Opinion
A149469
08-22-2018
THE PEOPLE, Plaintiff and Respondent, v. DONALD RAY HILL, JR., Defendant and Appellant.
ORDER MODIFYING OPINION AND DENYING REHEARING
[NO CHANGE IN JUDGMENT] BY THE COURT:
The opinion filed herein on August 22, 2018 is modified as follows:
The first sentence in the first full paragraph on page 14 is modified to read: "There was also substantial evidence from which a reasonable jury could conclude that Mitchell and Jeffreys were not acting in concert, or that Hill did not know that they were doing so."
The second sentence in the first full paragraph on page 14 is modified to replace "acknowledged" with "articulated the defense theory of the evidence."
These modifications do not effect a change in the judgment.
Respondent's petition for rehearing is denied. Dated:__________
/s/_________
Kline, P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Solano County Super. Ct. No. FCR306922)
In April of 2014, defendant Donald Hill was standing with a group of men near the mailboxes outside his apartment complex when he allegedly handed a gun to Timothy Mitchell. Shortly thereafter Mitchell, together with Danny Jeffreys, walked behind a fence and opened fire on another group of men across the street. Tereaun Berry was killed, and his brother Trent was injured. Hill was charged with murder and attempted murder on the theory that he aided and abetted both Mitchell and Jeffreys by handing Mitchell the gun. He was tried separately from several other defendants and a jury found him guilty as charged. On appeal, he raises numerous challenges to his convictions. With respect to the murder count, he argues that the trial court erred in refusing to instruct the jury on the lesser included offense of attempted murder and that the trial court erred in responding to the jury's question during deliberations regarding whether it mattered who fired the fatal shot. With respect to the attempted murder count, he argues that certain instructions were erroneous because they only referred to the state of mind of the perpetrator and not the defendant. We reverse the murder conviction and affirm the attempted murder conviction.
For clarity, we will occasionally refer to Trent and Tereaun Berry by their first names.
FACTUAL BACKGROUND
We summarize only certain testimony at trial for context and as relevant to the issues on appeal.
At approximately 5:19 p.m. on April 11, 2014, Fairfield police were dispatched to 1975 Grande Circle, a "horseshoe"-shaped street with apartment complexes on each side, in response to a report of a shooting. Tereaun Berry had been shot several times and was lying on the grass in front of 1960 Grande Circle with a crowd surrounding him. He was transported to North Bay Hospital where he was pronounced dead shortly thereafter. Trent Berry, Tereaun's brother, survived a gunshot to his upper right thigh. 1. Surveillance Videos
The police obtained numerous surveillance videos at various locations around the complex and compiled them to reflect the time period of the shooting, from 5:12 p.m. to 5:21 p.m., which were introduced into evidence and shown to the jury. We have reviewed the various videos contained on the flash drive labeled "People's Exhibit 3," which depict as follows:
At around 5:13 p.m., Travon Wayfer and Darren McFadden park their cars in the parking lot behind 1941 Grande Circle. Jeffreys and Mitchell get out of Wayfer's car and Wayfer, Mitchell, and Jeffreys walk toward the mailboxes at the front of the complex, with McFadden following behind. Hill and several others are standing in the area near the mailboxes, while Lamont Harris and Marshawn Stewart are in a group across the street. Around 5:13:45, as Wayfer and the others approach, Mitchell twice waves his arms in the air. Hill walks to the front of a car parked near the mailboxes and Jeffreys briefly ducks alongside it. At 5:14:11, Jeffreys walks to the left out of view of the camera. Hill briefly follows him at a distance and then returns. Hill's group continues to stand around the mailboxes, looking across the street. At 5:14:42, a Kia comes down the street, turns around in the front of the mailboxes and Hill's group, drives back up the street a short distance, and parks. Three men then stand on the sidewalk next to the Kia. At 5:17:03, Wayfer takes off the peach-colored hoody he is wearing and gives it to Mitchell, who puts it on. At 5:17:27, Trent Berry drives past the mailboxes in a white car, rounds the corner, and parks behind the Kia. Tereaun Berry, Louis McCray, Stewart, and Harris are standing around nearby. At 5:17:35, Hill walks over to Mitchell and appears to hand him a gun, which he puts in the peach hoody's pocket. Mitchell then walks across the street and disappears behind a fence. Hill and the others continue to look across the street. Mitchell's head can be seen moving along the fence toward the parking lot of 1955 Grande Circle, which is directly across the street from Harris's group.
As noted below, Hill disputes that the video depicts him handing Mitchell a gun, and testified at trial that Mitchell already had a gun and that he approached Mitchell and extended his hand to ask for it.
At 15:18:09, Harris can be seen raising his left arm and gesturing toward Hill's group. At approximately 5:18:30, gunfire begins (based on the reaction of the two groups). Harris's group, including Tereaun and Trent Berry, begin to run toward the sidewalk and the adjacent grassy area. Trent and Tereaun both fall, get up, and run down the sidewalk. Tereaun falls a second time at approximately 5:18:43. Harris can be seen firing shots toward 1955 Grande Circle while running along the sidewalk. Hill and his group continue to move around the mailboxes. At 5:18:36, Mitchell can be seen moving back along the fence. He eventually emerges from behind the fence, falls, and then moves out of sight of the camera. At 5:19:30 Wayfer and McFadden return to their cars in the parking lot. Wayfer backs out and leaves. As McFadden is backing out, Mitchell, no longer wearing the peach hoody, gets into the car. Hill then comes running over to the car, opens the rear passenger door, and gets inside. About eight seconds later, he exits the car and runs back across the parking lot toward his apartment, with his left arm swinging and his right arm held at his waist. McFadden then drives out of the parking lot. 2. Forensic and Autopsy Evidence
An evidence technician recovered twelve .40-caliber casings and six 9-millimeter casings from the parking lot of 1955 Grande Circle, where the videos appeared to show Mitchell and Jeffreys firing. Five .25-caliber casings were recovered in front of 1960 Grande Circle near where Harris and Stewart had been standing, close to a black Kia with a flat tire and containing several bullet holes. A trail of blood began near the Kia and extended north for about 35 yards.
