Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. KA081696, George Genesta, Judge.
Donna L. Harris, under appointment by the Court of Appeal, for Defendant and Appellant James Musselman.
Deborah L. Hawkins, under appointment by the Court of Appeal, for Defendant and Appellant Sarita Elizalde.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lance E. Winters and Robert C. Schneider, Deputy Attorneys General, for Plaintiff and Respondent.
ARMSTRONG, Acting P. J.
Appellant James Musselman was convicted, following a jury trial, of one count of first degree murder in violation of Penal Code section 187, subdivision (a). The jury found true the allegations that he personally used and intentionally discharged a firearm in the commission of the murder causing death within the meaning of section 12022.53, subdivisions (b), (c) and (d). The trial court found true the allegations that Musselman had served three prior prison terms within the meaning of section 667.5, subdivision (a). The trial court sentenced Musselman to 25 years to life in prison for the murder plus a 25-year-to-life enhancement term for the firearm allegation plus three one-year enhancement terms for his prior prison terms, for a total of 53 years to life in state prison.
All further statutory references are to the Penal Code unless otherwise indicated.
Appellant Sarita Elizalde was convicted, following a jury trial, of one count of first degree murder in violation of section 187, subdivision (a). The jury found true the allegations that she personally used a firearm in the commission of the murder within the meaning of section 12022.53, subdivision (b). Elizalde admitted that she had served two prior prison terms within the meaning of section 667.5, subdivision (b). The trial court sentenced Elizalde to 25 years to life in prison for the murder, plus a ten-year enhancement term for the firearm allegation and two one-year enhancement terms for her prior prison terms, for a total of 37 years to life in state prison.
Appellants appeal from the judgment of conviction. Musselman contends that there is insufficient evidence to support the jury's finding that the murder was willful, deliberate and premeditated and that the trial court erred in refusing to exclude references to "Puente" and in refusing to instruct the jury on circumstantial evidence pursuant to CALCRIM No. 224. Musselman also contends that the imposition of a criminal conviction assessment pursuant to Government Code section 70373 violated the ex post facto clause of the United States Constitution.
Elizalde contends that the trial court erred in refusing to instruct the jury on voluntary and involuntary manslaughter and in instructing the jury with a misleading version of CALCRIM No. 400 concerning aiding and abetting.
We affirm Musselman's conviction. We reverse Elizalde's conviction and remand this matter for a new trial unless the People accept a reduction in the charges to voluntary manslaughter.
Facts
On September 6, 2004, sometime after dark, appellant Musselman drove a white car to Armando "Kilo" Gonzalez's residence in La Puente. Appellant Elizalde was his passenger. Musselman drove into the alley and turned the car around so that it was facing the street. When he got out of the car, Elizalde got into the driver's seat.
Gonzalez was outside the house. Gonzalez had a prior felony conviction for possession of marijuana for sale. Melissa Reyes, who lived at the house, was also outside. She was sitting in a car with Jose Estrada ("Green Eyes" or "Pinky") and an unidentified girl. Reyes had a 2004 conviction for receiving stolen property, a 2005 conviction for giving a false name to a police officer, a 2005 conviction for identity theft and receiving stolen property, a 2005 conviction for forgery, and a 2005 conviction for identity theft and possession of methamphetamine. Reyes's boyfriend David Garcia ("Davey Boy") and his friend Leon Gomez ("Beefy") were also in front of the house. Gomez was in his car playing with his telephone.
According to Reyes, the house was a party house where people consumed drugs and alcohol every day. On September 6, Reyes had been partying for three days straight and was "on a good one." She had been using methamphetamine and alcohol and was high. She testified that Gonzalez and Gomez were also still "on a good one." According to Gonzalez, he and Gomez had used methamphetamine earlier in the day.
Reyes also testified that she was high when interviewed by police on September 24, 2004 and on October 12, 2004. Prior to her trial testimony, Reyes had denied being under the influence of drugs and alcohol at the time of the shooting or during police interviews in 2004.
According to Gonzalez, when Musselman got out of his car, Garcia approached Musselman and started talking to him. Gonzalez, fearing that appellants were up to no good, went inside the house to be with his sons and his mother. According to Reyes, Musselman and Elizalde went straight to Gomez, who was sitting in his car, and started talking to him.
Elizalde then walked over to Estrada's car. She asked to borrow a pink cell phone that Reyes was holding. Reyes demurred, but Elizalde took the phone out of her hands. After Elizalde took the phone from Reyes, Reyes looked over at Gomez's car, and saw Musselman hit Gomez. Gomez was seated in the car. According to Reyes, Garcia came over and told Musselman not to "disrespect" the house. Musselman lifted his shirt. Gomez got out of the car and a fistfight ensued.
Gomez weighed 460 pounds. Musselman weighed 170 to 200 pounds. Reyes saw Elizalde move toward the fight, carrying a.22 caliber semi-automatic handgun. Musselman was calling Elizalde. She began pistol whipping Gomez. According to Reyes, Musselman was also hitting Gomez in the head with a gun. Gomez continued to fight with Musselman, and the two men moved out of Reyes's view.
Reyes heard Gomez screaming, "James, James, James." She then heard a gunshot. Appellants left in the white car. Reyes left with Garcia and Estrada.
Inside the house, Gonzalez heard fighting. He called 911. Then he heard Gomez yell, "James, James, " and then heard a gunshot. Gonzalez waited inside the house until sheriff's deputies arrived.
Sheriff's deputies found an expended.25 caliber shell casing and a magazine with five.22 caliber rounds in it. The two calibers are not compatible.
