Opinion
A146386
06-21-2017
THE PEOPLE, Plaintiff and Respondent, v. DANIELA GUZMAN, Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. H53333C)
Daniela Guzman was convicted of second degree murder and conspiracy to commit assault, a lesser included offense of conspiracy to commit murder, for her role in the 2010 death of Justice Afoa. The jury also found true the allegations that she committed both crimes for the benefit of a criminal street gang. The trial court sentenced her to 15 years to life in prison for the murder and stayed the remaining sentences.
Guzman was convicted under Penal Code sections 187, subdivision (a) (murder) and 182 (conspiracy), and the enhancement allegations were found true under Penal Code section 186.22, subdivision (b). All further statutory references are to the Penal Code.
Guzman's half brother, Rafael Tovar, and his fellow gang member, Daniel Howard, were also convicted in earlier trials of murdering Afoa. Based on a special jury instruction here that recognized Guzman was not "the actual killer," the only theories on which the jury could have convicted her of second degree murder were that she either aided and abetted or conspired to commit "an assault, the natural and probable consequence of which was the murder of the victim." On appeal, her sole claim is that her murder conviction must be reversed because the trial court erred by not instructing the jury on involuntary manslaughter as a lesser included offense of murder, as there was substantial evidence either "that Afoa's death was not a natural and probable consequence of the assault [she] conspired to commit or that [she] was unaware that such an assault was dangerous to Afoa's life." We affirm.
Both Tovar and Howard were convicted of first degree murder and conspiracy to commit murder in connection with Afoa's death. We affirmed Tovar's convictions in a recent published opinion (People v. Tovar (2017) 10 Cal.App.5th 750) and reversed Howard's convictions based on instructional errors in a previous nonpublished opinion (People v. Howard (Nov. 30, 2015, A139179)), although we upheld his other convictions for unrelated offenses.
I.
FACTS
A. Guzman's Family and Social Circle.
In the fall of 2010, 17-year-old Guzman lived with her parents, younger sister, and Tovar in her parents' house in Newark. Tovar, who was 29 years old and a self-admitted member of FMT (Fremont Mexican Territory), a Norteño gang, had begun living at the house two years earlier after being released from prison. Guzman and Tovar did not have "much of a relationship" while Guzman was young, but they became closer once he moved in with the family.
Tovar's best friend was Howard, whom Tovar had known since childhood. Howard spent a significant amount of time at Tovar and Guzman's home, and Guzman considered him to be like a brother. Howard had been or still was a member of FMT, but Guzman, who testified in her own defense at trial, claimed that although she knew that Howard had spent time in prison, she was not aware of his gang involvement.
That fall, Guzman was a senior at Newark Memorial High School. She was on several sports teams and described herself as "[v]ery social" and popular. She was best friends with Daniel R., a teammate on the school's softball team, and the girls primarily hung out with members of the school's football team and other "jocks." At the time, members of the football team were involved in an ongoing conflict with other students who were Norteño gang members.
B. Members of the Football Team Assault Tovar.
In mid-September 2010, Guzman, Daniel R., and members of the Newark Memorial football team, including Afoa, attended a sweet 16 party at a facility in Newark. During the party, a fight broke out between two other girls and evolved into a fight between the football players and some Norteño gang members who were also in attendance.
Guzman and Daniel R. returned to Guzman's house after the party but soon left to see if they could find one of the girls who had started the fight. Meanwhile, at Guzman's invitation, Afoa and other members of the football team arrived at her house. Tovar, who was drunk, came outside and began yelling at a football player who had previously dated Guzman, because Tovar was angry about how the ex-boyfriend had treated her during the relationship. After Tovar moved to attack Guzman's ex-boyfriend, Afoa attempted to break up the fight, but Tovar became "irritated" and eventually punched Afoa in the face. Afoa then punched him back, and other football players "jumped on" Tovar. When Guzman and Daniel R. returned to Guzman's house about 20 minutes later, Tovar was lying in the driveway "unconscious and bleeding." Some neighbors came outside and told Guzman, who was "frantic," that a "Samoan guy with big hair" had assaulted her brother.