Dr. Arnold Josselson performed an autopsy on Tereaun Berry. Tereaun had been hit by three or four bullets, causing four distinct gunshot wounds. The fatal shot entered through the left side of his back, passed through the spleen and stomach, and came to rest in his heart. Tereaun died from loss of blood. A medium-caliber bullet was recovered from the heart. Dr. Josselson opined that the fatal bullet was not fired from a 9-millimeter handgun, because the bullet did not have a jacket, and Dr. Josselson could not "recall a projectile from a .9mm that did not have a jacket, but I'm not sure that couldn't happen." 3. Trent Berry
Trent Berry drove to Grande Circle to meet his brother Tereaun and arrived at approximately 5:17 p.m. He parked his car and saw his brother, McCray, Stewart, and Harris standing around a black Kia. Trent greeted his brother, who told him to leave the car running because " 'I don't know what they might do,' " refering to Hill's group across the street. Trent did not hear any threats exchanged, nor did he see anyone on his side of the street display a weapon. After about five minutes, Trent heard gunshots ring out.
Trent heard an initial group of approximately seven shots, then a pause followed by "a lot more" gunshots. Trent was hit in his upper right thigh during the first round of shots, and during the pause between the groups of shots he got up and ran. Trent stopped to help his brother, and eventually went to the hospital for his own injuries. 4. Travon Wayfer
Wayfer was charged with the murder of Tereaun Berry, entered a plea of no contest to accessory after the fact, and testified on behalf of the prosecution. Wayfer was close friends for many years with Mitchell, Jeffreys, and McFadden. Wayfer had known Hill for about 10 years from "[j]ust hanging around."
On April 11, 2014, Jeffreys, Mitchell, and McFadden were at Wayfer's house in Fairfield until they left for Grande Circle around 5:00 p.m. Wayfer drove Jeffreys and Mitchell in his Cadillac, while McFadden drove his own car, a Lexus. As they arrived, Wayfer recognized Harris and McCray walking on the sidewalk. Hill was standing in the grassy area by the mailboxes. Wayfer and McFadden parked next to each other in the parking lot. Wayfer was wearing a peach-colored hoody, Jeffreys a blue hoody with a University of California Berkeley bear logo.
After parking, Wayfer, Mitchell, and Jeffreys joined Hill and a few other people near the mailboxes. A second group of four or five people, including Harris and McCray, were on the sidewalk across the street, about 50 feet away. Wayfer heard Harris say something to Taaron Bragg, who was in Hill's group, and then lift up his shirt to display a gun. Bragg did not respond.
Mitchell asked to wear Wayfer's peach hoody, and Wayfer removed it and gave it to him. Wayfer testified that he did not see Hill approach Mitchell "close enough to pass anything," nor did he see him do so. After putting on Wayfer's peach hoody, Mitchell walked across the street and behind a fence. Wayfer then heard "[m]ore than 15 or so, or 20" gunshots, including from Harris in the group across the street. Wayfer returned to his car and backed out of the parking lot. As he did, he was approached by Hill, who "walked up to the window and . . . turned around." Wayfer picked up Jeffreys and Mitchell and drove to Vallejo to visit his family. Wayfer testified that nothing was said about the shooting during the drive. 5. Donald Hill
Hill testified on his own behalf. In April of 2014, he had been living on Grande Circle with his girlfriend for about a year and a half. Hill's mother also lived in the complex. On April 11, 2014, Hill was home with his girlfriend and planning to go out when his cousin unexpectedly stopped by. Hill was familiar with several of the people hanging out on Grande Circle. He had known Wayfer for eight or nine years, and saw him every two or three weeks. Hill knew McFadden, Wayfer, Jeffreys, and Mitchell, but they were not close and he did not talk to them before they arrived at Grande Circle that day.
Hill had seen Harris and McCray in the neighborhood, but did not know their names. Shortly after Wayfer, Jeffreys, Mitchell, and McFadden arrived, Hill saw Harris throw up his left hand while keeping his right hand near his hip and heard him say "what's up?" to Bragg in a way that did not "mean anything good." Hill believed that Harris had a gun. After Jeffreys walked away from the mailboxes, Hill walked in the same direction to see if Dante Davis was home, but concluded he was not after seeing that his car was not in his driveway. A black Kia then drove down the street, and Harris and McCray flagged it down. As the Kia turned around, the passenger give Hill "an aggressive look." The Kia parked on the opposite side of the street. Harris kept his hand at his waistband and continued to stare at Bragg.
Mitchell asked for and put on Wayfer's peach hoody. Hill denied giving a gun to Mitchell; instead, he said that Mitchell already had a gun, and that he approached Mitchell, extended his hand, and asked for the gun so he could use it to protect himself. Mitchell did not respond or give Hill the gun, and they walked away from one another. Hill then watched Mitchell walk across the street. He eventually heard gunshots.
Hill then ran to McFadden's car, got in, and "kept asking what happened," but McFadden and Mitchell did not tell him. He denied retrieving a gun from Mitchell in the car.
6 Tonya Neal
Tonya Neal testified that she was in her apartment on Grande Circle when she heard "pops" that she thought were firecrackers. She looked out her window and saw an African-American man with a gun wearing a blue hoody, who the parties did not dispute was Jeffreys, standing next to the rear passenger side of a Lexus. Neal saw Jeffreys get down on one knee behind the Lexus with his right arm extended, firing a gun toward the townhouses across the street. Jeffreys followed three men running with his arm, appearing to track and fire at them as they moved down the street. Neal saw only Jeffreys firing shots; she did not see Mitchell or anyone in a peach hoody.
On cross-examination, Neal testified that "a few minutes" elapsed between the initial "pops" and the next round of gunshots. On redirect, she clarified that it was only "seconds" in between the groups of shots.
When asked whether she was "in a position to see anybody across the street who might have been hit by any bullets," Neal responded: "Well, I seen one kid that did get hit by a bullet because he was going down the street and he fell down right there beside the black car, and I guess they helped him up, and they took off running again. And then he fell down like four or five houses down. Four or five houses down, he fell on the grass."
PROCEDURAL BACKGROUND
By information filed September 15, 2014, the Solano County District Attorney charged Hill, McFadden, Wayfer, and Jeffreys with one count of murder for the death of Tereaun Berry (count 1) (Pen. Code, § 187(a)), and one count of attempted murder for the shooting of Trent Berry (count 2) (Pen. Code, §§ 664/187(a)). Jeffreys and McFadden were tried together between November 17, 2014 and December 17 of 2014, and were found guilty of murder and attempted murder as charged. As noted, Wayfer pled no contest to accessory after the fact to the murder and testified as a witness for the prosecution. Hill's trial began with the prosecution's case on September 16, 2015 and took place over approximately six court days until September 28, 2015. At the end of the trial, the information was amended to allege that Hill committed the attempted murder of Trent Berry willfully and with premeditation and deliberation.