Gomez died from the single gunshot wound to his head. He was facing the shooter with his head slightly turned when he was shot. There was no stippling on his body, which normally means that the shot was fired from more than two and a half feet away. The coroner recovered a.25 caliber bullet from Gomez's body.
Deputy Sheriff Donna Cheek investigated the killing. Gonzalez told her that when Musselman arrived at the house, he asked for a couple of people. He seemed upset when told that the people were not there. Reyes told Deputy Cheek that appellants had pistol whipped Gomez on the head. She stated that Elizalde had a.22 caliber gun.
Deputy Cheek interviewed Diane Ruiz, who was the owner of the car driven by Musselman. Ruiz had a 1997 misdemeanor conviction for inflicting corporal injury on a spouse or child and a 1999 conviction for burglary. Ruiz said that she loaned appellants her car to go get some food. Elizalde was living with Ruiz at the time. Ruiz fell asleep while they were gone. When appellants returned, they "looked like they had seen the devil." Musselman returned Ruiz's cell phone, which had blood on the earpiece. Ruiz later searched the house with Vanessa Villanueva, who was her girlfriend. They found a silver gun between the children's mattresses. The clip was missing. A friend named Joe got rid of the gun. At trial, Ruiz denied making these statements to Deputy Cheek.
Deputy Cheek also interviewed Villanueva, who had a 2003 conviction for assault with a deadly weapon or force likely to cause great bodily injury and a 2004 misdemeanor conviction for defrauding an innkeeper. Villanueva confirmed Ruiz's story about finding the gun. She told Deputy Cheek that she had seen Elizalde with the gun before. Villanueva also told Deputy Cheek that Elizalde told her that she had done something bad, could not take it back and was scared.
Both appellants testified at trial. Musselman had a 2004 conviction for robbery and several convictions for possession or possession for sale of methamphetamine. Musselman stated that he went out with Elizalde to get food. She wanted to go to Gonzalez's house to buy drugs. At the house, he told her to stay in the car because he just wanted to buy the drugs and leave. Musselman told a man at the house that he had $100. The man told him not to disrespect the house. Then a really big guy, Gomez, told Musselman to come with him. Gomez walked toward a patio and Musselman followed. Gomez turned around and hit Musselman. Musselman thought Gomez was trying to get his money. He felt that Gomez was getting the better of him. Musselman believed that his life was in danger. He could not withdraw because Gomez was fighting him. Musselman pulled his gun and squeezed the trigger.
Musselman did not usually carry a gun. He had acquired the gun shortly before the incident. He only took the gun out when he was up against the wall and dazed. He was panicky. He did not see Gomez with a weapon. He did not know Gomez and never thought of killing him. He did not hear Gomez say "James" three times.
Elizalde testified after Musselman. She had a 2006 conviction for joyriding and evading an officer with willful disregard of others. Elizalde stated that she was staying at Ruiz's house at the time of the shooting, and had a sexual relationship with Ruiz. Elizalde believed that Musselman was the love of her life, however. She used methamphetamine on the day of the shooting. On the night of the shooting, she and Musselman went to get Ruiz some food at Taco Bell. She decided to go to Gonzalez's house to get drugs. Elizalde knew Gomez, but there was no "bad blood" between them. She was not expecting trouble.
At Gonzalez's house, Elizalde went to talk to Reyes. She believed that Musselman went to buy drugs. She did not have a gun and did not know that Musselman had a gun.
Elizalde heard the sound of fighting. She saw that Musselman and Gomez were fighting, and saw Gomez head butt Musselman. Musselman's gun fell to the ground and Elizalde ran over and picked it up. She was very concerned because Gomez would not stop hitting Musselman, who could not protect himself at that point. She began hitting Gomez in the head. Hitting Gomez did not stop him. Elizalde was afraid for Musselman's life.
When asked if she remembered how many times she hit "Beefy, " Elizalde replied that she did not. She added: "Never intended for Beefy —" The prosecutor objected that there was no question pending. Musselman then stated: "What the fuck are you doing?" The court said: "Mr. Musselman." Musselman replied: "Yes, sir." The court said: "Don't look in the audience." Musselman replied: "Yes, sir." The court offered Elizalde tissue.
Elizalde did not see another gun, but she heard a gunshot. Gomez went down. Elizalde went to the car, taking with her the gun she had been hitting Gomez with. Musselman went to the car as well. Elizalde did not realize Gomez was dead. She and Musselman left.
The next day Elizalde found out that Gomez was dead. She told Musselman. He said that he wanted to kill himself and put the barrel of a gun in his mouth. Elizalde never intended for anyone to get killed.
On cross-examination, the prosecution questioned Elizalde about her pretrial statement to police, in which she said that she went to Gonzalez's house alone, Musselman arrived at the house after she did, she went into the house to use the phone and while inside heard gunshots. Elizalde stated that she had lied to the police.
Discussion
1. Sufficiency of the evidence – Musselman
Musselman contends that there is insufficient evidence to support the jury's finding that he acted willfully, deliberately and with premeditation when he shot Gomez. He claims that the evidence showed that he and Elizalde were not well acquainted with anyone at the house and there was no "bad blood" between appellant (or Elizalde) and Gomez. He also claims that no evidence supported an inference that he had any motive or reason to want to kill Gomez. There is sufficient evidence to support the finding.
In reviewing the sufficiency of the evidence, "courts apply the substantial evidence test. Under this standard, the court must review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence - that is, evidence which is reasonable, credible, and of solid value - such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." (People v. Cuevas (1995) 12 Cal.4th 252, 260-261, internal quotation marks and citations omitted.)
