundary around the provocative act doctrine. The doctrine arose as a form of implied malice murder and nothingin its development or requirements preventsit application where, as here, appellant’s acts, even as an aider and abettor, directly, naturally and probably resulted in Morales death. “Murderincludes both actus reus and mensrea elements.” (Peoplev. Concha (2009) 47 Cal.4th 653, 660.) To satisfy the mens rea element, the evidence mustprove the defendant acted with malice aforethought. To satisfy the actus reus element, the evidence must prove that an act of the defendant or an accomplice was a proximate cause of the death. (/bid.) In homicide cases, a “cause of death of [the decedent] is an act or omission that sets in motion a chain of events that producesas a direct, natural and probable consequenceofthe act or omission the death of [the decedent] and without which death would not occur.” (People v. Cervantes (2001) 26 Cal.4th 860, 866, quoting CALJIC No. 3.40.) A direct connection between an injury andthe alleged act, without intervening force, generally establishes proximate causation. (/bid.) However, an intervening force, as in this case with the actions of Canas, does not foreclose a finding ofproximate cause. (/d. at pp. 866-867.) Provocative act murder is shorthand “‘for that category of intervening act causation cases in which, during commissionof a crime, the intermediary (i.e., police officer or crime victim) is provoked by the defendant’s conductinto [a response that results] in someone’s death.’ ” (People v. Concha, supra, 47 Cal.4th at p. 663, quoting Peoplev. Cervantes, supra, 26 Cal.4th at pp. 872-873, fn. 15.) The doctrine arose as a form of implied malice murder and wasderived as an offshoot of the felony-murder tule. (People v. Cervantes, supra, 26 Cal.4th at p. 867, citing People v. Washington (1965) 62 Cal.2d 777, 782.) In Washington, this Court held that for a defendantto be guilty under the felony murderrule, “the act of killing must be committed by the defendantor by his accompliceacting in furtherance of their common design.” (People v. Washington, supra, 62 Cal.2d at p. 783.) Nevertheless, althoughthe felony murderrule does not apply, it does not follow that the defendantis not guilty of murder where death is caused by a third person. 10 “[W]hen the defendantintendsto kill or intentionally commitsacts that are likely to kill with a consciousdisregard for life, he is guilty of murder even though he uses another person to accomplish his objective.” (/d. at p. 782.) Thus, for instance, defendants whoinitiate gun battles may be found guilty of murderif their intended victimsresist and kill. Under such circumstances, “the defendant for a base, anti-social motive and with wanton disregard for humanlife, does an act that involves a high degree of probability that will result in death”[citation], and it is unnecessary to imply malice by invoking the felony-murder doctrine. (Jbid.) The doctrine was more fully developed in People v. Gilbert (1965) 63 Cal.2d 690, reversed on other groundsin Gilbert v. California (1967) 388 U.S. 263 [87 S.Ct. 1951, 18 L.Ed.2d 1178]. (People v. Cervantes, supra, 26 Cal.4th at p. 868.) In Gilbert, this Court discussed the necessary features of a “provocative act” as well as the required causal link between a defendant’s provocative act and the death of another: Whenthe defendant or his accomplice, with a conscious . disregard forlife, intentionally commits an actthatis likely to cause death, and his victim or a police officer kills in reasonable response to such act, the defendant is guilty of murder. In such a case,the killing is attributable, not merely to the commission ofa felony, but to the intentional act of the defendant or his accomplice committed with conscious disregard forlife. Thus, the victim’s self-defensive killing or the police officer’s killing in the performanceofhis duty cannot be considered an independentintervening cause for which the defendantis not liable, for it is a reasonable response to the dilemmathrust upon the victim or the policemanbythe intentional act of the defendant or his accomplice. (People v. Gilbert, supra, 63 Cal.2d at pp. 704-705.) Under such circumstances,principles of vicariousliability also apply as long as the accomplice causes the death of another by an act committed in furtherance of the common design. (/d. at p. 705.) 