Tovar was transported to the hospital. According to Daniel R., Guzman did not go to the hospital with him because she said she was going to go find whoever was responsible for beating up her brother. Daniel R. testified that as Guzman was preparing to leave she was holding "a nail file or . . . small knife," and Daniel R. took it away because she was afraid Guzman "was going to do something crazy." Guzman denied having a weapon, however, testifying that she had merely gone to her ex-boyfriend's house and argued with her ex-boyfriend because she thought he was involved.
C. Guzman Seeks Revenge Against Afoa.
1. The assault's immediate aftermath.
The day after Tovar's beating, Guzman was at a gathering where she asked several other girls whether they knew the addresses of Afoa and two of the other football players who had fought Tovar. Guzman said she was asking because the police wanted to know the boys' addresses, but at least one other girl did not believe that was the reason she wanted the information. Guzman also tried to get Afoa's information through Daniel R., who refused to help her.
Meanwhile, Tovar, who also testified for the defense at trial, was aware that while he was in the hospital fellow gang members, including Howard, held a meeting to discuss retaliating for the assault. Tovar claimed that when he heard about their plan, he told them not to retaliate because he would be the prime suspect if they did. Tovar claimed that he intended to retaliate on his own but never disclosed his plan to Howard or Guzman.
The prosecution played a recording of a telephone call during which Tovar and Guzman discussed retaliating for the assault with a cousin of theirs in prison who was also a Norteño gang member, but the official transcript of that call is not in the record before us.
One of the football players in the group who beat up Tovar agreed that there was "a lot of tension" between the football players and Guzman after the incident. Guzman testified that she "could just feel the animosity" and believed the players were angry with her because she was upset about her brother being attacked. Daniel R. testified that most of the tension was between Guzman and Afoa, who "tried to avoid her." Guzman admitted to arguing with Afoa about the role he had played in Tovar's beating. She said she felt "confused" because she had heard that Afoa had tried to break up the fight, but then Afoa bragged about being responsible for beating up her brother. Guzman testified that she started skipping school and fell into "a severe depression" as a result of the fallout from the assault.
2. Guzman coordinates with Howard.
About a week after the assault on Tovar, Daniel R. went to Guzman's house. Tovar and Howard were there. After the girls left the house, Guzman told Daniel R. that the men had been talking about what was going to happen "[t]o Justice and whoever." According to Daniel R., Guzman indicated that she and Howard were going to be responsible for retaliating and that Tovar was not going to participate because he would be the obvious suspect. Soon afterward, Daniel R. saw Guzman in Howard's car, and other students said Guzman had been "riding around the school" looking for Afoa. Guzman denied that any of this occurred.
In early October 2010, on the same night as a Newark Memorial football game, Howard and Guzman exchanged text messages. Howard texted Guzman, " 'Give me updates on your movements and when you guys are leaving, so I can coordinate. What time about is the game[] over?' " After Guzman estimated when the game would end, Howard responded, " 'Where are you going, Fremont or UC? Also, what's he wearing? Let me know ASAP.' " Guzman texted back, " 'Zig zagged jacket with red, green[,] and black, some white in the front. It's striped. Grey cargo . . . shorts and black high socks and a red hat. Hair pulled back in a . . . ponytail. . . . Jordan's[.]' " Guzman also sent text messages appearing to indicate that she was at an In-N-Out Burger restaurant in Fremont. Howard eventually responded, " 'Only one red hat I seen, white boy with a black sweatshirt on. You in Fremont? I seen [Guzman's younger sister] I think. . . . You still there?' " Guzman responded, " 'Yeah, where you at?' "
For the sake of simplicity, we assume that the person to whom a cell phone was registered was the person using it, though we recognize that cell phone records do not definitively establish who used a phone at any given time.
The prosecution introduced the exact text messages that were sent during this and other exchanges, but the official exhibits are not in the record before us. Instead, we quote from the testimony of the former Newark police detective who read the text messages at trial.