"The standard of review is the same in cases in which the People rely mainly on circumstantial evidence. Although it is the duty of the jury to acquit a defendant if it finds that circumstantial evidence is susceptible of two interpretations, one of which suggests guilt and the other innocence, it is the jury, not the appellate court which must be convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances reasonably justify the trier of fact's findings, the opinion of the reviewing court that the circumstances might also reasonably be reconciled with a contrary finding does not warrant a reversal of the judgment." (People v. Stanley (1995) 10 Cal.4th 764, 792-793, internal quotation marks and citations omitted.)
Premeditation and deliberation do not require much time. Thoughts may follow each with great rapidity and cold, calculated judgment may be arrived at quickly. (People v. Lenart (2004) 32 Cal.4th 1107, 1127.)
Even under a very narrow view of the evidence, the evidence supports a reasonable inference of premeditation and deliberation. It is not disputed that Musselman pulled out his gun during his fight with Gomez. It is reasonable to infer that Gomez said, "James, James, James" in response to seeing the gun. It is also reasonable to infer that some separation between the two men occurred at that point, since the forensic evidence showed that Musselman's gun was not fired at point blank range. Thus, there was at least a brief break in the fight, and an opportunity for Musselman to premeditate and deliberate before shooting.
Taking a broader view of the evidence, it would be reasonable to infer that Musselman premeditated and deliberated before the fistfight began. Musselman walked over to Gomez, who was seated in a car and posed no apparent threat to him. Musselman spoke briefly with Gomez. Then, even though Gomez was much larger than Musselman and very likely to get the better of him in a fistfight, Musselman hit Gomez. The predictable result was that Gomez got out of the car and began fighting with Musselman. The fight moved to a location where no bystanders could view it. Then, Musselman shot Gomez. It would be reasonable to infer that Musselman started the fight with Gomez to create an excuse to use deadly force against Gomez. It would also be reasonable to infer that Musselman began the fistfight in the hope of luring Gomez out of the car to a more secluded location where Musselman could shoot him. Either of those inferences would show premeditation and deliberation.
The jury was instructed with CALCRIM No. 3472 that a person does not have the right to self-defense if he provokes a fight or quarrel with the intent to create an excuse of use of force.
Motive is not an element of murder or a prerequisite for a finding of premeditation and deliberation. There is sufficient evidence to support two reasonable inferences concerning Musselman's motive in killing Gomez, however.
Musselman came to the house looking for some people. He positioned the car so that it was facing outward, and left Elizalde in the driver's seat. He had a loaded handgun on his person. Clearly, Musselman came prepared for trouble.
The motive most consistent with Musselman's preparations for a hasty retreat relates to the people appellant was searching for. Musselman looked "pissed off" when the people he was looking for were not present. After this, he had a brief discussion with Gomez, and hit Gomez. It would be reasonable to infer that Musselman was discussing something related to the people he was seeking, and that Gomez did not provide a satisfactory response. That could be a motive for murder.
It is not necessary to know exactly why Musselman was looking for these people. His expectation that the people would be at Armando's house and his anger when they were not there suggests that he did not go to the house on the spur of the moment only to buy drugs as he claimed. Further, once Musselman learned that the people were not at the house, he did not simply leave. He spoke with people who were at the house, notably Gomez. This supports an inference that the people at the house had some connection with the people Musselman was seeking, or at least he believed they did.
Similarly, by Musselman's own account, he came to the house to buy methamphetamine. When he said that he had $100, he was told not to disrespect the house. Following the disrespect comment, Musselman went over to Gomez and had a conversation. The results of that conversation were apparently not satisfactory to Musselman, who hit Gomez. It is reasonable to infer that the people at the house were unable or unwilling to sell Musselman the drugs he wanted. That could provide a motive for murder.
2. "Puente" references – Musselman
Musselman contends that evidence that "Chato" was from Puente was more prejudicial than probative and that the trial court erred in denying his motion to exclude that evidence. We see no abuse of discretion.
Evidence Code section 352 provides: "The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury."
A trial court has broad discretion to weigh the probative value of evidence against its potential prejudicial impact. A court's decision that the probative value of the evidence outweighs its prejudicial impact will not be disturbed on appeal unless the court exercised its discretion in "'an arbitrary, capricious or patently absurd manner that resulted in a manifest miscarriage of justice.' [Citations.]" (People v. Rodrigues (1994) 8 Cal.4th 1060, 1124.)
Musselman objects to the following portion of Officer Fahey's interview of Reyes: "Fahey: Now where do you – where do you know um, James from? Where does he kick it?
"Reyes: At Chato's.
"Fahey: Chato?
"Reyes: Freddy.
"Fahey: On Dellhaven?
"Reyes: No.
"Fahey: I don't know who Chato is. Where is he from?
"Reyes: Puente. [¶]... [¶]
"Fahey: What street does he live on? Do you know?
"Reyes: (unintelligible).
"Fahey: And? Valley?
"Reyes: No, (unintelligible).
"Fahey: You know where, you know which house it is?
"Reyes: Yeah.
"Fahey: Okay."
Musselman contends that the reference to "Puente" coupled with the use of nicknames for the victim and many of the witnesses in this case conveyed that Chato was a gang member and that Musselman was also a gang member since he spent time at Chato's house.
No gang connotation was conveyed by the use of the word Puente. The crime in this case occurred in La Puente. Officer Fahey's questions, as read to the jury, show an attempt to learn the physical location of a house. In the context above, Puente clearly conveyed a geographic location.
