Opinion
C081643
05-29-2018
THE PEOPLE, Plaintiff and Respondent, v. SALVADOR RAMON MARTINEZ, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 14F04828)
Early on July 13, 2014, there was a wild shoot-out by the Hookah Lounge near Fulton Avenue and Arden Way in Sacramento. Tyrell Hall was killed and two people were injured. A jury found defendant Salvador Ramon Martinez guilty of second degree murder, and found he personally and intentionally discharged a semiautomatic firearm. (Pen. Code, §§ 187, subd. (a), 12022.53, subds. (b)-(d).) The trial court sentenced him to prison for 40 years to life, and he timely appealed.
On appeal defendant contends no substantial evidence supports murder on a provocative acts theory, and the jury was not properly instructed thereon. He also challenges a pattern instruction on adoptive admissions. We shall affirm.
BACKGROUND
A full recitation of all of the trial evidence is not necessary to resolve the issues raised on appeal. We summarize the relevant evidence and describe permissible inferences below.
A number of people were enjoying a Saturday night on the town, inside and in front of the Hookah Lounge. Defendant was celebrating his 19th birthday there with his friends, including Hall. A disturbance broke out in a Target parking lot across the street. Defendant had nothing to do with that disturbance. But for reasons not entirely clear, the disturbance later evolved into a multi-shooter gun battle outside of the lounge. In the aftermath, officers found 29 bullet casings in the area, fired from five different pistols.
Viewing the evidence in the light favorable to the verdict (People v. Abilez (2007) 41 Cal.4th 472, 504), Hall was killed by a shot fired by codefendant Tara Dania. Defendant had been shooting at Dania, and Dania fired back at defendant. Dania wounded defendant and killed Hall, an uninvolved bystander.
Also charged were Dania, Frederick Lamont Davis, Frank Eugene Jackson, and James Wallace. Dania argued self-defense and was acquitted; the dispositions of the remaining defendants' cases are not relevant to this appeal.
The defense theory was that defendant himself did not fire any shots. However, a .380 Beretta pistol was found under his car, with his blood on it, and his blood was also found on a .380 shell casing, one of seven nearby casings fired from the same pistol. The other pistols fired that night were nine-millimeter or .40-caliber weapons. Defendant was shot through his hand and the bullet went in a straight line to his elbow, suggesting his hand was extended (such as by pointing a firearm) when he was shot. The jury could infer defendant had fired the .380 pistol and hidden it after he was shot in the hand.
After the disturbance began--but before any gunfire--the lounge's uniformed and visibly armed security guard told some of the troublemakers to leave; defendant then approached the guard and told him that if he needed help, "I have your back." The jury rationally could draw the inference from this unusual behavior that defendant, too, was armed, and therefore capable of assisting the armed guard if the disturbance escalated.
Inexplicably, the guard fired only into the air in this urban area during the gunfight. (Cf. Pen. Code, § 246.3.)
Further, the jury rationally could find defendant hid the pistol under his parked car, and that that act, and his denial that he drove his car to the lounge when he was questioned in the hospital, evidenced consciousness of guilt. There was gunshot residue found on his shirt, although that could have been caused by his being near a fired gun. Finally, there was evidence of a purported adoptive admission, discussed more fully in Part III, post. In short, when detectives talked to defendant at his home, they told him they found a gun under his car, but he remained silent.
In argument, the prosecutor described his general theory as follows. Referencing the brevity of the incident and the small area in which it occurred, he likened it to "the OK Corral," and argued "Hall is dead because [defendant] and Mr. Dania play out their own little [duel] in a crowded area in front of any number of innocent persons and, because of that," Hall died. "Dania and . . . [defendant] decide that they are going to play cowboy. This ain't the Wild West, folks. But that's exactly what is going on out here in front of the Hookah Lounge." Defendant's act of approaching the guard and offering aid showed he was armed and if trouble began he wanted to be part of it. Defendant began firing at Dania, who returned fire. Defendant lied about driving his car to the lounge, and he ditched the pistol found under it, which had his blood on it because he had been shot through the hand toward his elbow, and was almost hit by a second bullet that went through his beanie. The incoming shots, "one through the beanie . . . one in his arm," showed that defendant had his arm extended in a "[s]hooter stance." The gunshot residue on his shirt, while not conclusive, added to the evidence he fired a pistol.