At the time the information was filed, Mitchell remained at large. While this appeal was pending, he was tried for murder and attempted murder and acquitted.
During the preparation of the jury instructions, defense counsel requested that the jury be instructed on the lesser included offense of attempted murder on count 1 with respect to Tereaun Berry, on the theory that the jury could find that Mitchell and Jeffreys were not acting in concert, that Jeffreys had fired the shot that killed Tereaun Berry, and that Hill had aided and abetted only Mitchell, so that Hill was guilty of at most attempted murder. The trial court ultimately declined to give the instruction.
In the afternoon of the second day of deliberations, the jury sent a request to the trial court to the effect of "whether it matters who fired the fatal shot." The trial court responded, over defense counsel's objection, by telling the jury to refer to the previously given standard instructions regarding aiding and abetting liability. Approximately 10 minutes later the jury reached a verdict, finding Hill guilty on both counts and true the special finding that he acted willfully and with premeditation and deliberation with respect to the attempted murder.
On the first day of deliberations, the jury had requested a read back of parts of Hill's testimony.
The request itself is not in the record, but it is paraphrased in various parts of the transcript and in the briefing on Hill's motion for a new trial.
Hill moved for a new trial on the murder count, arguing that the trial court erred in refusing to instruct the jury on the lesser included offense of attempted murder. After a hearing, the trial court denied the motion.
In support of his motion to continue sentencing in order to prepare a motion for a new trial, defense counsel submitted a declaration indicating that "the jury was voting 9 to 3 for not guilty on the murder count prior to the Court's answer to the question but rendered guilty verdicts some 10 minutes later."
The trial court then sentenced Hill to 25 years to life on count 1, and a consecutive term of 15 years to life on count 2, for a total term of 40 years to life. This appeal followed.
DISCUSSION
On appeal, Hill argues with respect to the murder count that the trial court erred in refusing to instruct on the lesser included offense of attempted murder and that the trial court erred by failing to correctly answer the jury's question. With respect to the attempted murder count, he argues that the self-defense, imperfect self-defense, and heat of passion voluntary manslaughter instructions were erroneous because they referred only to the state of mind of the perpetrator and not the defendant. I. The Trial Court Erred in Refusing to Instruct the Jury on the Lesser Included Offense of Attempted Murder on Count One 1. Additional Background
Hill also raises several other challenges to his murder conviction: that the trial court's instructions on self-defense, imperfect self-defense, and heat of passion voluntary manslaughter were erroneous because they referred only to the state of mind of the "perpetrator" and not the defendant; that the instructions on second degree implied malice murder were erroneous because they referred only to the state of mind of the "perpetrator" and not the defendant; that the trial court should have instructed the jury that the doctrine of transferred intent applies to self-defense, imperfect self-defense, and heat of passion voluntary manslaughter; that his claims of instructional error were not waived and if they were, he received ineffective assistance of counsel; and that the cumulative effect of the above errors requires reversal. Because we conclude that the first two errors alleged by Hill require reversal of his murder conviction, we need not reach these additional arguments.
As noted, while preparing the jury instructions, defense counsel requested that the jury be instructed on the lesser included offense of attempted murder with respect to count 1. After a lengthy discussion about whether the instruction was appropriate, the following colloquy took place:
"THE COURT: Right. So let's take one thing at a time. Do you agree to add attempted murder as a lesser included offense of murder?
"MR. TAIRA [prosecutor]: No. I don't think there is anything to support that. The fact that both people were in the back firing at the same time, both left promptly at the same time, is not substantial evidence to warrant such an instruction. It will confuse the jury.
"THE COURT: Well, let's assume that your theory is not bought by the jury. Assuming your theory that Mr. Jeffreys and Mr. Mitchell weren't working together is not agreed upon by the jury, remember Miss Neal testified she saw somebody in blue. She didn't see anybody in red or peach, but, yeah, you could see from the recording. You can see two different heads over there, and it's pretty clear that Mr. Mitchell was involved based on the timing and sequence.
"MR. TAIRA: And absolute [sic] one cluster of shots broken up into two.
"THE COURT: I'm not saying it's a slam dunk theory, but I'm saying that is a theory for which there is some evidence in front of the jury, that if you don't know who shot the fatal bullet and you don't have evidence to show they were helping each other in an aiding abetting situation, and you only have the liability for Mr. Mitchell, in the worst case scenario, it's attempted murder because you don't know who shot him to death. [¶] . . . [¶]
"MR. MAAS [defense counsel]: To be honest here, one real possibility of what could have happened, is that Mr. Mitchell fired off a volley and disappeared by the time Miss Neal sits up to see what she sees. Now she sees Jeffreys take over and sees fatal shots. That is a pretty obvious logical inference for why she never saw Mr. Mitchell. She did not see anybody when the pops first come up. She had to sit up and look out the window, and Mr. Mitchell is gone.
"MR. TAIRA: That is not supported by that. There were six .9's and twelve 40's. The more likely scenarios [sic] is that Mr. Mitchell who [sic] arms we see behind the fence is actually in between the car and the fence, and from Miss Neal's vantage point, she can't see what is going on.
"MR. MAAS: He couldn't be behind the fence. It's impossible. The car is not flush with the back of the fence.
"THE COURT: All right. We will take a look at it. I'm going to look at it some more. I'm kind of inclined to give it to be honest, and people can all argue. Like I said, you can argue how the evidence unfolds. I'm supposed to instruct on anything that the evidence would support."
The next day, the trial court had evidently changed its mind, explaining that it would not give the instruction:
"THE COURT: All right. For purposes of the record, actually, I spent a great deal of time on this particular issue last night and this morning and refreshed my memory about People versus Berrera and People versus Sanchez.
"The People versus Berrera is really actually an unpublished case, so I'm not citing it for the proposition, but I followed its analysis in there in terms of the particulars of this particular case. And the evidence to me is, the overwhelming evidence in this case is that there were two shooters at the same place and that these gunshots were going off.
"One of these shots killed Mr. Berry. We don't know which bullet that hit came out of which gun, and we don't know which person had which gun. You could make certain inferences from where the majority of the cartridges were discharged. From where the cartridges were found, you could probabl[y] make some inferences.