A few weeks later, on the same night as another Newark Memorial football game, Howard and Guzman again exchanged text messages. Howard texted, " 'Make sure you're giving me updates, okay?' " Guzman agreed, and she then sent a text message saying, " 'Justice big dark ass is wearing a black sweater with his hair pulled back in a ponytail with light jeans.' " Howard asked, " 'What color jeans? What else, shoes, socks, hairband?' " After Guzman responded with additional details about Afoa's appearance, Howard texted, " 'Let me know where you're going ASAP.' " Guzman suggested that she was going to In-N-Out Burger or another restaurant nearby, but she then texted, " 'Don't come. We lost the game and the guys are not gonna come.' "
Guzman claimed she and Howard exchanged text messages on these two occasions because Afoa had threatened her. She wanted Howard to know where she was because she was worried about being targeted, and she did not feel comfortable discussing the situation with Tovar. She testified that there was no plan for Howard to attack Afoa and that, at most, she wanted Howard to show up and tell Afoa to leave her alone. She later admitted to the police, however, that she thought Howard was "probably gonna fight [Afoa] or something" to retaliate for the assault on Tovar because Howard told her, "I'll take care of it."
3. The Halloween party.
The night before Halloween 2010, a Newark Memorial student held a party in his garage for other students. Guzman, Daniel R., and several football players, including Afoa, all attended. At one point earlier on in the night, Guzman sent a text message to Howard that said, " 'Justice is at a party that I'm at right now.' " Howard did not respond. Guzman later told the police that she sent this text message to Howard because she was seeking guidance about whether she should leave.
Soon after Guzman and Daniel R. arrived at the party, two men whom Guzman said were her cousins and appeared to be in their twenties showed up and began "throwing up their gang sign and saying where they're from," indicating to Daniel R. that they were Norteño gang members. The football players present did not do anything, but "the vibe of the room became very tense and awkward," and Guzman eventually told the two men to go outside after Daniel R. urged her to do so.
A fight then began outside. Daniel R. exited the garage and saw Afoa, who seemed "frantic" and "scared." He said to her, " 'Danni, that bitch tried to stab me. That bitch tried to stab me,' " but Daniel R. did not know whom he meant. Several people began yelling at Guzman, and Guzman yelled back, " 'It wasn't me. It was my cousins. Fuck you.' " Daniel R. heard Afoa tell Guzman that he was going to get his girlfriend "to whoop [Guzman's] ass," and Guzman claimed that at one point, one of the other football players punched her in the back of her head.
It turned out that a different student at the party had been stabbed and seriously wounded. A friend of Afoa's picked up Afoa after the party, and they both went to the hospital where the other student had been taken. While the two boys were outside the hospital, Guzman arrived, and she and Afoa began "screaming" at each other. Afoa's friend testified that Guzman addressed them and angrily said, " 'You're going to get it.' " Guzman admitted to arguing with Afoa at the hospital but claimed that he had threatened her, not the other way around. She also testified that Afoa hit her while they were at the hospital.
Daniel R. testified that later that night she asked whether Guzman had set up the attack on Afoa, and Guzman denied it. Daniel R. then asked how Guzman's cousins had known who Afoa was. Guzman eventually responded, " 'You my girl. You know I love you, but my family told me when I see him, to make that call,' " effectively admitting that she had called to inform the men of Afoa's presence after she saw Afoa at the party.
Later that night, Guzman and Daniel R. also exchanged text messages about the attack at the Halloween party. Guzman texted, " 'I'm not afraid of getting hurt. I swear I'll lie till I die tho, and I just need to know you got my back.' " Daniel R. responded, " 'I got you, but those are my brothers, Dee, but I got you.' " Guzman texted back, " 'Them niggas was my brothers too, until they fucked with my brother. Just have my back Danni. I trust you.' " After Daniel R. pointed out that the student who had been stabbed had not done anything, Guzman responded, " 'It wasn't supposed to go down like that.' " Daniel R. urged Guzman to " 'think about shit' " because Guzman had " 'put innocent people in danger,' " and Guzman said, " 'It was only Justice outside. Nobody else was out there. I know I fucked up, but he asked me straight up and I wasn't gonna lie.' "
Guzman later told the police that one of her cousins, Anthony Bernal, a Norteño gang member from Newark, was responsible for attacking Afoa that night. At trial, she denied asking Bernal or the other man to come to the party, although she did admit that she had told Bernal that Afoa was outside. She claimed that she believed that at most Bernal might confront Afoa and did not believe weapons would be involved. Guzman originally admitted to the police that she set up Afoa to be attacked at the Halloween party because he had bragged at school about beating up Tovar and had said that Guzman "was next." In a later police interview, however, Guzman denied arranging the attack.