As for legal culpability, the prosecutor first argued both defendant and Dania caused Hall's death. "It's a hail of bullets. It is back and forth. Dania and [defendant] shooting away, which sets in motion a chain of events that produces, as a direct, natural and probable consequence, the death of" Hall. Defendant was "just as much a cause of" Hall's death as Dania because they were "squared up" and defendant was drawing Dania's fire "right to him and right to Mr. Hall." Defendant acted with malice and without justification. The jury could find express malice based on defendant shooting to kill Dania, but did not have to, because the facts showed implied malice based on the commission of an act knowing it is naturally and probably dangerous to human life, shooting a gun at a person was a dangerous act, and defendant shot several times at Dania, in conscious disregard of human life. "[Defendant] didn't care, Dania didn't care. They were too busy shooting away at each other" to care about human life. Defendant's shots, in combination with Dania's return fire, was a substantial factor in Hall's death, which was the natural and probable consequence of their gunplay in a limited space.
The prosecutor then discussed "another theory of liability" that applied only to defendant, emphasizing that there were two distinct paths by which the jury could return a murder verdict against him. The prosecutor outlined the elements of the provocative acts theory consistent with the pattern instruction (CALCRIM No. 560), and described how the jury could find how the evidence satisfied those elements. "In this case, what he is doing is shooting a weapon, okay. But in committing an intentional act, a provocative act, [defendant] knew that the natural and probable consequences of that act were dangerous to life" and in response to his act "Mr. Dania fires and kills Mr. Hall, and [if] you find that the death was the natural and probable consequence of [defendant's] act, then [defendant] is guilty." "[I]f you, as the finder of fact, find that [defendant] was the provocateur of that exchange, and . . . it's a different issue and it's separated from whatever is going on out on the street. The exchange that is being provoked, if any, is the exchange of actual bullets back and forth [i.e., between defendant and Dania]. [¶] And if you, as the fact finder, find [defendant] was the provocative [actor] in that particular exchange, bullet to bullet, then this theory could and can apply to him." (Italics added.) "[I]f you find that [defendant] instigated the . . . bullets firing back and forth [i.e., those exchanged by defendant and Dania], then that is a theory that could apply to him."
Defense counsel argued Dania came armed "ready for something to happen." When something did happen, Dania fired towards where he claimed to have seen flashes, at a "black figure" or "dark figure" seen "clearly shooting" on a video recording, but Dania instead hit defendant and Hall. Counsel conceded there was only one gun fired from the area towards which Dania returned fire, but argued defendant was not the "dark figure" shooting from the south. Counsel also pointed to the testimony of a witness who described the first shooter in a way that did not match defendant. Later counsel argued defendant "did not begin the chain of events" but merely got shot because he was present.
The video recordings did not clearly identify defendant as a shooter, but evidently showed the shooting began from the south.
As for the other evidence, defense counsel argued the small amount of defendant's blood on the pistol could have been a result of a transfer, during all of the confusion at the scene, which also could have caused the .380 shell casings to be kicked around. The small amount of gunshot residue on defendant's shirt could have been the result of a transfer, or standing near a fired gun. When defendant lied about driving his car to the lounge that night, he was in pain at the hospital and in shock at his friend's death. His claimed admission about the gun was not an admission: All the jury had heard was a detective's recollection of what was said, and how it had been said, and that did not establish an adoptive admission. Defendant could have understood that the detectives did not want to ask him about the gun in front of his mother, but would ask him about it later. (See Part III, post.)
In response, the People partly argued "Mr. Dania and [defendant] are the only two people in that parking lot [who] aren't ducking and running. . . . And there's a good reason for that, because they are the ones shooting the firearms." There was a lot of blood on the .380 Beretta, the technician merely tested one area, and to suppose it was just bad luck that that one spot was the only part that had defendant's blood, instead of some unknown shooter's blood, was "absolutely ludicrous." The lie in the hospital about driving was no mistake, and regardless of the circumstances at defendant's home when he was told about the gun found under his car, a reasonable person would have spoken up--unless he felt guilty.
DISCUSSION
I
Sufficiency of the Evidence; Provocative Acts Doctrine
Defendant contends no substantial evidence supports his murder conviction based on a provocative acts theory. We reject this claim on procedural grounds.