11 The general rule is that “no criminal liability attaches to an initial remote actor for an unlawfulkilling that results from an independent ‘ intervening cause(i.e., a superseding cause). In contrast, when the death results from a dependentintervening cause, the chain of causation ordinarily remains unbroken andtheinitial actor is liable for the unlawful homicide.” (People v. Cervantes, supra, 26 Cal.4th at pp. 868-869.) Whetherthe actual cause of death is independent and intervening or dependentturns on the foreseeability of the death from the defendant’s act; i.e. whetherit is a natural and probable consequence of the defendant’s act. (People v. Roberts (1992) 2 Cal.4th 271, 319, 321-322.) The principles derived from these andrelated authorities have been summarized as follows. “In general, an ‘independent’ _ intervening cause will absolve a defendantof criminal liability. (1 Witkin & Epstein, Cal. Criminal Law (2d ed. 1988) § 131, p. 149.) However, in order to be ‘independent, the intervening cause must be ‘unforeseeable . . . an extraordinary and abnormaloccurrence, whichrisesto the level of an exonerating, superseding cause.’ (People v. Armitage (1987) 194 Cal.App.3d 405, 420-421 [239 Cal.Rptr. 515].) On the other hand, a ‘dependent’ intervening cause will not relieve the defendant of criminal liability. ‘A defendant may becriminally liable for a result directly caused by his act even if there is another contributing cause. If an _ intervening causeis a normal and reasonably foreseeable result of defendant’s original act the interveningactis. “dependent”and nota superseding cause, and will not relieve _ defendantofliability. [Citation.] “[ ] The consequence need not have been a strong probability; a possible consequence which might reasonably have been contemplated is enough.[] The precise consequence need not have been foreseen;it is enoughthat the defendant should have foreseen the possibility of some harm ofthe kind which mightresult from his act.” [Citation.]’ [Citations omitted.] (People v. Cervantes, supra, 26 Cal.4th at p. 871.) “{T]here is no bright line demarcating a legally sufficient proximate - cause from onethat is too remote. Ordinarily the question will be for the 12 jury, though in someinstances undisputed evidence mayreveal a cause so remote that a court may properly decide that norationaltrier of fact could find the needed nexus.” (People v. Roberts, supra, 2 Cal.4th at p. 320, fn. 11.)'° The evidence showsthat appellant watched as Morales physically attacked Canas, and continued to watch as Moralesescalated his attack to a deadly weaponassault with a knife after Canas fought back against the initial punches by Morales. Appellant took the rifle out of her car and cockedit during the struggle between Morales and Canas. When Canasgot the upper hand by throwing Moralesto the ground and disarming him, and Morales ran to the car, appellant met him atthe rear of the car and gave him the rifle. Canastestified that he feared for his life when he sawtherifle. (2 RT 284.) When Canas saw appellant handingthe rifle to Morales, Canas " decidedto act, and he ran to Morales, struggled briefly over the gun during whichhe wasshotthree times, and then Canasfreed the rifle from Morales, and shot him,all of which happenedin a matter of 5 to 10 seconds. (2 RT 272-275,328.) | . Underthe factual circumstances, there is nothing about Canas’s shooting Morales that was “ ‘ “an extraordinary or abnormal occurrence” ’”. (People v. Cervantes, supra, 26 Cal.4th at p. 871.) That Canas would respond with deadly force upon seeing appellant provide Morales with the meansofkilling him was, at minimum “‘ “a possible consequence which might reasonably have been contemplated.” ’” (Ibid.) '° Although acknowledgingthat Roberts is not a true provocative act murdercase, this Court stated that “whether or not a defendant’s unlawful conductis ‘provocative’ in the literal sense, when it proximately causes an intermediary to kill through a dependentinterveningact, the defendant’s liability for the homicide will be fixed in accordance with his criminal mens rea.” (People v. Cervantes, supra, 26 Cal.4th at pp. 872-873, fn. 15.) 13 Morales had already escalated a physical confrontation into a deadly assault by the time appellant retrieved the rifle and readiedit to shoot. In light of the circumstances leading to Canas’s deadly response, the evidence amply supports the jury’s finding that appellant’s act was the proximate cause of Morales’s death and fully supports the murder conviction. | Appellant argues that Morales’s provocative acts cannot be the sole basis for the murder conviction (ABOM 17-22), which is truesofar asit goes. In People v. Antick (1975) 15 Cal.3d 79, the defendant was 30 feet away whenthe police confronted his accomplice and the accomplice started an exchangeof gunfire. (/d. at p. 83.) The defendant“did not participate in the immediate events which preceded his accomplice’s death.” (/d.at p. 90.) In People v. Antick, supra, 