Daniel R. testified that Guzman later told her that Bernal and the other man "messed up, because they got the wrong one. Justice is just lucky he's still alive." According to Daniel R., Guzman also said, " 'Justice is going to die. . . . [¶] . . . It may not be today or tomorrow, but he is going to die.' " Guzman told Daniel R. that she was focused on retaliating against Afoa instead of her ex-boyfriend because the ex-boyfriend "live[d] with a bunch of babies, his nieces and nephews, and she didn't want to put them in danger."
4. Guzman's continuing anger toward Afoa.
After the Halloween party, Daniel R. began to distance herself from Guzman and tried not to be seen with her at school. During one exchange of text messages between the girls, Daniel R. said she was still upset about the Halloween party, and Guzman responded, " 'Shit shouldn't have gone down like that, but nobody [should have] tried bein a hero. The way I see it is no one jumped in for my bro. I don't expect you to understand, but . . . [¶] . . . [t]hey blood and they would die for me. They've proved it to me, and that's more than I can say about your niggas.' "
Daniel R. said the two could no longer be friends like they had been and asked how Guzman would feel if Daniel R. had been the one hurt, and Guzman responded, " 'I don't expect you to understand as to why I did it . . . . I am sorry for what happened, but what do you want me to do? [¶] If it was you, it would be a different story, no doubt, but that was besides my control.' " Daniel R. texted back, " 'It was in your control, because you were the controller of the entire situation.' " Guzman replied, " 'And the nigga they was supposed to stab didn't get hit, so that's where shit went wrong. These niggas want to call me a snitch, well they can talk, [I don't give a fuck].' "
Daniel R. then responded, " 'If they did some shit to you, I'd be giving them the same talk. For you to even want someone to be killed is still out there.' " Guzman texted back, " '[Stopped] caring bout what ppl gotta say bout me a long time ago, and people leaving my bro for dead on my front porch to find left me fucked in the head, and the fact that . . . [people expect] me to just brush shit off bothers me. They always talking shit that my fam don't get down, but my cousin was drunk, and he a baby compared to the real hittas. [¶] But I do know how serious it is. I just can't break my back over these niggas that do nothing but talk shit like little girls. Even when I was with [my ex-boyfriend] they was fake to me.' " Daniel R. texted that Tovar should " 'forgive and forget,' " and Guzman responded, " 'Naww, Danni, dude, my bro is just quiet. He wants these niggas dead.' " Guzman testified that despite how these text messages might appear, she was merely "trying to make [herself] seem important" and was not actually part of a plan to hurt Afoa.
Guzman also sent text messages to others about her conflict with the football players. At one point in early November, Guzman sent a text referring to Afoa's girlfriend that said, " '[J]ust kuz I was gonna get her ugly ass nigga stabbed, but she don't want it.' " During another exchange with a different person in the same timeframe, Guzman texted that there was " 'drama with the guys who jumped my bro and like the whole football team.' " When the other person asked what was going on, Guzman responded, " 'Like they talk shit, never to my face, but they try and act all hard, but it sucks cuz all them niggas gonna . . . end up missing.' " The other person said, " 'I see!! When they gonna go missing?' " Guzman responded, " 'LMAO, not literally, but you know what I mean. These boys think it's a game. They really think those little cholos at the school are like my cousins. They stupid.' " Guzman testified that she did not mean these texts to be taken seriously, had heard the phrase about going missing in movies or on television, and was "just talking shit" and "being brave behind a cell phone."