Provocative acts murder is not itself a crime, it is "a descriptive category or shorthand formula denoting certain circumstances under which a defendant comes within the statutory definition of murder when his or her unlawful conduct provokes another into committing the fatal act." (People v. Cervantes (2001) 26 Cal.4th 860, 867, fn. 10 (Cervantes).) It refers "to a subset of intervening-act homicides in which the defendant's conduct provokes an intermediary's violent response that causes someone's death." (People v. Gonzalez (2012) 54 Cal.4th 643, 649, fn. 2; see People v. Concha (2009) 47 Cal.4th 653, 663.) It describes a set of facts in which the defendant acts so as to provoke another person into killing someone. (Gonzalez, at p. 649, fn. 2; Cervantes, at p. 867.) It is in effect a "subset of implied malice." (Levenson & Ricciardulli, Cal. Crim. Law (The Rutter Group 2017-2018) Homicide, § 5.9, p. 5-20 (Levenson & Ricciardulli).)
As the Attorney General points out, the trial court instructed the jury on second degree murder based on two theories. First, defendant acted either with intent to kill (express malice) or conscious indifference to human life (implied malice), and his act was a substantial factor in Hall's death, which was the natural and probable consequence of defendant's actions. Second--and separately--the trial court instructed the jury on the provocative acts theory. As previously explained, the prosecutor argued each of these two theories to the jury.
We have no idea which theory the jury found true; indeed, it is possible the jury found both theories were true. This obviates any need to address defendant's claim, which attacks the sufficiency of the evidence only as to one of the two theories.
" 'Where the jury considers both a factually sufficient and a factually insufficient ground for conviction, and it cannot be determined on which ground the jury relied, we affirm the conviction unless there is an affirmative indication that the jury relied on the invalid ground.' " (People v. Thompson (2010) 49 Cal.4th 79, 119; see People v. Sanchez (2001) 26 Cal.4th 834, 851 (Sanchez); People v. Guiton (1993) 4 Cal.4th 1116, 1129 ["If the inadequacy of proof is purely factual . . . reversal is not required whenever a valid ground for the verdict remains, absent an affirmative indication in the record that the verdict actually did rest on the inadequate ground"].)
Defendant does not acknowledge the existence of the alternate theory presented to the jury, and has presented no argument that there is any indication in the record--affirmative or otherwise--that the jury relied on the claimed factually insufficient ground, viz., the provocative acts theory of murder. Given this scenario, even if the evidence of provocative acts murder fell short, we would presume the jury rendered its verdict on the alternate theory. Defendant does not argue insufficient evidence on that theory, and we will not make arguments for him. (See People v. Stanley (1995) 10 Cal.4th 764, 793.)
Appointed appellate counsel filed a 103-page opening brief, but no reply brief, thus she fails to address the Attorney General's procedural refutation of this argument. We note with disapproval that counsel incorrectly claims the provocative acts theory was the only theory presented to the jury by the prosecutor, which indicates at best that she has significantly misread the appellate record.
We note that the case for express malice was strong. In a somewhat analogous case, two men engaged in a gun battle, an innocent bystander was killed by one bullet, and both men were convicted of first degree murder. (Sanchez, supra, 26 Cal.4th at pp. 838-839.) In rejecting the view that the verdict as to one of the men must have been based on a provocative acts theory, our Supreme Court explained:
"Defendant and Gonzalez engaged one another in a gun battle on a public street in broad daylight, during which each plainly attempted to murder the other. Given that their respective claims of self-defense were rejected by the jury, express malice on the part of each was patently established. In contrast, the definition of provocative act murder in the instruction given would have been triggered by the finding of a provocative act that gave rise to an inference of implied malice. Given that defendant and Gonzalez were each convicted of first degree murder on facts plainly establishing express malice, there is no sound basis on which to conclude that the jury rested defendant's first degree murder verdict on a finding that he committed a provocative act with implied malice." (Sanchez, supra, 26 Cal.4th at p. 852.)
Of course, in this case defendant was convicted of second degree murder, and Dania was acquitted outright, but evidently based on the justification of self-defense, not because the jury doubted whether Dania lacked the intent to kill. Daria's intent was shown in part by the fact that his return fire hit defendant and killed Hall, who was standing next to defendant. The fact remains that the evidence supports the inference that defendant began firing at Dania first, an act the jury could rationally have found showed express malice (intent to kill), leading Dania to return fire in a confined area, causing Hall's death on a natural and probable consequences theory. On these facts we cannot assume the verdict was based on the alternative provocative acts theory.