"But in the end, it's clear all the shooting was happening simultaneously, and I think People versus Sanchez, 26 Cal.4th also addresses this analysis, too.
"I recognize that attempted murder is a lesser included, but I also recognize that we have an obligation to give an instruction where the evidence genuinely does not [sic] support that opinion, and based on that, I'm not giving the lesser included for Count 1." 2. Applicable Law
"The trial court has a duty to instruct the jury sua sponte on all lesser included offenses if there is substantial evidence from which a jury can reasonably conclude the defendant committed the lesser, uncharged offense, but not the greater. [Citations]." (People v. Brothers (2015) 236 Cal.App.4th 24, 29; see People v. Breverman (1998) 19 Cal.4th 142, 154-155.) "Substantial evidence is evidence sufficient to 'deserve consideration by the jury,' that is, evidence that a reasonable jury could find persuasive." (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8 (quoting People v. Flannel (1979) 25 Cal.3d 668, 684).) "We review de novo a trial court's failure to instruct on a lesser included offense [citation], and in doing so we view the evidence in the light most favorable to the defendant. [Citation]." (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137.) 3. Analysis
Hill's theory in requesting that the jury be instructed on attempted murder as a lesser included offense with respect to Tereaun Berry was that the evidence permitted the jury to conclude that Hill aided and abetted Mitchell but not Jeffreys, and that it was Jeffreys, and not Mitchell, who had fired the shot that killed Tereaun Berry. Under this theory, Hill was guilty of only attempted murder on count 1.
The People agree that the question is whether there was substantial evidence before the jury to support this theory, but argue that there was not because the "totality" of the evidence "established that Mitchell, Jeffreys, and [Hill] were working in concert," and that there was "no evidence that Mitchell and Jeffreys acted independently." We disagree.
The People do not offer any argument that People v. Sanchez (2001) 26 Cal.4th 834, upon which the trial court appears to have relied, supports its refusal to give an attempted murder instruction here.
The theory on which Hill requested an attempted murder instruction had two factual components. The first was that it was Jeffreys, and not Mitchell, who had fired the shot that killed Tereaun Berry. The second was that Hill had aided and abetted only Mitchell, and not Jeffreys, and that if Mitchell was acting in concert with Jeffreys, Hill did not know that he was doing so. Both of these contentions find support in the record.
a. Substantial Evidence that Jeffreys Fired the Fatal Shot
The evidence at trial established, and the parties do not dispute, that Mitchell and Jeffreys both fired shots from the parking lot at 1955 Grande Circle using two different firearms. Tonya Neal saw Jeffreys firing from the parking lot, and the video evidence showed Mitchell moving behind the fence, arriving at the parking lot just before the shooting began and leaving shortly thereafter. An evidence technician subsequently found twelve .40-caliber shell casings and six 9-mm shell casings in the parking lot, suggesting two shooters using two different guns. Neither gun was recovered. Dr. Josselson, who performed an autopsy on Tereaun Berry and recovered the fatal bullet from his heart, opined that it was "unlikely" that the fatal bullet was fired from a 9-mm, because the bullet did not have a metal jacket, and "[m]ost" 9-mm bullets do have jackets.
There was substantial evidence from which the jury could have concluded that the shots were fired in two groups, the first by Mitchell, and the second by Jeffreys. Tonya Neal testified that she was in her apartment at 1955 Grande Circle when she heard "pops." She looked out her window and saw an African-American man wearing a blue hooded sweatshirt—whom the parties did not dispute was Jeffreys—standing next to the rear passenger side of a Lexus. Neal saw Jeffreys get down on one knee behind the Lexus with his right arm extended, firing a gun at the townhouses across the street. Jeffreys followed three men running with his arm, appearing to track and fire at them as they moved down the street. Neal saw only Jeffreys firing shots; she did not see Mitchell or anyone in a peach hoody. As defense counsel argued, Neal's testimony thus supported an inference that Mitchell fired some of the first few shots, but left before Neal observed Jeffreys out her window.
Trent Berry's testimony likewise supported the view that the shots came in two distinct groupings. He heard "two groups of shots," the first consisting of "like seven," and the second of "a lot more." He was certain that he was hit in the first group of shots, and testified that "I got shot, so I hit the floor first, and once the shots stopped, I ran." The pause between the groups of shots was "[l]ong enough for me to get up and run."
Substantial evidence before the jury also supported the theory that it was Jeffreys who fired the shot that killed Tereaun Berry. When asked whether she was "in a position to see anybody across the street who might have been hit by any bullets," Neal responded: "Well, I seen one kid that did get hit by a bullet because he was going down the street and he fell down right there beside the black car, and I guess they helped him up, and they took off running again. And then he fell down like four or five houses down. Four or five houses down, he fell on the grass." This evidence, together with Josselson's testimony that it was unlikely that Tereaun was killed with a 9-mm, supported a conclusion that Mitchell fired shots initially (the six 9-mm bullets) and then fled before Neal looked out her window, while Jeffreys continued firing (the twelve .40-caliber bullets) and ultimately killed Tereaun Berry, precisely as defense counsel argued in his closing: "So let's go back to Tonya Neal's testimony. She hears pops. She looks up. There is only one person. There are six .9 millimeter casings on the ground. It's probably more consistent with the first pops. And then she sees Jeffreys down on his knee and pop, pop, pop, pop. There are 12 .40 caliber casings on the ground. [¶] If Mr. Mitchell wasn't shooting at any point that Tonya Neal was watching, which would be after the first couple of seconds, she would have seen him. She couldn't have missed him. [¶] And Danny Jeffreys, which I think it's clear, that he killed Tereaun Berry and probably hit Trent Berry. There was no evidence of them getting hit in the first couple of rounds. [¶] Sounds like Mitchell took a few . . . shots and then ran off."
As noted, Trent Berry's own testimony was evidence that he was hit in the first group of shots.