Meanwhile, Afoa transferred to another school, but he continued to attend Newark Memorial football games. In early November, Afoa's girlfriend attended a game with Afoa and heard Guzman, who was sitting "with a couple guys," talking about her as she walked past. A friend of Afoa's testified that he recognized the boys with Guzman as Norteño gang members and was concerned for Afoa. After the game was over, Guzman's friends fought some of the football players. Afoa himself did not participate, but Afoa's friend jumped in after he saw one of Guzman's friends briefly display "a mini pocket knife." Guzman, in contrast, claimed that her friends were not gang members and that the football players provoked the fight.
Three days later, Guzman and a friend exchanged text messages about the fight at the football game. The friend then texted Guzman, " 'So yo brother still gonna get those niggas back?' " After Guzman responded affirmatively, the friend wrote, " 'They gonna kill em?' " Guzman responded affirmatively again, and the friend texted, " 'Foreal?' " Guzman texted back, " 'Yeeea, aha, he a real OG.' " The friend responded, " 'Damn, yo fuckin brother, my role model. Haha, he hella fuckin koo.' " Guzman wrote back, " 'Ahaha, fasho. He mines too.' " After the friend asked whether " 'the football players [were] after [Guzman],' " she replied, " 'Yee aha, but they bitchass niggas.' " The friend texted, " 'Ayy, so why they think dat I was YNL? I heard one of his homies was gonna get stabbed or sum like that.' " Guzman responded, " 'Yea, that's the nigga Justice. That's the nigga that jumped Rafa.' " Guzman testified that she was joking when she sent these messages and did not actually think that Tovar planned to kill Afoa.
YNL is a Norteño gang from Newark.
In mid-December, Guzman saw Afoa while she was at her church. Tovar testified that he heard that Guzman began loudly talking about Afoa and his role in Tovar's beating. Guzman, however, testified that she did not do anything and it was Tovar's ex-girlfriend who had caused a scene at the church by threatening Afoa. According to Guzman, the tension resulting from Tovar's beating in fact "was cooling down" in the time leading up to Afoa's death. Afoa's girlfriend and Daniel R. also both testified that they thought the conflict was dying down.
D. Afoa's Murder.
On the afternoon of December 15, 2010, Tovar and Guzman were driving together when Guzman saw Afoa and pointed him out to Tovar. Tovar testified that he then called Howard, said he had seen Afoa on the street, and asked how quickly Howard could get to Tovar's house. Tovar testified that after he and Guzman got home, Guzman left again, and Howard showed up within minutes. Tovar grabbed a kitchen knife, went outside, and got into Howard's car where Howard was waiting, telling Howard that they were going to find Afoa. Tovar testified that he intended to "beat [Afoa's] ass" because Guzman had recently told him that Afoa had slapped her at the Halloween party.
Tovar initially testified that he did not call Howard until after getting home, but he then acknowledged that he called Howard while still in the car with Guzman. Guzman denied hearing any such call.
Tovar testified that he and Howard soon located Afoa walking down the street, parked, and began chasing him. When they caught up to Afoa, Howard said, " 'Do you know what time it is?' " Tovar confessed that he then stabbed Afoa six times. Afoa soon died from his wounds, but Tovar claimed that he did not intend to kill Afoa and that the death was "an accident." A memorial at the site where Afoa was killed was later defaced with Norteño-related graffiti.
Tovar denied that Howard had a weapon and testified only that Howard beat Afoa. According to the only other eyewitness testimony introduced, two people, described as "Hispanic males in their thirties," followed Afoa and appeared to begin hitting him after he fell to the ground.
In a police interview soon after the murder, Guzman acknowledged that Tovar "[p]robably" wanted to take revenge after being beat up but stated that if anything, he would have targeted her ex-boyfriend, and she could not believe Tovar would have killed Afoa. Two years later, however, after Guzman was eventually arrested, she told the police that after the murder Tovar told her, "I took care of it," and said that he had stabbed Afoa. She told the police she felt Tovar had "ruined [her] life," explaining, "[T]hese were my only friends. I don't hang out with the gangsters at the school, . . . I was an athlete, I did sports, I went to dances, I was nominated homecoming queen, . . . and [Tovar] expected me to throw all that away" and keep quiet about Afoa's death.