Many non-gang members have nicknames. In this case, a variety of nicknames were used. One nickname was "Davey Boy" for David. The victim, who was very large, was called "Beefy." There are no gang connotations to these nicknames.
Armando Gonzalez was known as "Kilo, " which might have a drug connotation. Gonzalez acknowledged using methamphetamine the day Gomez was killed.
We do not agree with Musselman that one juror's request to be excused shows that the jurors believed that this case involved gangs.
Alternate Juror No. 1 asked to be excused because she had seen people from the courtroom audience at Walmart, where she worked. She had seen these people "way before" she came to court. The judge told the juror: "It's a serious case, and you live in the community, but I have never had in 34 years a problem with a juror with someone in the audience or some family member." The judge then asked if that made the juror feel better. The juror replied: "I don't know. I don't like to judge people. That's why I feel like –"
The juror was clearly uncomfortable being on the case, but nothing she said suggests that this discomfort arose from a belief that gangs were involved. As the court noted, "this is a case that makes people uncomfortable."
3. Circumstantial evidence instruction – Musselman
Musselman contends that the trial court erred in failing to instruct the jury with CALCRIM No. 224 concerning circumstantial evidence. We see no prejudice to him.
CALCRIM No. 224 provides in pertinent part: "If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to innocence and another to guilt, you must accept the one that points to innocence."
Musselman claims that the jury could have inferred that Gomez hit him first, based on Reyes's testimony that she looked over and saw Musselman hit Gomez. He understands Reyes's comment to mean that she was not looking at Musselman and Gomez immediately before Musselman hit Gomez. Once the jury inferred that Gomez hit Musselman first, it could conclude that he was acting in self-defense. Then, under CALCRIM No. 224, the jury would have to accept the inference that Gomez hit Musselman first, since that would point to Musselman's innocence.
Reyes's testimony, however, is direct evidence that Musselman hit the first blow. The fact that she was not watching Musselman and Gomez continuously is a weakness in this evidence, which could cause the jury to find that the prosecutor had not proved that Musselman struck the first blow. It is not circumstantial evidence supporting an inference that Gomez struck the first blow.
Almost anything could have happened when Reyes was not looking, and there could be many reasons Musselman hit Gomez. Gomez could have hit Musselman first. Gomez could also have insulted Musselman, refused to do something that Musselman wanted him to do (for example, sell him methamphetamine), or done something that Musselman did not like (for example, try to take Musselman's cash). For that matter, Musselman could have hit Gomez when Reyes was not looking, thus making the blow observed by Reyes the second blow by Musselman. All of these events are simply speculation. There is no basis to conclude anything about what occurred while Reyes was not looking.
Since CALCRIM No. 224 did not apply to Reyes's lack of continuous observation of Musselman and Gomez, there was no prejudice to Musselman under any standard of review from the trial court's failure to read CALCRIM No. 224.
4. Government Code section 70373 – Musselman
The trial court imposed a $30 assessment fee pursuant to Government Code section 70373 on Musselman. He contends that the imposition of this fee for a crime committed before the passage of the law imposing the assessment violates the state and federal constitutional prohibition against ex post facto laws. (U.S. Const., art. I, § 913; Cal. Const., art. I, § 9.) We do not agree.
The Third District Court of Appeal has found that the imposition of the Government Code section 70373 fee does not violate constitutional prohibitions against ex post facto. (People v. Fleury (2010) 182 Cal.App.4th 1486, 1494-1495.) We agree with the reasoning of that opinion. There was no violation of any ex post facto prohibition.
5. Instructional error – voluntary manslaughter – Elizalde
Elizalde contends that the trial court erred in refusing to instruct the jury that she could be guilty of voluntary manslaughter under a heat of passion or imperfect self-defense theory, and that the error was prejudicial. We agree, although we would more broadly state the second theory of voluntary manslaughter in this case as imperfect defense of another.
Elizalde also contends that the trial court erred in instructing the jury with an erroneous version of CALCRIM No. 400 concerning aiding and abetting liability. We discuss that instruction in section 6, below.
A trial court has a sua sponte duty to instruct on all theories of a lesser included offense which find substantial support in the evidence. (People v. Breverman (1998) 19 Cal.4th 142, 162.) "'Substantial evidence' in this context is '"evidence from which a jury composed of reasonable [persons] could... conclude[ ]"' that the lesser offense, but not the greater, was committed. [Citations.]" (Ibid.)
"In deciding whether there is substantial evidence of a lesser offense, courts should not evaluate the credibility of witnesses, a task for the jury. [Citations.] Moreover, ... the sua sponte duty to instruct on lesser included offenses, unlike the duty to instruct on mere defenses, arises even against the defendant's wishes, and regardless of the trial theories or tactics the defendant has actually pursued. Hence, substantial evidence to support instructions on a lesser included offense may exist even in the face of inconsistencies presented by the defense itself." (People v. Breverman, supra, 19 Cal.4th at pp. 162-163.)
The unlawful killing of a human being is voluntary manslaughter if it occurs upon a sudden quarrel or heat of passion, is done in the actual but unreasonable belief in the need for self-defense or is done in the actual but unreasonable belief in the need to defend another. (§ 192, subd. (a); People v. Cruz (2008) 44 Cal.4th 636, 664; People v. Randle (2005) 35 Cal.4th 987, 997, overruled on other grounds by People v. Chun (2009) 45 Cal.4th 1172.) All persons concerned in the commission of a crime, whether they directly commit the act constituting the offense, or aid and abet in its commission, are principals in any crime so committed. (§ 32.)
a. Direct aiding and abetting
A person is liable as an aider and abettor if "'acting with (1) knowledge of the unlawful purpose of the perpetrator; and (2) the intent or purpose of committing, encouraging, or facilitating the commission of the offense, (3) by act or advice aids, promotes, encourages or instigates the commission of the crime.' [Citation.]" (People v. Prettyman (1996) 14 Cal.4th 248, 259.)