15 Cal.3d 79, we merely said that “neither the felony-murder doctrine nor the theory of vicariousliability may be used to hold a defendant guilty of murdersolely because of the acts on an accomplice,if the accomplice himself could not have been foundguilty of the same offense for such conduct.” (People v. McCoy (2001) 25 Cal.4th 1111, 1119.) The accomplice in Antick caused his own death byinitiating the gun battle. Since the accomplice could not be criminally liable for causing his own death, neither could the defendant. (People v. Antick, supra, 15 Cal.3d at p. 91.) Considering whether appellant’s acts were the proximate cause of Morales’s death in light of the surrounding circumstances, including _ Moralesactions, is not the same as imposingliability for Morales’s death based on Morales’s actions being the sole proximate cause ofhis death. Even if Morales’s acts were viewed as a proximate causeofhis death, appellant cannot escape murderliability where her acts were also a ‘proximate causeofthe death. (People v. Caldwell (1984) 36 Cal.3d 210, 219-220.) In Caldwell, this Court concluded that the jury could reasonably 14 find that the joint actions of the decedent—aimingat deputies and ignoring orders to put his gun down—andthe defendants—dangerous getaway driving and aiming a shotgun—provokedthe deadly response despite the “Jull in the action” between the defendants’ actions and the gunfire that killed the decedent. (/d. at pp. 219-220.) In this case, there wasno “lull in the action” between appellant’s acts and Morales’s death. If anything, appellant’s acts and Morales’s acts combined to make a deadly combination that Canas had no choice butto react to, as hetestified. Additionally, as in Caldwell, the jury could have reasonably determinedthat the actions of appellant and Morales “reflected a common determination”to kill Canas andthe acts were “interdependent.” (Peoplev. Caldwell, supra, 36 Cal.3d at p. 220.) The jury’s guilt finding on the attempted murder chargeandtrue finding on the firearm use enhancement demonstrate its conclusion that appellant and Morales acted together in orderto kill Canas. . Aspart of interdependentacts, appellant’s acts were a cause-in-fact of Morales’s death, and need only be a substantial factor to be a proximate case. (People v. Caldwell, supra, 36 Cal.3d at p. 220.) A cause-in-factis not a substantial factor only if the part it played wasinfinitesimalor theoretical. (/bid.) The settled view is that when co-felonsare acting in concert, “an individual’s contribution to the resulting death need not be minutely determined.” (/d. at p. 221.) Appellant’s acts in retrieving, cocking, and providingthe rifle to Morales cannot be viewed as only having an infinitesimalor theoretical role in causing Canas’s deadly response. Thus, even viewing Morales’s acts as a proximate cause does not relieve appellantofliability because the evidence supports the conclusion that Morales’s acts were not the sole proximate cause. 15 Appellant’s efforts to minimize heracts in retrieving, cocking, and providing the rifle to Morales after Morales had attacked and used a knife against Canas are unpersuasive. She likens her case to Cervantes, supra. However, unlike the defendant in Cervantes, who “was nottheinitial aggressorin the incident that gave rise to the provocative act” (People v. Cervantes, supra, 26 Cal.4th at p. 872, fn omitted), appellant was the instigator of the confrontation, she took a loadedrifle to that confrontation, and she gaveit to Morales when his other efforts failed. Also unlike in Cervantes, Canas wasnot only present when appellant’s provocative acts occurred, he was the target of appellant’s provocative acts and identified them as the cause of his actions in rushing,fighting, disarming andfinally killing Morales. Thus,the “critical fact” placing this case within the parameters of other provocative act murdercasesis that Canas was responding to appellant’s provocative acts whenhe killed Morales. (People v. Cervantes, supra, 26 Cal.4th at pp. 872-873.) Appellant says her acts were not egregious enoughsinceheracts only aided Moralesinthe intendedkilling of Canasrather than actually perpetrating the attempted murderherself. She sees a “commonthread” running through provocative act cases: a violent life-threatening act that provokes the lethal response. (AOB 27.) There are several problems with appellant’s assertion. This Court has clearly described provocative act murderas a form of murder resting upon “traditional terms ofproximate cause and malice.” (People v. Cervantes, supra, 26 Cal.4th at p. 868, citing People v. Gilbert, supra, 63 Cal.2d 690.) The basic principle of proximate cause was articulated over a century earlier and is followedin this, and otherstates. (People v. Cervantes, supra, 26 Cal.4th at pp. 869-871.) Although recognizing that the doctrine “hastraditionally been invokedin cases in 16 whichthe perpetrator of the underlying crimeinstigates a gun battle. . .” (id. at p. 867), this Court did not imposea particular factual requirement for the doctrine to apply. Instead, this Court relied on the principles of proximate causation to circumscribe the doctrine’s applicability. Indeed, this Court rejected any “ ‘bright line demarcatinga legally sufficient proximate cause from onethat is too remote.’ ” (/d. at p. 871, quoting People v. Roberts, supra, 2 Cal.4th at p. 320, fn. 11.) Thus, appellant’s apparent suggestion that a particular act of violence should limit the reach of the provocative act doctrine is unsupported in the developmentofthe doctrine and the proximate causation element upon whichit is based. For example, in People v. Lima (2004) 118 Cal.App.4th 259, the appellate court found the provocative act theory of murder applicable to the defendant’s [a]ttempting to escape the scene of a robbery byinitiation a high-speed and reckless charge, where the defendant ran red lights and stop signs, collided with one vehicle and almost collided with several others.” (Id. at p. 265.) During the chase, a pursuing police vehicle collided with another vehicle and the driver of that vehicle died as a result. (/d. at p. 264.) The defendantin Lima argued,like appellant argueshere,thathis reckless driving wasinsufficient for provocative act murderliability because hehadnotusedlethal force with lethal intent. (/d. at p. 265.)While recognizing that “provocative act murderhastraditionally involved cases wherethe defendantinstigates a gun battle,” the appellate court held that“it is not by definition limited to such factual situations. Neither its elements nor any case law interpreting this doctrine support such a limitation.” (Jd. at p. 268.) | In Lima, the defendant’s actions showed “a conscious disregard for the obvious danger to humanlife,” thereby supporting findings of both implied malice and a provocative act. (People v. Lima, supra, 118 Cal.App.4th at p. 267.) In this case, appellant’s act ofproviding a loaded 17 and cockedrifle to an assailant who hadalready escalated a physical confrontation into a deadly assault also amply supporteda finding of implied malice and a provocative act. Of course, here, the jury also found that appellant intended that Canasbe killed, thereby showing express malice as well as a provocativeact. Moreover, appellant provides no convincing reason for imposing the requirement she advocates. An aider and abettor’s liability may attach for a wide variety of conduct (see CALCRIM No.401).'' This Court has held that conduct which provokesan intervening causethat is a normal and reasonably foreseeable result of that conduct is sufficient to support provocative actliability. (People v. Cervantes, supra, 26 Cal.4th at p. 871.) The consequence of a defendant’s conduct need not be strongly probable or actually foreseen; it is enough that the consequenceis possible and reasonably foreseeable. (Ibid.) Considered underthose established parameters, appellant’s conduct more than adequately fits. She was present and standing in Canas’s field of view when Moralesinitiated his attack, | then escalated it into a deadly assault with a knife. Indeed, when Canas and Morales were engaged, appellant retrieved the rifle from her car and cocked it, thereby readyingit to kill. It wastherifle that quite understandably caused Canasto bein fearfor his life and when Moralesfailed in his knife assault andran to appellant, she gave him therifle she had readiedto fire. Cocking and givingthe rifle to the person whohad already demonstrated '' As given in this case, CALCRIM No. 401 providesin pertinent part: - Someoneaids and abets a crimeif he or she knowsthe perpetrator’s unlawful purpose and heor she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator’s commission ofthat crime. (2 CT 364.) 18 his intention to kill Canas resulted in Canasacting to protect his ownlife by killing Morales. There was nothing so remote about Canas’s responsethat “ “no rational trier of fact could find the needed nexus.’ ” (/d. at pp. 871- 872, quoting People v. Roberts, supra, 2 Cal.4th at p. 320, fn. 11.) Appellant seeks to have this Court place a boundary aroundthe provocative act doctrine that is not supported by the developmentof the doctrine or the principles upon which it was founded. Heractofinserting a loaded and cocked firearm into an already volatile and deadly confrontation wassubstantial evidence supportedthe jury finding that her acts were a proximate cause Morales’s death. This Court should reaffirm the principles governing the provocative act doctrine, and apply them to affirm the judgment. II. THE INSTRUCTIONAL ERROR ON FIRST DEGREE MURDER WAS HARMLESS BEYOND A REASONABLE DOUBT WHERE THE JURY WAS REQUIRED TO, AND DID FIND PREMEDITATION AND DELIBERATION, AND THE EVIDENCE WAS OVERWHELMING AND UNCONTESTED THAT APPELLANT PREMEDITATED AND DELIBERATED Appellant contends the Court of Appeal misapplied the harmless error standard of Chapmanv. California (1967) 386 US. 18 [87 S.Ct. 824, 17 L.Ed.2d 705]. In conformance with properinstructions, the jury found appellant intended to kill when she committed the acts that provoked Canas to kill Morales. The jury also found that she, Morales, or both ofthem, decidedto kill as a result of premeditation and deliberation. In this case, where the jury made those findings and the evidence ofpremeditation and deliberation on appellant’s part was overwhelming and uncontested, the trial court’s instructional error on the murder count was harmless beyond a reasonable doubt. In its instruction on provocative act murder pursuant to CALCRIM No. 560, the trial court told the jury: 19 If you decide that the defendantis guilty of murder, you must decide whether the murderis first or second degree. To prove the defendant is guilty of first degree murder, the People mustprovethat: One,as a result of the defendant’s provocativeact, Fernando Morales waskilled during the commission of attempted willful, deliberate, and premeditated murder; and Two,defendant intended to commit attempted willful, deliberate, and premeditated murder whenshe did the provocativeact. In deciding whether the defendant intended to commit attempted willful, deliberate, and premeditated murder and whether the death occurred during the commission of attempted, willful, deliberate, and premeditated murder, you should refer to the instructions I have given you on attempted willful, deliberate, and premeditated murder. (8 RT 1676-1677.) Thetrial court had earlier instructed the jury pursuant to CALCRIM No. 601 on the requirements for determining whether the attempted murder was premeditated and deliberate: If you find the defendant guilty of attempted murder under Count 1, you must then decide whether the People have provedthe additional allegation that the attempted murder was done willfully and with deliberation and premeditation. The defendant Perla Gonzalez acted willfully if she intendedto kill when she acted. The defendantPerla Gonzalez deliberated if she carefully weighed the considerations for and against her choice and, knowing the consequences, decidedto kill. The defendant Perla Gonzalez premeditated if she decidedto kill before acting. The attempted murder was done willfully and with deliberation and premeditation if either the defendant or Fernando Morales or both of them acted with that state of mind. . (9 RT 1653-1654.) Undervicarious liability for attempted murder, “although each defendant musthavethe intent to kill, a defendant maybevicariouslyliable for premeditated and deliberate componentofthe mensrea of an 20 accomplice.” (People v. Concha, supra, 47 Cal.4th at p. 665.) The principles of vicarious liability are expressed in the third paragraph of CALCRIM No. 601. However, the sameis not true under accomplice liability for murder. If murderliability is established, the degree is determined under Penal Code section 189. (/d. at p. 661.) As relevant here, Penal Code section 189 defines first degree murderas “any other kind _ of willful, deliberate, and premeditated killing ....” First degree murder liability is properly found “if the charged defendant personally acted willfully, deliberately, and with premeditation.” (/d. at p. 662.) In Concha,the trial court gave CALCRIM No.601 as to the attempted murder charge and “inadequately instructed the jury”onfirst degree murder because “the instructions failed to require that the jury resolve whether each defendantacted willfully, deliberately, and with premeditation ....” (People v. Concha, supra, 47 Cal.4th at p. 666.)'” 2 Tn its instruction on provocative act murder,the trial court instructed the jury: “If you decide that the defendant is guilty of murder, you must decide whether the murderis first or second degree [{] To prove that the defendantis guilty offirst degree murder, the People must prove that: [{] 1. [Decedent] was killed during an attempt to commit murder OR [§] 2. The defendant or an accomplice intended to commit robbery or murder when he did the provocative act. [{] In deciding whetherthe defendant or accomplice intended to commit robbery or murder and whether the death occurred during the attempted robbery or murder, you should refer to the instructions I have given you on those crimes. [f] Any murderthat does not meet these requirementsforfirst degree murder,is second degree murder.” (People v. Concha (2010) 182 Cal.App.4th 1072, 1081.) 