Guzman claimed in the later police interview that she never thought Afoa would get hurt and had just been trying to "put out the word out there that my brother's just this big, bad gangster, [so] people would stop talking about it. People would stop making fun of me, or bullying me at school, or threatening me and I thought that would work and it didn't." Soon after being arrested, however, Guzman was interviewed in jail for a TV show, and when asked whether she killed Afoa, she said, " 'No, but I had a lot to do with it.' "
II.
DISCUSSION
Guzman contends that the trial court committed reversible error by not instructing the jury on involuntary manslaughter. We are not persuaded.
A. Additional Facts.
At trial, Guzman's counsel requested an instruction on involuntary manslaughter. He argued that because the jury was going to be instructed on conspiracy to commit assault as a lesser included offense of conspiracy to commit murder, it should also be allowed to consider whether "the assault that [Guzman was] intending to aid, abet[,] or conspire to commit . . . was something less than a felony, was . . . assaultive misdemeanor-type conduct," because of the evidence suggesting she lacked "knowledge of a weapon being used or what Mr. Tovar's intentions were on December 15[,] 2010." The trial court denied the request, finding that there was no evidence that Guzman "was acting out of some level of negligence performing a lawful act in a negligent or careless manner or that she was acting on some level of criminal negligence or . . . anything that would fairly support a jury relying on the idea that she was intending to commit a misdemeanor assault" as opposed to felonious assault or murder.
The trial court instructed the jury on first degree murder, second degree murder, conspiracy to commit murder, and conspiracy to commit felony assault. Based on the fact there was "no allegation . . . that [Guzman was] the actual killer," the trial court gave a special jury instruction that addressed the theories under which she could be found guilty of first degree or second degree murder. In particular, the portion of the instruction addressing second degree murder identified only two theories upon which the jury could convict Guzman of that crime: "If you find that the defendant aided and abetted an assault, the natural and probable consequence of which was the murder of the victim, you may find her guilty of Second Degree Murder. Also, if you find that the defendant conspired to commit an assault, the natural and probable consequence of which was the murder of the victim, you may find her guilty of Second Degree Murder. If you find that her state of mind was to commit an assault, rather than a murder, you may not find her guilty of First Degree Murder." The jury was also instructed under CALCRIM No. 875 that felony assault constitutes the commission of "an act that by its nature would directly and probably result in the application . . . to a person" of either force with "a deadly weapon other than a firearm" or "force likely to produce great bodily injury." The jury then returned convictions for second degree murder and conspiracy to commit assault.
B. General Legal Standards.
1. The crimes of murder and involuntary manslaughter.
"Murder is the unlawful killing of a human being . . . with malice aforethought" and is divided into first and second degree murder. (§§ 187, subd. (a), 189.) " 'Second degree murder is the unlawful killing of a human being with malice, but without the additional elements (i.e., willfulness, premeditation, and deliberation) that would support a conviction of first degree murder.' " (People v. Chun (2009) 45 Cal.4th 1172, 1181.)
Involuntary manslaughter is a lesser included offense of murder. (People v. Prettyman (1996) 14 Cal.4th 248, 274 (Prettyman).) Involuntary manslaughter is defined as "the unlawful killing of a human being without malice" while engaged in the commission of either (1) "an unlawful act, not amounting to a felony" or (2) "a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection." (§ 192, subd. (b).) A person is guilty of involuntary manslaughter under the first statutory theory when he or she commits a misdemeanor that "was dangerous to human life or safety under the circumstances of its commission." (People v. Cox (2000) 23 Cal.4th 665, 675.) A person is guilty of involuntary manslaughter under the second statutory theory when he or she commits a lawful act "which is gross or reckless, amounting to a disregard of human life or an indifference to the consequences" but does not "realiz[e] the risk involved." (People v. Evers (1992) 10 Cal.App.4th 588, 596.)