Accordingly, we need not address whether sufficient evidence supports the murder verdict based on a theory of provocative act murder.
At various points defendant refers to charges against other persons and the results thereof to bolster arguments about the evidence. What happened to other counts is not directly relevant, both because the jury was instructed to separately consider the evidence as to each defendant and decide each charge separately, and because normally an acquittal on any count can be the product of jury confusion, lenity, or compromise. (See People v. Lewis (2001) 25 Cal.4th 610, 656; People v. Hussain (2014) 231 Cal.App.4th 261, 273; People v. Pahl (1991) 226 Cal.App.3d 1651, 1656-1657.) But viewing the evidence in the light most favorable to the verdict, we must infer Dania acted in self-defense vis à vis defendant, an implied finding supported by Dania's testimony.
II
CALCRIM No. 560
Defendant contends the pattern instruction on provocative acts murder (CALCRIM No. 560) is deficient because it does not require the jury to find "that appellant was the instigator of events causing Hall's death." We disagree that the jury should have been instructed that it was required to find defendant started the dispute at Target in order to find him liable on a provocative acts theory, or as counsel puts it, that "instigating the [entire] chain of events" is an element of the theory.
We must address this issue on the merits if properly raised, because if the jury was misinstructed on one of two theories of liability, it was a legally insufficient theory. (See People v. Guiton, supra, 4 Cal.4th at pp. 1128-1131 [not resolving the exact standard of prejudice].) We note, however, that the claim raised on appeal does not match the objection lodged in the trial court: Trial counsel argued a separate underlying crime had to be alleged in order to justify instructing the jury on a provocative acts murder theory. When that objection was overruled, defense counsel explicitly agreed "with the current version of [CALCRIM No.] 560 as you have given it to us." Despite this arguable forfeiture, and because the Attorney General does not address it as such, we reach the merits of the current claim.
We disagree with defendant's interpretation of the provocative acts theory.
The theory "has traditionally been invoked in cases in which the perpetrator of the underlying crime instigates a gun battle, either by firing the first shot or otherwise engaging in severe, life-threatening, and usually gun-wielding conduct, and the police, or a victim of the underlying crime, responds with lethal force by shooting back and killing the perpetrator's accomplice or an innocent bystander." (Levenson & Ricciardulli, supra, Homicide, § 5.9, at p. 5-21, italics added.) But we know of no authority requiring that the provocative conduct be the first step in a given series of events escalating into lethal violence.
In constructing his argument, defendant takes passages from different cases, divorced from their context, and tries to make the theory something more than it is, as we have put it, "a species of implied malice murder." (People v. White (1995) 35 Cal.App.4th 758, 768.) "For the most part, the evolution of this criminal liability has been influenced by other legal doctrines which are not directly applicable here--such as the felony-murder rule or vicarious liability for the acts of a coconspirator or aider and abettor, although there are a few decisions which find a defendant criminally liable outside the bounds of those other doctrines and simply as the proximate cause of the victim's death, as we do here." (People v. Gardner (1995) 37 Cal.App.4th 473, 476; see White, at pp. 763-765.) What is critical is that the jury be properly instructed on implied malice and proximate cause.
The jury was given the pattern instruction on provocative acts murder, CALCRIM No. 560. As modified to account for the fact that this was not a felony-murder case (e.g., the classic example of a planned robbery gone awry, during which a gun battle ensues), the jury was told that had to find defendant (1) "intentionally did a provocative act;" (2) "knew the natural and probable consequences of the provocative act were dangerous to human life and then acted with conscious disregard for life;" (3) that in response to that act, Dania killed Hall; and (4) "Hall's death was the natural and probable consequence of [defendant's] provocative act." The components of this doctrine were further defined, including what qualified as a provocative act, and what qualified as natural and probable consequences, including the requirement that the provocative act was a substantial factor ("more than a trivial or remote factor" but not necessarily the sole factor) that caused death.