The prosecution disputed this version of events, arguing to the jury that Mitchell had been positioned such that he was out of Neal's view.
b. Substantial Evidence That Hill Aided and Abetted Mitchell but not Jeffreys
There was also a lack of evidence from which a reasonable jury could conclude that Mitchell and Jeffreys were acting in concert, or that Hill knew that they were doing so. As the trial court acknowledged: "Nobody said there was any plans before they arrived there. One could make a different inference from the videotape, but it's up for argument. There was no evidence that those two were working in cooperation." Mitchell and Jeffreys had been hanging out at Wayfer's house before the incident and arrived together at the scene, but there was no evidence of any communication between Hill and Jeffreys, or between Mitchell and Jeffreys. Jeffreys left the group in front of the mailboxes approximately 30 seconds after arriving and over four minutes before the shooting began. Wayfer testified that there was no plan to kill anyone that day, and that he, Mitchell, and Jeffreys had been planning to drive to Vallejo to visit his family, and only went to Grande Circle because McFadden was going. He also testified that nothing was said about the shooting after it took place as he drove Mitchell and Jeffreys to Vallejo afterwards. A reasonable jury certainly could have concluded that Hill aided and abetted only Mitchell, but not Jeffreys. Accordingly, the trial court erred in refusing to instruct the jury on the lesser included offense of attempted murder on count 1.
The People implicitly acknowledge this when they argue that the trial court's response to the jury's question about whether it mattered who fired the fatal shot depended on how the jury found the facts, as we discuss further below.
c. The Error Was Prejudicial
"[A]n erroneous failure to instruct the jury on a lesser included offense is subject to harmless error analysis under People v. Watson (1956) 46 Cal.2d 818, 837, and . . . evidence sufficient to warrant an instruction on a lesser included offense does not necessarily amount to evidence sufficient to create a reasonable probability of a different outcome had the instruction been given. [Citations.]" (People v. Banks (2014) 59 Cal.4th 1113, 1161, abrogated on another ground by People v. Scott (2015) 61 Cal.4th 363, 386-387.) " 'Under the Watson standard, prejudicial error is shown where " ' "after an examination of the entire cause, including the evidence," [the reviewing court] is of the "opinion" that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error.' [Citation.] 'We have made clear that a "probability" in this context does not mean more likely than not, but merely a reasonable chance, more than an abstract possibility.' [Citation.]" ' [Citation.]" (People v. Wilkins (2013) 56 Cal.4th 333, 351.)
We cannot agree with the People that any error was harmless. The jury's guilty verdicts indicate it concluded that Hill handed Mitchell a gun just before the shooting took place, so the remaining critical issues were who had fired the shot that killed Tereaun Berry and whether Hill could be responsible for the actions of Mitchell or Jeffreys as an aider and abettor. As discussed, the evidence that Hill, Mitchell, and Jeffreys were acting in concert was far from overwhelming. There was no direct evidence of any plans or communication between Jeffreys and Hill or Mitchell, either before their arrival at Grande Circle or in the lead up to the shooting, and the conclusion that they were acting in concert depended almost entirely on inferences to be drawn from the video footage. That the jury asked for a read back of Hill's testimony and asked a question of the trial court indicates the case was close. (See People v. Pearch (1991) 229 Cal.App.3d 1282, 1295 ["Juror questions and requests to have testimony reread are indications the deliberations were close"].) Under these circumstances, we conclude that had the jury been instructed on attempted murder as a lesser included offense on count 1, there is a reasonable chance that the result would have been different. Hill's conviction on count 1 must be reversed.
Typically, the People would have the option of retrying Hill or accepting a modification of the judgment to reflect a conviction for attempted murder on count 1. (See People v. Racy (2007) 148 Cal.App.4th 1327, 1336 [" 'When a greater offense must be reversed, but a lesser included offense could be affirmed,' the People have the 'option of retrying the greater offense, or accepting a reduction to the lesser offense' " (quoting People v. Kelly (1992) 1 Cal.4th 495, 528)]; People v. Millbrook, supra, 222 Cal.App.4th at p. 1151.) However, we conclude that the murder conviction must be reversed for a second reason, as we now discuss. II. The Trial Court Erred in Responding to the Jury's Question
Hill's next argument is the trial court committed prejudicial error in its response to the jury's question regarding whether it mattered who fired the fatal shot. 1. Additional Background
As discussed above, in the afternoon of the second day of deliberations, the jury submitted a request to the trial court containing a question to the effect of "whether it matters who fired the fatal shot." The trial court brought counsel into court, and the following discussion took place:
"THE COURT: [¶] . . . [¶] I did ask my staff to give you a copy of the jurors' request. I am really not surprised. I saw this issue coming based upon some of our discussion regarding the evidence and the instructions and what might happen and what closing arguments might ensue. [¶] I think that the only instruction, only response I can give is to refer them back to the aider and abettor instruction. I think it's—[¶] . . . [¶] 401. I think that is the only answer I could give them.
"MR. MAAS [defense counsel]: I would ask the Court to answer as follows: Answer the question, 'Yes.' Please review Instruction 401 for further direction.
"THE COURT: I'm not saying, 'Yes.'
"MR. MAAS: I'm making that request.
"THE COURT: I'm not going to say that.
"MR. MAAS: I want to make the record. I do think that that is what should be done.
"THE COURT: I'm not doing that. I'm not going to give them any answer other than referring them back to the instruction and not make any factual determination.
"MR. TAIRA [prosecutor]: Could the Court also refer them to, I think it's 400?
"THE COURT: Yes, I think that is fine, 400 and 401. Those are the two instructions that pertain to aider and abettor liability. [¶] The only thing I'm going to do is, 'The Court refers you to Instruction Nos. 400 and 401.['] That is what I will provide, but you did make your request. [¶] Anything further on this?
Instruction number 400 provided: "A person may be guilty of a crime in two ways. One, he or she may have directly committed the crime. I will call that person the perpetrator. Two, he or she may have aided and abetted a perpetrator, who directly committed the crime. A person is guilty of a crime whether he or she committed it personally or aided and abetted the perpetrator."
Instruction number 401 provided: "To prove that the defendant is guilty of a crime based on aiding and abetting that crime, the People must prove that: [¶] 1. The perpetrator committed the crime; [¶] 2. The defendant knew that the perpetrator intended to commit the crime; [¶] 3. Before or during the commission of the crime, the defendant intended to aid and abet the perpetrator in committing the crime; [¶] AND [¶] 4. The defendant's words or conduct did in fact aid and abet the perpetrator's commission of the crime. [¶] Someone aids and abets a crime if he or she knows of the perpetrator's unlawful purpose and he or she specifically intends to, and does in fact, aid, facilitate, promote, encourage, or instigate the perpetrator's commission of that crime. [¶] If all of these requirements are proved, the defendant does not need to actually have been present when the crime was committed to be guilty as an aider and abettor. [¶] If you conclude that defendant was present at the scene of the crime or failed to prevent the crime, you may consider that fact in determining whether the defendant was an aider and abettor. However, the fact that a person is present at the scene of a crime or fails to prevent the crime does not, by itself, make him or her an aider and abettor."