In addition, "[w]hile a killing in the course of commission of a noninherently dangerous felony does not appear to be precisely within one of these descriptions," our state Supreme Court has held that "an unintentional homicide committed in the course of a noninherently dangerous felony may properly support a conviction of involuntary manslaughter, if that felony is committed without due caution and circumspection." (People v. Burroughs (1984) 35 Cal.3d 824, 835 (Burroughs).) Based on previous Supreme Court decisions establishing that an unlawful killing committed without malice during an inherently dangerous assaultive felony is (1) manslaughter (People v. Hansen (1994) 9 Cal.4th 300, 311-312) and (2) not voluntary manslaughter (People v. Bryant (2013) 56 Cal.4th 959, 970), the Second District Court of Appeal has held that "an unlawful killing in the course of an inherently dangerous assaultive felony without malice" also constitutes involuntary manslaughter. (People v. Brothers (2015) 236 Cal.App.4th 24, 33-34 (Brothers).)
2. The natural and probable consequences doctrine.
The natural and probable consequences doctrine is a theory of vicarious liability that applies to both conspirators and aiders and abettors. (People v. Chiu (2014) 59 Cal.4th 155, 164 (Chiu); Prettyman, supra, 14 Cal.4th at p. 261.) Under the doctrine, a conspirator or aider and abettor is liable not only for the intended crime (target offense) but also any other crime the direct perpetrator actually commits (nontarget offense) if the nontarget offense is a natural and probable consequence of the intended crime. (Chiu, at p. 161; People v. Hardy (1992) 2 Cal.4th 86, 188.) Thus, there is no requirement that a defendant intend that the nontarget offense occur in order to be convicted of it. (Prettyman, at p. 261.)
A nontarget offense is a " ' "natural and probable consequence" ' " of the target offense "if, judged objectively, the additional offense was . . . a reasonably foreseeable consequence of the act [conspired to be committed or] aided and abetted." (Chiu, supra, 59 Cal.4th at pp. 161-162; People v. Zielesch (2009) 179 Cal.App.4th 731, 739.) In other words, the issue in determining whether the nontarget offense is a natural and probable consequence of the target offense " 'is not whether the [defendant] actually foresaw the additional crime, but whether, judged objectively, [the nontarget offense] was reasonably foreseeable.' " (Zielesch, at p. 739.) Whether an offense is reasonably foreseeable is a factual issue for the jury to decide. (Chiu, at p. 162.)
3. The duty to instruct the jury on lesser included offenses.
A trial court is required " ' "to instruct the jury on all general principles of law relevant to the issues raised by the evidence, whether or not the defendant makes a formal request." ' " (People v. Avila (2009) 46 Cal.4th 680, 704.) This includes the duty "to instruct fully on all lesser necessarily included offenses supported by the evidence." (People v. Breverman (1998) 19 Cal.4th 142, 148-149.) If there is " ' "substantial evidence" [citation], " 'which, if accepted . . . , would absolve [the] defendant from guilt of the greater offense' [citation] but not the lesser," ' " then the trial court must give an instruction on the lesser included offense. (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137 (Millbrook).)
This duty to instruct on lesser included offenses can arise when the defendant is charged with an offense based on the natural and probable consequences doctrine. (People v. Woods (1992) 8 Cal.App.4th 1570, 1586, 1593.) "If the evidence raises a question whether the offense charged against the aider and abettor [or conspirator] is a reasonably foreseeable consequence of the [target offense] but would support a finding that a necessarily included offense committed by the perpetrator was such a consequence, the trial court has a duty to instruct sua sponte on the necessarily included offense . . . . [¶] However, the trial court need not instruct on a particular necessarily included offense if the evidence is such that the aider and abettor [or conspirator], if guilty at all, is guilty of something beyond that lesser offense, i.e., if the evidence establishes that a greater offense was a reasonably foreseeable consequence of the criminal act originally contemplated, and no evidence suggests otherwise." (Id. at p. 1593.)
"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." (Millbrook, supra, 222 Cal.App.4th at p. 1137.)