As the California Supreme Court previously explained in detail: "[T]he aider and abettor must share the specific intent of the perpetrator." (People v. Beeman (1984) 35 Cal.3d 547, 560.) "[A]n aider and abettor will 'share' the perpetrator's specific intent when he or she knows the full extent of the perpetrator's criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator's commission of the crime. [Citations.] The liability of an aider and abettor extends also to the natural and reasonable consequences of the acts he knowingly and intentionally aids and encourages." (Ibid.)
In People v. McCoy (2001) 25 Cal.4th 1111, 1120 (McCoy), the California Supreme Court explained that "[a]ider and abettor liability is premised on the combined acts of all the principals, but on the aider and abettor's own mens rea. If the mens rea of the aider and abettor is more culpable than the actual perpetrator's, the aider and abettor may be guilty of a more serious crime than the actual perpetrator." The Court left open the question of whether an aider and abettor could be guilty of a lesser homicide-related offense than the perpetrator.
Division Three of this District Court of Appeal has now held that an aider and abettor can be guilty of a lesser homicide-related offense than the perpetrator. (People v. Nero (2010) 181 Cal.App.4th 504, 518 (Nero).) As Nero explains, the Supreme Court in McCoy "based its conclusion that an aider and abettor may harbor a greater mental state than that of the direct perpetrator on the premise that one actor's mens rea may not equal another's" and "emphasized, repeatedly, that an aider and abettor's mens rea is personal, that it may be different than the direct perpetrator's." (People v. Nero, supra, 181 Cal.App.4th at p. 514.) As the Supreme Court itself stated: "The same principles should apply whenever a person aids, or perhaps induces, another to kill, whether that other person is entirely innocent, ... or... culpable, ... or, potentially, more culpable. In any of these circumstances, each person's guilt would be based on the combined actus reus of the participants, but also solely on that person's own mens rea. Each person's level of guilt would '"float free."' [Citation.]" (People v. McCoy, supra, 25 Cal.4th at p. 1121.)
As the Court in Nero explains, the reference in McCoy, supra, 25 Cal.4th at page 1121, to an aider and abettor's mental state floating free "is from Professor Dressler's writings: '"[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. If their mentes reae are different, their independent levels of guilt... will necessarily be different as well.'" (Dressler, Understanding Criminal Law (2d ed. 1995) § 30.06[C], p. 450, fns. omitted.)' (McCoy, supra, 25 Cal.4th at pp. 1118-1119, 108 Cal.Rptr.2d 188, 24 P.3d 1210.) In later editions of his treatise, Dressler agrees that an aider and abettor's guilt may be less than that of the direct perpetrator: 'At common law and today, there is no bar to convicting an accessory before the fact or a principal in the second degree of a lesser offense or degree of offense than is proven against the primary party/perpetrator, if the secondary party's culpability is less than that of the primary actor. For example, even if P is guilty of first-degree premeditated murder, S is properly convicted of second-degree murder if he did not premeditate or if he lacked the specific intent to kill, required elements of first-degree murder. Or, suppose that S and P walk into S's house and discover S's spouse in an act of adultery with V. If S, in [a] sudden heat of passion, provides a gun to P, who calmly kills V, S may be guilty of voluntary manslaughter, although P is guilty of murder.' (Dressler, Understanding Criminal Law (4th ed. 2006) § 30.06[C], p. 524, fns. omitted.)" (People v. Nero, supra, 181 Cal.App.4th at pp. 515-516.)
We agree with the Court in Nero, supra, 181 Cal.App.4th at pages 515-516, that an aider and abettor's liability may be less than that of the perpetrator. As Division Two of this District Court of Appeal has stated, in dicta: "Though McCoy concluded that an aider and abettor could be guilty of a greater offense than the direct perpetrator, its reasoning leads inexorably to the further conclusion that an aider and abettor's guilt may also be less than the perpetrator's, if the aider and abettor has a less culpable mental state." (People v. Samaniego (2009) 172 Cal.App.4th 1148, 1164-1165.)
Here, the trial court did not permit the jury to consider voluntary manslaughter instructions for Elizalde because the court believed that manslaughter was "personal" to Musselman. The mental state required for manslaughter is personal, but the mental state of each principal in a crime must be assessed individually. Thus, the trial court erred in preventing the jury from considering whether Elizalde acted in the heat of passion or in the belief that Musselman's life was in danger.
As the Supreme Court explained in McCoy, supra, 25 Cal.4th 1111, aider and abettor liability is premised on the aider and abettor's own mens rea. There was evidence which, if believed by the jury, could show that Elizalde acted in either an actual but unreasonable belief that Musselman's life was in danger or in the heat of passion.