21 In Neder v. United States (1999) 527 U.S. 1 [119 S.Ct. 1827, 114 L.Ed.2d 35], the Supreme Court concludedthat the failure to instruct on an element of an offense is subject to harmless error review under Chapmanv. California, supra, 386 U.S. 18. (Neder v. United States, supra, 527 U.S.at pp. 7-15.) The test for harmless-error analysis under Chapmanis, “whether it appears ‘beyonda reasonable doubtthat the error complained of did not contribute to the verdict obtained.’ ”. (/d. at p. 15.) In Neder, the Court lookedat “other cases decided under Chapmanfor the proper mode of analysis.” (/d. at p. 18.) Considering erroneousadmission and exclusion of evidence underthe Fifth and Sixth Amendments, the Court stated, “We think, therefore, that the harmless-error inquiry must beessentially the same: Is it clear beyond a reasonable doubtthata rational jury would have found the defendant guilty absent the error?” (Neder v. United States, supra, 527 U.S.at p. 18.)"° In Neder, the trial judge failed to instruct the jury on the materiality elementof the several fraud and tax charges and, in fact, instructed the jury as to some ofthe charges that materiality was not a question for the jury to decide despite being referenced in the indictment. (Neder v. United States, supra, 527 U.S. at p. 6.) The Supreme Court found, based on the evidence, that “no jury could reasonably find that Neder’s failure to report substantial amounts of incomeonhis tax returns wasnot‘a material matter.’ ” (/d. at p. 16, fn. omitted.) The Court said the materiality element was “ncontrovertibly establish[ed]” and Neder never argued otherwise. (Ibid.) The court said that when an omitted element is “uncontested and supported by overwhelming evidence, such that the jury verdict would have been the 3 Contrary to appellant’sclaim, the Court of Appealin this case articulated the standard for harmless error review in complete conformance with Neder. (People v. Perla Isabel Gonzalez, supra, slip opn. at p. 28.) 22 same absentthe error, the erroneousinstruction is properly found to be harmless. We think it beyond cavil here that the error ‘did not contribute to the verdict obtained.’ ” (/d. at p. 17, quoting Chapman v. California, supra, 386 US.at p. 24.) The Court concluded “that where an omitted elementis supported by uncontroverted evidence,” finding the error harmless appropriately balances society’s interests. (Neder v. United States, supra, 527 U.S. at p. 18.) Harmless error review “will often require a reviewing court conduct a thorough examination of the record.” (/bid.) Harmlesserror will not be found, “for example, where the defendant contested the omitted element and raised evidence sufficient to support a contrary finding.” ([bid.) Appellant contends her case does not come within the harmless error parameters outlined in Neder. However, she errs both in her reading of Neder andthe record. Appellant says she contested her mentalstate, but, in fact, while she contested whether she intendedto kill, she never disputed or presented any evidence that she did not premeditate and deliberate. The evidence was undisputed that appellant made a premeditated and deliberate decision regarding the rifle. When the jury found that appellant acted with the intent to kill, premeditation and deliberation was a foregone conclusion. The defense disputed two issues in this case: whether appellant acted with the intent to kill; and whether Canas’s killing of Morales was an independent,illegal act. Throughout his closing argument, defense counsel repeatedly asserted that lack of intent to kill was a reasonable interpretation of the evidence. (See 9 RT 1738-1739, 1742, 1744-1748, 1755-1757, 1761, 1764-1765, 1769.) He called it “the crucial point.” (9 RT 1739.) At one point in his argument, defense counsel made a passing reference that the evidence did not show premeditation and deliberation, but that wasin the context to asserting lack of intent to kill. (9 RT 1767.) 