Defendant cites cases presenting the typical fact pattern where a defendant launches the first attack or starts a gun battle, causing a victim or bystander to return fire, killing someone. (See, e.g., People v. Karapetyan (2003) 106 Cal.App.4th 609, 618-619; People v. Gardner, supra, 37 Cal.App.4th at p. 475.) We certainly agree the doctrine may well apply in those fact patterns. (See, e.g., Cervantes, supra, 26 Cal.4th at p. 867; People v. Baker-Riley (2012) 207 Cal.App.4th 631, 633-635.) But that is not the only category of cases that may support provocative act murder. Any act that a jury finds was done with knowledge that it would naturally and probably cause danger to human life by provoking a deadly response, and is done with conscious disregard for human life, and is a direct and substantial factor in killing someone, satisfies the doctrine. It is well settled that a "defendant's attempts to kill or assault someone with a firearm are by themselves provocative acts likely to draw a deadly response. Thus, there is no need for a separate provocative act to be committed." (People v. Karapetyan, supra, 106 Cal.App.4th at p. 619; People v. Gallegos (1997) 54 Cal.App.4th 453, 461-462 ["Gallegos was in an extremely crowded dance hall, jumped up on the slightly elevated stage crowded with band members, which was inches from patrons dancing on the floor, began shooting at the attempted murder victim, and continued to do so after the latter jumped off the stage and was trying to leave the hall, and even while Gallegos was on the dance floor and was being subdued by other patrons. This satisfies both the 'actus reus' and 'mens rea' elements of provocative murder," "there was a 'high probability' under the circumstances that Gallegos's shooting would elicit a life-threatening response from the attempted murder victim, or from anyone else present, for that matter"].)
Defendant points to a passage in which our Supreme Court, in rejecting provocative acts liability, in part mentioned that the "[d]efendant was not the initial aggressor in the incident that gave rise to the provocative act." (Cervantes, supra, 26 Cal.4th at p. 872.) But "the critical fact" in that case was that "the actual murderers were not responding to defendant's provocative act by shooting back at him or an accomplice, in the course of which someone was killed." (Id. at pp. 872-873, italics added.) Instead, shortly after the defendant shot an "Alley Boy" gang-member, members of that gang (not previously an enemy of the defendant's gang) saw a member of the defendant's gang and shot him several times, killing the victim. (Id. at p. 863.) Our Supreme Court held that the defendant's acts did not proximately cause the shooting, noting that there was no direct evidence the killers saw him shoot their fellow gang member, he was not present when the victim was shot (id. at p. 872), and "[t]he fatal shots were fired, not at the defendant or an accomplice, but instead at a third party . . . who was not a party to the initial provocative act" (id. at p. 874). Instead, the murder "was an independent intervening act on which defendant's liability for the murder could not be based." (Ibid.) Here, Dania's shooting at defendant (thus killing Hall) was a direct and immediate response to defendant's shooting at Dania. There was no independent intervening act, no temporal separation, and no direct involvement of other actors in Hall's death, as was the case in Cervantes. "[W]hile provocative act murder has traditionally involved cases where the defendant instigates a gun battle, it is not by definition limited to such factual situations. Neither its elements nor any case law interpreting this doctrine support such a limitation." (People v. Lima (2004) 118 Cal.App.4th 259, 268, italics added.)
We find no deficiency in CALCRIM No. 560.
III
CALCRIM No. 357
Defendant contends the trial court misinstructed the jury on adoptive admissions (Evid. Code, § 1221). We disagree with this contention.
A. Background
When defendant was first questioned at the hospital while he was being treated for his wound, he had denied driving to the lounge that night. His car later was identified in the parking lot, with the bloody .380 Beretta pistol under it. On July 17, 2014, detectives Tracy and Rose went to defendant's house to speak with him and to obtain a DNA sample. On direct examination, Tracy testified defendant's hand and forearm were still bandaged. Defendant told the detectives that he did not have "good detail" about where he had been when he was shot. Defendant gave them a DNA sample. Near the end of their conversation, Tracy told defendant that a gun had been found under his car "and I asked him for an explanation for the gun being found under his car." Defendant remained mute, neither answering the question nor asking about the gun, nor denying knowing about the gun. The detectives left without arresting defendant.
On cross-examination, Tracy testified that defendant had been cooperative and allowed the DNA swab, and that defendant's mother had been present for most of the conversation. He testified "I told him that we had found a gun under his car, and that we would like to discuss that issue with him. But since his mom had gone upstairs, I told him that -- I waited for her to leave so I didn't front him off [sic] in front of his mother." Later, when cross-examined about prior testimony on the subject he had given, Tracy testified as follows:
At the preliminary hearing, Tracy testified the detectives told defendant they had found a firearm under his car and wanted to talk to him about it, but they did not want to do so in front of his mother, who had "walked upstairs for a moment." In response to this, Tracy testified defendant "didn't say anything. He just looked at me."