Elizalde's testimony shows that she became aware of the fight after Gomez was out of the car. Thus, she would not necessarily have known who was the initial aggressor. In her view, Musselman was "getting his butt kicked" by Gomez, who weighed over 400 pounds. She testified that she was afraid for Musselman's life and that she intervened in the fight because she believed that Musselman could not protect himself. The trial court found this evidence sufficient to warrant an instruction on the defense of others, which requires an actual and reasonable belief in the need to defend another. A reasonable jury could also have found that although Elizalde acted in the actual belief that Musselman's life was in danger, such a belief was unreasonable. For example, the jury might have believed that a person as large as Gomez could have killed or seriously injured Musselman immediately if he wished to do so, and since Gomez did not do so, it would not be reasonable to fear death or serious injury from him as the fight continued. Conversely, the jury might have believed that someone as large as Gomez would be very slow-moving and it would not be reasonable to view him as serious threat to someone lighter and more agile. Thus, that the jury disbelieved Elizalde in connection with her evidence of traditional self-defense of another does not foreclose it finding imperfect self-defense of another.
If Elizalde actually but unreasonably believed that Musselman's life was in danger and that he needed to use deadly force to save himself, she could aid and abet Musselman's act of shooting, intending that he shoot to save his life.
We recognize that the Court in McCoy, supra, 25 Cal.4th 1111, did not consider whether imperfect self-defense could be asserted by someone other than the actual killer. We see nothing in McCoy to limit imperfect self-defense to the actual perpetrator as a matter of law. Such a reading would be inconsistent with the reasoning of McCoy, which does not make a sharp distinction between actual perpetrators and aiders and abettors. The Court in McCoy, supra, 25 Cal.4th at page 1120, pointed out, "[i]t is often an oversimplification to describe one person as the actual perpetrator and the other as the aider and abettor." The Court noted that, for example, in a "shooting case, one person might lure a victim into a trap while another fires a gun; in a stabbing case, one person might restrain the victim while the other does the stabbing. In either case, both participants would be direct perpetrators as well as aiders and abettors of the other. The aider and abettor doctrine merely makes aiders and abettors liable for their accomplices' actions as well as their own. It obviates the necessity to decide who was the aider and abettor and who the direct perpetrator or to what extent each played which role." (People v. McCoy, supra, 25 Cal.4th at p. 1120.)
The Court in McCoy did use the term "personal" to refer to imperfect self-defense, but it used that term to mean that a defendant actually have a mental state which would reduce or eliminate his culpability. In McCoy, both McCoy and Lakey were in the same car, firing at people on the sidewalk and being fired upon in return, "although it so happened that McCoy fired the fatal shots." (Id. at p. 1120.) Clearly, both men could have been acting in the actual but unreasonable belief in the need for self-defense. However, only McCoy introduced evidence, in the form of his own testimony, that he fired because he believed that his life was in danger. Lakey did not testify. (Id. at p. 1115.) Thus, there was no direct evidence of Lakey's mental state. "A jury could reasonably have found that Lakey did not act under unreasonable self-defense even if McCoy did." (Id. at p. 1122.) McCoy's mental state could not negate any malice Lakey had. Thus, the defense was "personal" to McCoy. (Id. at p. 1122.)
Here, Elizalde was entitled to instructions on voluntary manslaughter because there was evidence that she actually but unreasonably believed that Gomez was going to kill Musselman. Since she was not the actual killer, her intent could either be viewed as assisting Musselman in defending himself, or simply defending Musselman. Absent a personal belief by Elizalde that Musselman's life was in danger, however, she would not be entitled to voluntary manslaughter instructions. (See generally People v. McCoy, supra, 25 Cal.4th at p. 1119, fn. 2 [quoting conclusion of LaFave and Scott on Accomplice Liability that the liability of bystander who encourages victim of attack to shoot his attacker in self-defense should be determined by the bystander's mental state].) If Musselman did not have an actual belief in the need for self-defense, Elizalde could still have the necessary mental state for voluntary manslaughter. Technically her mental state considered alone would be imperfect defense of others rather than imperfect self-defense. (See People v. Randle, supra, 35 Cal.4th at p. 997 [imperfect defense of another is a form of voluntary manslaughter].) We recognize that the case before the Court in Randle involved a claim of imperfect defense of others by the actual killer. As with McCoy, supra, 25 Cal.4th 1111, we see no bar to the assertion of this claim by an aider and abettor under the appropriate factual circumstances. There is no authority requiring the imperfect defense of another to be invoked only by the killer.
CALCRIM No. 571, the standard instruction on perfect and imperfect defense of another, could easily have been modified for an aider and abettor by inserting three references to the perpetrator, as follows: "A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant [aided and abetted the perpetrator in the killing] of a person because the defendant acted in imperfect defense of another. [¶].... [¶] The defendant acted in imperfect defense of another if: [¶] 1. The defendant actually believed that [the perpetrator] was in imminent danger of being killed or suffering great bodily injury; [¶] AND [¶] 2. The defendant actually believed that the immediate use of deadly force [by the perpetrator] was necessary to defend against the danger; [¶] BUT [¶] 3. At least one of those beliefs was unreasonable."
Elizalde testified that Musselman was the love of her life. When she saw that Gomez appeared to be getting the better of Musselman in the fight, she became "upset." No one else was helping Musselman. She said, "What the F?" to David about the lack of assistance. Elizalde then "ran" to the fight to assist Musselman. She was not sure how many times she hit Gomez in the head. After Beefy was shot, Elizalde was "confused" and "didn't know what was going on." A reasonable jury could infer that she was provoked by the sight of Gomez getting the better of Musselman in the fight and acted out of intense emotion at seeing the man she loved being beaten up in a fight. (See People v. Breverman, supra, 19 Cal.4th at p. 163 [no specific type of provocation is required for voluntary manslaughter, and the passion aroused may be any violent, intense, high-wrought or enthusiastic emotion].)