23 Moreover, defense counsel did not contest or dispute the essential facts underlying premeditation and deliberation. He agreed that appellant watched for 5 to 10 minutes as Moralesfirst attacked Canas with fists, then escalated the assault by pulling his knife and cutting Canas. He agreed she also saw that Canas gotthe better of Morales at both levels and she retrieved her loadedrifle, made it readyto fire and gave it to Morales with the intent to assist Morales who wasin danger. (9 RT 1742, 1751, 1765.) In short, defense counsel conceded that appellant made a premeditated and deliberate decision regardingherrifle, but asserted that decision was not to kill. The jury maderelevant findings that are not impacted by the instructional error. In its harmless error analysis, the appellate court in People v. Concha, supra, 182 Cal.App.4th 1072, concludedthat the jury found that the defendant intendedto kill or shared in that intent, the . defendant personally committed a provocative act, and at least one of the _ assailants had premeditated and deliberated the intent to kill. (/d. at pp. 1089-1090.) Similar factual findings were madein this case. In returning a guilty verdict on the attempted murder count, the jury resolved the disputed issue of intent by finding that appellant intended to ~ kill when she committed the provocative act. The jury found appellant personally usedthe rifle in the commission of the attempted murder. The jury also found thatthe attempted murder was premeditated and deliberate and reachedthat conclusion by relying on appellant’s intent to kill, Morales’s intent to kill, or both of their intents to kill. The evidence of premeditation and deliberation on appellant’s part was overwhelming, while the evidence as to Morales was weak,at best. As the majority in the Court of Appeal aptly observed, appellant was the driving force behind the events leading to the deadly confrontation. (People v. Perla Isabel Gonzalez, slip opn. at p. 33.) She was motivated to 24 punish Canasforhis treatment ofher brother; after learning of Canas’s plan to pick up his daughter, appellant planned the assault on Canas and recruited her confederates; appellant had the loadedrifle in her car that morning when she beganto carrying her plan; appellant droveto the ambushsite and waited for Canas’s arrival after verifying that Canas had not yet picked up his daughter; appellant stayed by her car whereherrifle waslocated as Morales attempted to carry out her intended punishment of Canas; appellant watched as Canas bested Morales,first with fists, then disarmed Moralesafter he pulled a knife and cut Canas; and appellant retrieved her loadedrifle, cocked it and gaveit to Morales after he was unable to overcome Canas’sresistance, thereby provoking Canas’s deadly response. In responding to a narrower view ofthe evidence bythedissent, the majority aptly observed: [Appellant] did more than merely handtherifle to Morales, as it was [appellant’s] idea, among otherthings, to assault Canasin thefirst place; it was [appellant’s] rifle; it was[appellant’s] decision to bring the /oadedrifle to the assault; and it was [appellant’s] decision to pull outtherifle from hercar, when theassault turned deadly, cock it and hand it to Morales to use against Canas. (People v. Perla Isabel Gonzalez, slip opn.at p. 34, italics in orig.) _ To those observations,it can be added that by makingthe rifle ready to kill and giving it to Morales to kill Canas, appellant was demonstrating that she would do whatit took to ensure that her original goal of punishing Canas wasfulfilled. Rather than breakingoffthe confrontation unfulfilled, appellant demonstrated her determination to make sure Canas was punished even if it meant he would haveto be killed. Those facts demonstrated an overwhelming and uncontestedbasis in the evidence for premeditation and deliberation. 25 In finding that the attempted murder was premeditated and deliberate, the jury necessarily found that either appellant or Morales, or both, acted with an intent to kill that was premeditated and deliberate. As described, there was abundantcircumstantial evidence that appellant acted upon premeditated deliberation. On the other hand, noneofthe evidence provided anysignificant support to an inference that Morales reached a premeditated and deliberate intent to kill. There is no evidence Morales knew appellant had the loadedrifle in her car when she picked him upthat morning. The discussions between Jorge and Morales involved a physical beating. Morales began his assault of Canas by attempting to punch him.It was only when Canas avoided thepunches and retaliated that Morales escalated to deadly force, and it was only after Canas bested Morales despite his use of a knife that Moralesran to retrieve the rifle, which appellant had readiedto fire. The facts surrounding Morales showa classic case of a rash, impulsive decision, brought on bythe heat of battle and the humiliation of defeat. There was no evidencethat appellant’s decision was rash and impulsive. Indeed, in his argument, defense counsel maintained that | appellant saw Morales in