"MR. TAIRA: No, your Honor.
"MR. MAAS: Just briefly, I understand the Court is denying my request, but if the Court isn't making a factual determination, would the Court give a legal determination?
"THE COURT: I'm not going to tell them what matters and what doesn't matter. That is not the province of the Court. It's the province for the jury to find what matters and what doesn't matter, but I can refer them to the two instructions and the law that applies in this case. [¶] Candidly, I'm not terribly surprised that the jury struggled with these issues. One of the things we talked about and the defense asked for, requested an instruction on attempted murder, and I declined that based on this whole theory that who is identifying who that made the fatal shot. [¶] I think I mentioned People versus Brothers, an unpublished decision, which talks about the one fatal shot and determining who actually shot it, that's the reason I didn't give the attempted murder instruction. It's an area, quite frankly, that is very vague without relying on something that involves a natural and probabl[e] consequences instruction and then instructing about the specific intent in aider and abettor. So I am not terribly surprised that this question came up. [¶] Long story short, that is what I am going to do."
Approximately ten minutes later, the jury announced that it had reached a verdict, finding Hill guilty on both counts and the premeditation and deliberation allegation true with respect to count 2. 2. Applicable Law
Penal Code section 1138 provides that when the jury "desire to be informed on any point of law arising in the case" "the information required must be given." "Section 1138 . . . thereby creates a ' "mandatory" duty to clear up any instructional confusion expressed by the jury.' " (People v. Loza (2012) 207 Cal.App.4th 332, 355 (Loza) (quoting People v. Gonzalez (1990) 51 Cal.3d 1179, 1212.) "This does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information. [Citation.] Indeed, comments diverging from the standard are often risky. . . . But a court must do more than figuratively throw up its hands and tell the jury it cannot help. It must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given." (People v. Beardslee (1991) 53 Cal.3d 68, 97.) 3. Analysis
On appeal, the parties agree that the correct answer to the jury's question depended on whether the jury found that Hill aided and abetted both Mitchell and Jeffreys (in which case the answer was no), or Mitchell only (in which case the answer was yes). As the People put it: "If the jury concluded that [Hill] aided only Mitchell, and that Mitchell was not working in concert with Jeffreys, then the answer to the jury's question would have been 'yes,' in fact it did matter who fired the fatal shot. However, if the jury concluded that [Hill] aided and abetted both Mitchell and Jeffreys, who were working in concert, then the answer to the question would have been 'no,' in fact it did not matter who fired the fatal shot." The People argue that because this was not a "purely legal question," but rather one in which "the facts and law were intertwined" "a 'yes' or 'no' answer would have been incorrect," and thus that the trial court's response to the jury's question was proper. We disagree—the trial court's "mandatory" obligation under Penal Code section 1138 to "clear up any instructional confusion expressed by the jury" required more. (Loza, supra, 207 Cal.App.4th at p. 355.)
Hill offers a similar formulation, suggesting that the trial court could have instructed the jury, after answering "yes": "If you find that Hill intended to assist both Mitchell and Jeffreys in shooting the other men, then it does not make any difference which of the two men fired the fatal shots. However, if you find that Hill intended to assist Mitchell only, and that Hill did not intend to assist Jeffreys, and that Hill did not know that Mitchell intended to assist Jeffreys, then it may matter which of the two men fired the fatal and wounding shots. That is because Hill cannot be convicted of aiding and abetting Jeffreys unless Hill intended to aid and abet Jeffreys."
There was no dispute that there were (at most) two perpetrators of the crimes alleged, and Hill was alleged to have directly assisted only one of them. As discussed above, the testimony of Tonya Neal suggested that it was Jeffreys who fired the fatal shot, and the People concede that "the evidence did not establish that Mitchell's shots struck anyone." One critical legal issue before the jury was thus whether and how Hill's alleged assistance of Mitchell could translate into criminal liability for the actions of Jeffreys. Although the yes or no answer to the question as posed did depend on how the jury found the facts, the question itself made clear that—as the trial court had predicted—the jury was confused with respect to this underlying legal issue. We thus cannot agree, as the People contend, that the jury's question had " 'nothing to do with the law, but with a fact.' " (People v. Payton (1992) 3 Cal.4th 1050, 1068.)
Nor do we agree with the People that the explanation ultimately provided by the trial court was sufficient. The aiding and abetting instructions only made reference to a single "perpetrator," and thus contained no explanation whatsoever of the import of the question whether Mitchell and Jeffreys were working in concert. More importantly, even if the instructions as given and the arguments of the parties were adequate explanation, the jury's question made clear that they nevertheless remained confused about this issue as they deliberated.
Loza, supra, 207 Cal.App.4th 332 is instructive. In Loza, the then-standard instruction given to the jury on aiding and abetting stated that "[a] person is equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator." (Id. at p. 348.) During deliberations, the jury asked: " 'Concerning aiding ＋ abetting does the state of mind of the aider and abettor need/should be considered? If the person aids and abets because they are worried about an attack from the perp[e]trator does tha[t] make a difference when considering the degrees of murder[?]' " (Id. at p. 349.) The trial court and counsel for both sides ultimately agreed to respond with: " ' "You must apply the evidence to the law as you have been instructed," ' " and the jury returned a guilty verdict. (Ibid.) Although the instruction as given was "generally accurate," the Court of Appeal found that it was misleading in that case because there were facts from which the jury could conclude that the defendant had a less culpable mental state than the perpetrator, and thus was guilty of a lesser offense. (Id. at p. 350.) The court concluded that defense counsel had been ineffective in failing to object to the trial court's response because the trial court had an obligation under Penal Code section 1138 to " ' "clear up any instructional confusion expressed by the jury," ' " and "[b]ecause it was clear from the jury's questions that the instructions that the court had already given had left the jurors confused, it was not enough for the court to inform the jurors, in response to their specific inquiry, that they must rely on the very instructions that had confused them." (Loza at p. 355.)