If Elizalde was provoked by the sight of Gomez beating up on Musselman, and in the heat of passion encouraged or assisted Musselman to shoot Gomez, she could aid and abet Musselman's act of shooting, but do so without the malice necessary for murder. If Musselman was not provoked by Gomez, Elizalde, having herself been provoked, would have the necessary mental state for voluntary manslaughter. (See People v. Nero, supra, 181 Cal.App.4th at p. 516 ["'if S, in [a] sudden heat of passion, provides a gun to P, who calmly kills V, S may be guilty of voluntary manslaughter, although P is guilty of murder'"].)
b. Aiding and abetting – natural and probable consequences doctrine
Under the natural and probable consequences doctrine, a defendant may be liable not only for the criminal act she intended to aid and abet (the "target" crime) but also for any other crime actually committed by the perpetrator (the "non-target" crime). Under this doctrine, a defendant "need not have intended to encourage or facilitate the particular offense committed by the perpetrator. His knowledge that an act which is criminal was intended, and his action taken with the intent that the act be encouraged or facilitated, are sufficient to impose liability on him for any reasonably foreseeable offense committed as a consequence by the perpetrator." (People v. Prettyman, supra, 14 Cal.4th at p. 261, internal quotation marks omitted.)
An aider and abettor may be found liable under the natural and probable consequences doctrine of a lesser offense than the ultimate offense committed by the perpetrator. (People v. Woods (1992) 8 Cal.App.4th 1570, 1586-1588, cited with approval in McCoy.) Thus, "in determining aider and abettor liability for crimes of the perpetrator beyond the act originally contemplated, the jury must be permitted to consider uncharged, necessarily included offenses where the facts would support a determination that the greater crime was not a reasonably foreseeable consequence but the lesser offense was such a consequence. Otherwise, ... the jury would be given an unwarranted, all-or-nothing choice for aider and abettor liability." (People v. Woods, supra, 8 Cal.App.4th at p. 1588.) As the Court in Woods, noted, when a jury is faced with an unwarranted all or nothing choice, the jury may vote for the charged offense to avoid the absurd result of absolving an aider and abettor of any responsibility for a killing. (Id. at p. 1590 [reversing aider and abettor's conviction for first degree murder unless the People accept a reduction to second degree murder].)
Here, the target crime for purposes of the natural and probable consequences doctrine was assault with a firearm. The jury was instructed that murder could be a natural and probable consequence of assault with a firearm. The jury was not instructed that voluntary manslaughter could be a natural and probable consequence of the assault. The trial court gave the jury the possibility of convicting Musselman, the perpetrator, of murder or voluntary manslaughter. As we noted above, the court's rationale for not permitting the jury to consider voluntary manslaughter for Elizalde was that voluntary manslaughter was "personal" to Musselman. We do not agree with that conclusion.
The assault was not a charged offense.
The instructions given by the court permitted the jury to convict Elizalde only of murder under the natural and probable consequences doctrine, and then only if the jury found that Musselman committed murder. The instructions as a whole thus created the unfortunate possibility that the jury could convict Musselman of voluntary manslaughter and so be unable to convict Elizalde of any crime under the natural and probable consequences doctrine.
Under the natural and probable consequences doctrine, an aider and abettor is not required to share the perpetrator's mental state for non-target crimes committed by the perpetrator in order to be criminally liable. The only question is the foreseeability of the non-target crime, that is would "a reasonable person under like circumstances... recognize that the crime was a reasonably foreseeable consequence of the act aided and abetted. [Citation.] The finding will depend on the circumstances surrounding the conduct of both the perpetrator and the aider and abettor. [Citation.] (People v. Woods, supra, 8 Cal.App.4th at p. 1587.)
If the jury accepted Elizalde's account of the circumstances, it could have found that voluntary manslaughter under a heat-of-passion or unreasonable self-defense theory was a reasonably foreseeable consequence, but murder was not. Elizalde testified that she and Musselman went to Gonzalez's house to buy drugs, and that she was not expecting trouble. She got out of the car and spoke with some other women. She believed that Musselman was going to buy drugs. Elizalde's testimony shows that she became aware of the fight after Gomez was out of the car. At that point, Musselman was losing his fistfight with Gomez. Elizalde hit Gomez over the head with a handgun, thus committing assault with a deadly weapon. The prosecutor argued that Musselman did as well. Hitting Gomez with the guns did not stop him. Musselman then shot Gomez. It is reasonably foreseeable that a person losing a fight with a much larger opponent might come to unreasonably fear for his life and kill the other person. It is also reasonably foreseeable that the person might experience an intense emotion and kill the other person in the heat of passion. A jury could have found that under such circumstances, it was reasonably foreseeable to Elizalde that Musselman would kill from fear or anger, but not with malice. Thus, this is not a situation in which the evidence precludes the necessary included or lesser offense. (See People v. Woods, supra, 8 Cal.App.4th at p. 1593.)
Thus, she would not necessarily have known who was the initial aggressor. Musselman appears to have started the fight with Gomez either because Musselman could not find someone he was looking for or because of a drug deal gone bad. Both of these situations arose after Musselman got out of the car at the house. Musselman had no communication with Elizalde from the time period between his leaving the car and his calling her name after the fight was well underway.
c. Prejudice
The failure to instruct sua sponte on lesser included offenses is an error under state law and governed by the Watson standard of review. (People v. Blakeley (2000) 23 Cal.4th 82, 93.) If we considered the trial court's failure to instruct on manslaughter in isolation, we would find the error harmless. The jury had the option of convicting Elizalde of first or second degree murder. Generally, the fact that a jury convicts a defendant of first degree murder rather than second degree murder shows that any error in failing to instruct on the lesser included offense of manslaughter is harmless. (See People v. Prettyman, supra, 14 Cal.4th at p. 276 [by convicting appellant of first degree murder rather than second degree murder, jury necessarily rejected the possibility of manslaughter and so omission of manslaughter instructions was harmless].)