need ofassistance and retrieved herriddle to assist him. Nothing in that argument suggested her decision was rash and impulsive; it only suggested that she didnotintend to kill, which was the crucial issue for the defense. This Court has observedthat, “analyzing evidence, and determiningthe facts, are functions peculiarly within the expertise ofjuries.” (People v. Guiton (1993) 4 Cal.4th 1161, 1126.) “In analyzing the prejudicial effect of error, however, an appellate court does not assume an unreasonable jury. Such an assumption would makeit — virtually impossible to ever find error harmless. An appellate court necessarily operates on the assumption that the jury has acted reasonably, unless the record indicates otherwise.” (Jbid.) Faced with uncontested 26 evidence overwhelmingly demonstrating that appellant reached a premeditated anddeliberateintent to kill and evidence strongly supporting the conclusion that Morales intendedto kill as a result of a rash impulse, a reasonable jury would not opt to base its finding on Morales rather than appellant.’ The jury found against appellant on the issue ofintent to kill, and the evidence ofpremeditation and deliberation was both uncontested and overwhelming. Theinstructional error was harmless beyond a reasonable doubt. 4 Contrary to appellant’s claim, the jury’s question asking where the second degree murderinstruction was located did not indicate it was focused on this issue. (See 2 CT 405.) The definition of second degree murder in the instructions was one sentence at the end of CALCRIM No. 560, the lengthy instruction on provocative act murder. (2 CT 377-379.) The jury’s question shows nothing morethan it missed that sentencein its review ofthe instructions. 27 CONCLUSION For the foregoing reasons, respondentrespectfully requests that this Court find that appellant’s murder conviction is supported by the evidence andthatthe trial court’s instructional error was harmless beyond a reasonable doubt. Dated: August 10, 2011 Respectfully submitted, KAMALAD. HARRIS Attorney General of California DANER. GILLETTE Chief Assistant Attorney General GARY W. SCHONS Senior Assistant Attorney General STEVEN T. OETTING Supervising Deputy Attorney General LM)Lbin teed WILLIAM M. Woop Supervising Deputy Attorney General Attorneysfor Plaintiffand Respondent $D2011700918 80529771.doc 28 CERTIFICATE OF COMPLIANCE I certify that the attached Respondent’s Answering Brief on the Merits uses a 13 point Times New Romanfont and contains 8,557 words. Dated: August 10, 2011 KAMALAD. HARRIS Attorney General of California [tam In- Whol WILLIAM M. WooD Supervising Deputy Attorney General Attorneysfor Plaintiffand Respondent DECLARATION OF SERVICE BY U.S. MAIL & ELECTRONIC SERVICE Case Name: PEOPLE v. PERLA ISABEL GONZALEZ I declare: Case No.: $189856 I am employed in the Office of the Attorney General, whichis the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney General for collection and processing ofcorrespondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mailcollection system at the Office of the Attorney General is deposited with the United States Postal Service that same day in the ordinary course ofbusiness. On August 11, 2011, I served the attached RESPONDENT’S ANSWERINGBRIEF ON THE MERITSbyplacing a true copythereofenclosed in a sealed envelope with postage thereon fully prepaid, in ‘the internal mail collection system at the Office of the Attorney Generalat 110 West A Street, Suite 1100, P.O. Box 85266, San Diego, CA 92186-5266,addressed as follows Laura G. Schaefer Boyce & Schaefer 934 23rd Street San Diego, CA 92102-1914 Attorneyfor Perla Isabel Gonzalez 2 Copies Tressa S. Kentner, Court Executive Officer San Bernardino County Superior Court Appellate Division Deliver to: Hon. Michael A. Knish, Commissioner 401 N. Arrowhead Avenue San Bernardino, CA 92415-0063 Cameron Page, Supervising Deputy District Attorney San Bernardino County District Attorney's Office Appellate Services Unit 412 W.Hospitality Lane, First Floor San Bernardino, CA 92415-0042 Court ofAppeal Fourth Appellate District, Division 1 750 “B”Street, Ste. 300 San Diego, CA 92101 andI furthermore declare, I electronically served a copy of the above documentfrom Office of the Attorney General's electronic notification address ADIEService@doj.ca.gov on August 11, 2011 to Appellate Defenders, Inc.'s electronic notification address eservice-criminal@adi- sandiego.com. I declare under penalty ofperjury under the lawsofthe State of California the foregoing is true and correct and that this declaration was executed on August 11, 2011, at San Diego, California. Terri Garza Declarant $D2011700918 70491894.doc YerWyo Signatute