So too here. Although the instructions as given were generally accurate, and defense counsel's closing argument in particular should have clarified the issue, the jury's question made clear that they nonetheless were confused regarding aiding and abetting liability with respect to two perpetrators at issue. Thus, "it was not enough for the court to inform the jurors, in response to their specific inquiry, that they must rely on" the aiding and abetting instructions they had already been given. (Loza, supra, 207 Cal.App.4th at p. 355; see People v. Nero (2010) 181 Cal.App.4th 504, 518 [rereading instruction in response to jury's question was error even where instructions "suggest" that aider and abettor's mental state not tied to that of perpetrator]; People v. Gonzalez (1999) 74 Cal.App.4th 382, 390-391 [rereading instructions already given in response to jury question constituted error where instructions "inadequate" to respond to jury's confusion], disapproved on another ground in People v. Anderson (2011) 51 Cal.4th 989, 997-998 & fn. 3.) We conclude that the trial court's response was error.
The People make two forfeiture arguments. One is that the trial court had no duty to give a pinpoint instruction similar to the one discussed above because neither party requested it. We are not persuaded. The duty to craft further instructions arose from Penal Code section 1138 and the jury's confusion as evidenced by their question, and thus the cases cited by the People for the general proposition that a trial court has no duty to craft pinpoint instructions absent a request from a party are inapposite. (See People v. Lang (1989) 49 Cal.3d 991, 1024, disapproved on another ground in People v. Diaz (2015) 60 Cal.4th 1176, 1190; People v. Rogers (2006) 39 Cal.4th 826, 877-878.)
Next, the People argue that because defense counsel requested that the trial court answer the jury's question "Yes" and refer them to instruction 401, Hill cannot now complain that it was error for the trial court to refer them to that very instruction. Waiver does not reach quite so far. "At its furthest reach the rule has been held to justify a forfeiture where defense counsel sat mute while the court provided a response later challenged on appeal." (People v. Ross (2007) 155 Cal.App.4th 1033, 1048; see People v. Dykes (2009) 46 Cal.4th 731, 800-802.) That is not the case before us: as noted, defense counsel expressly objected to the trial court's response. The fact that the alternative response defense counsel requested is not fully accurate, or that Hill argues on appeal that a different and more complicated response would have been appropriate, does not render his objection meaningless and forfeit his right to challenge the response that the trial court did provide. "That further guidance may not come easily to hand, or is not supplied by counsel, does not excuse the court from its statutory duty. Reluctance to 'strike out on its own' does not permit the court to 'figuratively throw up its hands and tell the jury it cannot help.' " (People v. Ross, supra, at pp. 1047-1048 (quoting People v. Beardslee, supra, 53 Cal.3d at p. 97).) 4. The Trial Court's Error Was Prejudicial
A trial court's failure under Penal Code section 1138 to adequately answer a jury's question is subject to the prejudice standard of People v. Watson, supra, 46 Cal.2d at p. 836, i.e., whether the error resulted in a reasonable probability of a less favorable outcome. (People v. Lua (2017) 10 Cal.App.5th 1004, 1017 (citing People v. Roberts (1992) 2 Cal.4th 271, 326).) " 'In this context, "reasonable probability" means " 'merely a reasonable chance, more than an abstract possibility.' " ' " (People v. Hodges (2013) 213 Cal.App.4th 531, 539 (quoting People v. Eid (2010) 187 Cal.App.4th 859, 882).)
We find more than an " ' "abstract possibility" ' " that had the jury's question been answered correctly, Hill would have obtained a more favorable verdict, for the same reasons discussed above in connection with the requested instruction on attempted murder. There was substantial evidence that it was Jeffreys who fired the fatal shot, and the jury could have concluded that Hill aided and abetted only Mitchell, and not Jeffreys. Given the jury's question, there is more than an abstract possibility that the jury may have nevertheless found Hill guilty on the murder count on the erroneous assumption that it did not matter who fired the fatal shot. Accordingly, Hill's murder conviction must be reversed. III. The Jury Was Properly Instructed with Respect to the Attempted Murder Charge
Hill also argues that the trial court erred in instructing the jury with respect to the attempted murder of Trent Berry. In particular, he argues that because the instructions on self-defense, imperfect self-defense, and heat of passion voluntary manslaughter made reference to the mental state of the "perpetrator" and not the "defendant," they improperly failed to inform the jury that Hill's state of mind had to be considered separately from the state of mind of either Mitchell or Jeffreys. (See People v. McCoy (2001) 25 Cal.4th 1111, 1118-1119 [" '[A]lthough joint participants in a crime are tied to a "single and common actus reus," "the individual mentes reae or levels of guilt of the joint participants are permitted to float free and are not tied to each other in any way" ' "].)
The instruction on self-defense provided, in relevant part: "The defendant is not guilty of murder or its lesser included offense or attempted murder and its lesser included offenses if the perpetrator(s) was justified in attempting to kill someone in self-defense or defense of another. A perpetrator acts in lawful self-defense or defense of another if: [¶] 1. A perpetrator reasonably believed that he or someone else was in imminent danger of being killed or suffering great bodily injury. [¶] 2. A perpetrator reasonably believed that the immediate use of deadly force was necessary to defend against that danger. [¶] AND [¶] 3. A perpetrator used no more force than was reasonably necessary to defend against that danger. [¶] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. A perpetrator must have believed there was imminent danger of death or great bodily injury to himself or someone else. A perpetrator's belief must have been reasonable and he must have acted only because of that belief. A person acting in self-defense is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If a perpetrator used more force than was reasonable, the murder and its lesser included offense and/or the attempted murder and its lesser included offense was not justified. [¶] When deciding whether a perpetrator's beliefs were reasonable, consider all the circumstances as they were known to and appeared to the perpetrator(s) and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the perpetrator(s) beliefs were reasonable, the danger does not need to have actually existed. [¶] . . . [¶] If the People have not met this burden, you must find the defendant not guilty of murder and its lesser offense and/or attempted murder and its lesser offense."
The instruction on imperfect self-defense provided, in relevant part: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the perpetrator killed a person because he acted in imperfect self-defense or imperfect defense of another. [¶] If you conclude the perpetrator acted in complete self-defense or defense of another, his action was lawful and you must find him not guilty of any crime. The difference between complete self-defense or defense of another and imperfect self-defense or imperfect defense of another depends on whether the perpetrator's belief in the need to use deadly force was reasonable. [¶] The perpetrator acted in imperfect self-defense or imperfect defense of another if: [¶] 1. The perpetrator actually believed that he or someone else was in imminent danger of being killed or suffering great bodily injury; [¶] AND [¶] 2. The perpetrator actually believed that the immediate use of deadly force was necessary to defend against the danger; [¶] BUT [¶] 3. At least one of those beliefs was unreasonable. [¶] . . . [¶] In evaluating the perpetrator's beliefs, consider all the circumstances as they were known and appeared to the perpetrator. [¶] . . . [¶] The People have the burden of proving beyond a reasonable doubt that the perpetrator was not acting in imperfect self-defense or imperfect defense of another. If the People have not met this burden, you must find the defendant not guilty of murder."