C. Guzman Was Not Entitled to a Jury Instruction on Involuntary Manslaughter.
Guzman argues that the trial court was required to instruct the jury on the Brothers theory of involuntary manslaughter. To prevail on this claim, she must demonstrate that there was substantial evidence to permit the jury to conclude that involuntary manslaughter, but not murder, was a natural and probable consequence of the felony assault she conspired to commit. She fails to do so.
Guzman also mentions the Burroughs theory of involuntary manslaughter, which applies when the target offense is a noninherently dangerous felony, but we agree with her implication that Brothers is a better fit. The distinction between the Burroughs and Brothers theories does not affect the outcome here in any case.
We begin by observing that Guzman advanced a different theory below for why an instruction on involuntary manslaughter was required. Her counsel argued that the instruction was justified because there was evidence to support the finding that she aided and abetted or conspired to commit only a misdemeanor assault and that involuntary manslaughter based on a killing in the commission of a misdemeanor that "was dangerous to human life or safety under the circumstances of its commission" (People v. Cox, supra, 23 Cal.4th at p. 675)—not murder—was the natural and probable consequence of that target offense. Although it is true that a target offense of misdemeanor assault can be the basis for a conviction of involuntary manslaughter under the natural and probable consequences doctrine (People v. Huynh (2002) 99 Cal.App.4th 662, 681), the trial court declined to give the instruction here because it determined there was no evidence to support the theory that Guzman intended only a misdemeanor assault. On appeal, she does not rely on the misdemeanor theory to argue that an instruction on involuntary manslaughter should have been given, and we therefore do not consider whether the court's reasoning on this point was correct.
Instead, Guzman now contends that there was substantial evidence to permit the jury to conclude that the Brothers type of involuntary manslaughter—an unlawful killing committed without malice during the commission of an inherently dangerous assaultive felony—was a natural and probable consequence of her aiding and abetting or conspiring to commit felony assault. We are doubtful that there are ever circumstances under which the Brothers type of involuntary manslaughter, but not murder, would be a reasonably foreseeable consequence of felony assault. We need not resolve the issue, however, because such circumstances do not exist here.
In support of her claim, Guzman points to evidence that most of the fights between the football players and others leading up to Afoa's death did not involve weapons, that she was unfamiliar with the past exploits of Tovar and Howard and "did not know what [they] were truly capable of doing," and that she "aided in the assault largely with the hope of remedying her personal problems at school." She also points to her own statements that she did not mean her text messages literally and evidence that there was a "de-escalation of the tension in the month leading up to Afoa's death." Guzman argues that this evidence demonstrates that she did not harbor malice and that she did not foresee that the assault would endanger Afoa's life.
But whether Guzman intended for Afoa to die or was actually aware of the risk of Afoa's death is of no moment; her liability under the natural and probable consequences doctrine requires only that she intended a felony assault, not murder, to occur. (See Prettyman, supra, 14 Cal.4th at p. 261.) And whether a nontarget offense is a reasonably foreseeable consequence of a target offense is judged objectively, not based on what the defendant "actually foresaw." (Chiu, supra, 59 Cal.4th at pp. 161-162.) Moreover, even if we were to accept that the evidence Guzman identifies constitutes substantial evidence that it was not reasonably foreseeable that the planned assault would lead to Afoa's death, if credited that evidence would lead to her acquittal of any homicide offense. To prevail on her claim, she must instead demonstrate that there is substantial evidence that the Brothers type of involuntary manslaughter, but not murder, was a natural and probable consequence of the felony assault she conspired to commit. (See Millbrook, supra, 222 Cal.App.4th at p. 1137; People v. Woods, supra, 8 Cal.App.4th at p. 1593.) She does not, however, explain how the evidence she identifies made it reasonably foreseeable that Tovar or Howard would kill Afoa without malice in the course of a felony assault. We conclude that she was not entitled to a jury instruction on involuntary manslaughter.
III.
DISPOSITION
The judgment is affirmed.
/s/_________
Humes, P.J. We concur: /s/_________
Dondero, J. /s/_________
Banke, J.