"Q. And before I ask the question, Mr. Martinez's mom, she left the room just for a moment right, and she came back?
"A. That's correct.
"Q. Okay. And do you recall testifying the last time that 'I told' -- 'I told him,' Mr. Martinez, 'that we had recovered that firearm and were aware that it was under his car'? Do you remember telling him that?
"A. Yes.
"Q. And you said that this morning [i.e., on direct], correct?
"A. Correct.
"Q. And then you said, 'and that I asked him or I told him that at some point he would' -- 'we would like to discuss that with him, but we didn't want to do that in front of his mother, who had been in the room but had walked upstairs for a moment,' right?
"A. That's correct.
"Q. And then she came right back?
"A. That's correct.
"Q. And so you never asked him if he could explain why that gun was there at that point?
"A. At that point?
"Q. Right.
"A. Correct.
"Q. And that's when you were asked, did Mr. Martinez respond to you at all. [¶] Do you remember that?
"A. Correct.
"Q. And that's -- that's when you said the last time he didn't say anything, he just looked at me?
"A. Correct."
There was no further testimony from Tracy about this subject. Detective Rose did not testify about the alleged adoptive admission, but confirmed defendant was cordial and cooperative at his home, and voluntarily gave a DNA sample.
Over a defense objection, the jury was given the pattern instruction on adoptive admissions, CALCRIM No. 357.
The prosecutor argued to the jury that when asked about a gun found under his car, "the average person, a normal person, a person who hadn't ditched that gun under his own car would say what, what? What do you mean?" Instead of saying, "I have no idea what you are talking about," defendant said nothing. Defense counsel emphasized the lack of a recording of the exact words spoken and invited the jury to infer defendant understood the detectives did not want to embarrass him in front of his mother, but would ask him about the gun another time.
B. Analysis
The evidence outlined above raised a conflict of sorts about whether or not an adoptive admission had in fact been made--and it is exactly that conflict the jury was instructed to resolve.
The pattern instruction (CALCRIM No. 357) did not compel the jury to draw any inference, but instead allowed it to find an adoptive admission if it found defendant (1) understood the statement and (2) would "under all the circumstances, naturally have denied the statement if he thought it was not true" and (3) "could have denied it but did not." This accords with the rule that a "direct accusation in so many words is not essential." (People v. Fauber (1992) 2 Cal.4th 792, 852.)
Thus, if the jury found defendant felt unable to reply to the implied accusation or understood from Tracy's phrasing that the detectives were going to ask him about it at another time, so as not to upset his mother or embarrass him in front of her, the jury would not have found an adoptive admission. The record does not support defendant's evident view that his ability to speak freely to the officers--and deny the charge against him--necessarily was impaired by his mother's presence. Therefore, the jury was properly delegated the task to determine whether "under all the circumstances," including his youth, his mother's presence, and the phrasing actually used by Tracy, defendant could and would naturally have denied the implied accusation that he had had a gun.
In any event, the defense argument for prejudice is unconvincing. Counsel claims the adoptive admission was "an 'evidentiary bombshell,' " a characterization with which we disagree. The admission, even if taken as such, was not to the fact defendant shot anybody, but to the fact that he knew a pistol was under his car. Far more incriminating was the fact that defendant's blood was on the .380 pistol found under his car (the only one of the many firearms at the scene of that caliber), and on a nearby .380 shell casing, by a group of ejected .380 cartridges fired from that same pistol. Given that defendant had been shot through the hand, the conclusion that he fired the pistol that night seems highly probable. We agree with the Attorney General that what defendant did or did not say to the detectives about the pistol under his car was not a critical piece of evidence and did not tip this case in the People's favor.
Further, defendant hinges his prejudice claim on the provocative acts theory, arguing it bolstered the People's "extremely weak case" on that theory. But he makes no argument about how any purported error respecting this instruction or evidence impacted the People's alternate theory of liability. (See Part I, ante.) Again, we will not make arguments for him. (See People v. Stanley, supra, 10 Cal.4th at p. 793.)
Accordingly, even if we were to find error, it would be harmless under any standard.
DISPOSITION
The judgment is affirmed.
/s/_________
Duarte, J. We concur: /s/_________
Raye, P. J. /s/_________
Renner, J.