The instruction on heat of passion voluntary manslaughter provided, in relevant part: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the perpetrator(s) killed someone because of a sudden quarrel or in the heat of passion. [¶] A perpetrator killed someone because of a sudden quarrel or in the heat of passion if: [¶] 1. The perpetrator was provoked; [¶] 2. As a result of the provocation, the perpetrator acted rashly and under the influence of intense emotion that obscured his reasoning or judgment; [¶] AND [¶] 3. The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. [¶] . . . [¶] In order for heat of passion to reduce a murder to voluntary manslaughter, the perpetrator must have acted under the direct and immediate influence of provocation as I have defined it. . . . [¶] It is not enough that the perpetrator simply was provoked. The perpetrator is not allowed to set up his own standard of conduct. In deciding whether the provocation was sufficient, consider whether a person of average disposition, in the same situation and knowing the same facts, would have reacted from passion rather than from judgment. [¶] The People have the burden of proving beyond a reasonable doubt that the perpetrator did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder."
Hill's trial counsel did not object to the instructions at issue, and in fact, expressly suggested the use of defendant and perpetrator that he now challenges on appeal. Generally, " '[a] party may not complain on appeal that an instruction correct in law and responsive to the evidence was too general or incomplete unless the party has requested appropriate clarifying or amplifying language.' " (People v. Hart (1999) 20 Cal.4th 546, 622; People v. Guerra (2006) 37 Cal.4th 1067, 1134.) However, Hill argues that his claims are cognizable on appeal because the trial court had a sua sponte duty to give the instructions correctly and that we should review for prejudice under the "harmless beyond a reasonable doubt" standard of Chapman v. California (1967) 386 U.S. 18. Even assuming that the jury misunderstood the instructions as Hill suggests and that Hill has not forfeited this argument, we find that the alleged error was harmless beyond a reasonable doubt.
With respect to the instruction on self-defense (CALCRIM No. 505): "MR. MAAS [defense counsel]: Right. I think I was actually just still thinking about 505. I think there should be internal consistency between these instructions. They are both talking about the same concept, so I don't think a perpetrator is wrong, but then 505 should probably say the defendant is not guilty of the murder if the perpetrator or perpetrators were justified in attempted to kill. [¶] THE COURT: I'm okay with that, too. That would be a lot easier to read."
Hill argues in the alternative that his trial counsel was ineffective in failing to request modification of the instructions. Because we conclude that the alleged error was harmless beyond a reasonable doubt, he has likewise failed to demonstrate a reasonable probability of a different result under Strickland v. Washington (1984) 466 U.S. 668. (See People v. Fiu (2008) 165 Cal.App.4th 360, 378.)
With respect to self-defense and imperfect self-defense, Hill's theory of prejudice on appeal is that he may have had the requisite mental state for self-defense or imperfect self-defense at the time he handed Mitchell the gun, but that by the time Mitchell and Jeffreys began firing a few minutes later, there was "less evidence of imminent danger" and accordingly "Mitchell and Jeffreys had a lesser right to exercise complete self-defense or imperfect self-defense." Similarly with respect to heat of passion voluntary manslaughter, Hill argues that he had a "strong case for acting in the heat of passion, while the perpetrators had a far weaker case" based on Harris's hostile gestures. Because, according to Hill, the instructions erroneously prevented the jury from considering his individual mental state at the time he handed Mitchell the gun and instead focused the jury on the mental states of Mitchell and Jeffreys at the time of the shooting, the alleged instructional error resulted in a less favorable verdict.
Hill's own testimony was the only evidence of his mental state at trial, as follows: Shortly after Mitchell, Jeffreys, and the others arrived, Hill saw Harris raise his left hand above his head and put his right hand at his waist line, in a way that was "aggressive" and did not "mean anything good," directed at Taaron Bragg. Hill did not take Harris's gesturing "personally." Although Hill did not see Harris with a gun, he believed he had one based on the "way he was acting." Harris's gesturing was "a concern" and made Hill "[m]ore alert" such that he "was watching and trying to make sure nothing happened." After the Kia arrived and its passengers joined Harris and McCray, Harris again made gestures directed at Bragg and appeared to be "staring him down." Hill denied handing Mitchell a gun, but testified instead that he asked for Mitchell's gun, because he "wanted to protect [him]self." Mitchell did not respond, but instead walked away toward the fence across the street. Hill did not "know where he was going" and did not "know what he went over there for."
As the trial court put it, "the evidence is a stretch for self-defense in this case." Nothing in Hill's testimony suggests that he believed an attack from Harris was "imminent" or that deadly force was necessary to defend against it, as required for either self-defense or imperfect self-defense. Nor would any such belief have been reasonable under the circumstances. Instead, Hill was "concern[ed]," "[m]ore alert," and "watching and trying to make sure nothing happened." Nor did anything about Hill's testimony suggest that he was provoked or acted rashly or under the influence of intense emotion so as to support a finding of heat of passion voluntary manslaughter. To the contrary, Hill twice testified that he understood Harris's gestures to be directed at Bragg, and that he did not take them "personally." Rather than testify that he gave Mitchell a gun for self-defense or in a heat of passion, Hill denied having done so at all. Last but not least, we can infer from the jury's guilty verdicts that they did not find Hill's testimony that he did not hand Mitchell a gun credible, which suggests that they did not find the balance of his testimony regarding his state of mind credible either. Under these circumstances, we find no prejudice from the alleged instructional error under either the "reasonable probabilit[y]" standard of People v. Watson or the "harmless beyond a reasonable doubt" standard of Chapman v. California.
DISPOSITION
Hill's conviction for the murder of Tereaun Berry is reversed. His conviction for the attempted murder of Trent Berry is affirmed. The People may retry Hill on the murder charge within the time limit set forth in Penal Code section 1382. If the People elect not to do so, the judgment shall be modified to reflect his conviction for attempted murder only, and the trial court shall resentence him accordingly. As so modified, the judgment is affirmed.
/s/_________
Richman, J.
We concur:
/s/_________
Kline, P.J.
/s/_________
Stewart, J.