We do not consider the failure to instruct on manslaughter in isolation, however. As we discuss in section 6, below, a now-superseded version of CALCRIM No. 400 was given in this case, and there is a reasonable possibility that it dissuaded the jury from convicting Elizalde of second degree murder. Thus, we cannot rely on the jury's conviction of Elizalde for first degree murder rather than second degree murder to show that the omission of the manslaughter instructions was harmless.
We see a reasonable probability that the jury would have convicted Elizalde of manslaughter if properly instructed. This was an unusual case, in that apart from law enforcement personnel, every witness in this case had serious credibility issues. Reyes, the key prosecution witness, had seven prior convictions arising from five separate incidents. At trial, she claimed not to remember many of her statements to police, gave testimony that contradicted other statements to police and then denied making the statements to police and contradicted her own testimony. Ruiz and Villanueva both had one prior felony conviction and one prior misdemeanor conviction; the felony and misdemeanor convictions arose from separate incidents. At trial, Ruiz denied making statements to police about the gun at her house. Elizalde herself had two prior convictions arising from one prior incident. She gave a statement to police in which she essentially claimed not to have been present at the shooting and at trial she claimed that her police statement was a lie.
For example, at trial, Reyes testified that she was high at the time of the shooting and during two police interviews in 2004. She claimed that police never asked her if she was high. She was impeached with her statements to police denying she was high. Reyes also contradicted herself at trial, at one point testifying that she saw Gonzalez and Gomez using methamphetamine at the house the night of the shooting and then later testifying that she was in a car in front of the house and could not see them.
On the key issue of Elizalde's actions at the house on the night of the shooting, there was no real dispute. Her actions before the fight began in this case do not strongly show an intent to kill, much less premeditation and deliberation. They also do not strongly show an intent to assist Musselman in a preplanned killing. Although Musselman parked the car in a position which could facilitate escape, and Elizalde moved to the driver's seat, it is undisputed that she remained there only briefly before going off to stand with Reyes and others. Her actions indicate that she did not share Musselman's apparent concern that they be able to leave quickly. The fight between Musselman and Gomez started while Elizalde was talking to Reyes and others. It is undisputed that Elizalde only became involved after the fight was underway, at a time when Gomez appeared to be getting the better of Musselman. Although Elizalde apparently had or acquired a gun at that point, it is undisputed that she used it only to hit Gomez. She could have, but did not, fire the gun at Gomez. It was undisputed that Elizalde was in a romantic relationship with Musselman. It is reasonably probable that a correctly instructed jury would have found that her actions were motivated by her feelings for Musselman, and that she either actually but unreasonably believed that his life was in danger, or acted in the heat of passion at seeing him being beaten. Accordingly, the instructions as to Elizalde were prejudicial.
6. CALCRIM No. 400
As we mention in section 5, ante, part of Elizalde's claim of instructional error is her contention that the trial court erred in instructing the jury with a misleading version of CALCRIM No. 400. She contends that the error prevented the jury from considering any offense lesser than first degree murder, and the error was not harmless beyond a reasonable doubt. We cannot find the use of the now-superseded version of CALCRIM No. 400 harmless.
The version of CALCRIM No. 400 used in this case told the jury: "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 equally guilty of the crime whether he or she committed it personally or aided and abetted the perpetrator who committed it." (Emphasis added.) The trial court read CALCRIM No. 400 to the jury and it was included in the written packet of instructions. Jurors are presumed to follow instructions. (People v. Bradford (1997) 15 Cal.4th 1229, 1337; People v. Mills (2010) 47 Cal.4th 158, 196; People v. Wilson (2008) 44 Cal.4th 758, 803.)
Divisions Two and Three of this District Court of Appeal have recognized that the above-quoted version of CALCRIM No. 400 is misleading and at odds with the Supreme Court's holding in People v. McCoy, supra. (People v. Nero, supra, 181 Cal.App.4th at p. 518; People v. Samaniego, supra, 172 Cal.App.4th at pp. 1164-1165.) The "equally guilty" language has now been removed from CALCRIM No. 400. The Use Note for CALCRIM No. 400 now cites Samaniego, Woods and McCoy and states: "An aider and abettor may be found guilty of a different crime or degree of crime than the perpetrator if the aider and abettor and the perpetrator do not have the same mental state."
The Court in Samaniego, supra, 172 Cal.App.4th at page 1163, found that the instruction is misleading only in the most exceptional circumstances, and that the defendant had forfeited his claim of error by failing to request that the instruction be modified or clarified. The Court in Nero, supra, 181 Cal.App.4th at page 518, found that CALCRIM No. 400 is misleading in even unexceptional circumstances. We agree with the Court in Nero. We consider CALCRIM No. 400 pursuant to section 1259, which permits this Court to "review any instruction given, refused or modified, even though no objection was made thereto in the lower court, if the substantial rights of the defendant were affected thereby." We elect to do so in this case.
The version of CALCRIM No. 400 given in this case "misdescribes the prosecutor's burden in proving the aider and abettor's guilt of first degree murder by eliminating its need to prove the aider and abettor's (1) intent, (2) willfulness (3) premeditation and (4) deliberation, the mental states for murder." (People v. Samaniego, supra, 172 Cal.App.4th at p. 1165.) "An instruction that omits or misdescribes an element of a charged offense violates the right to a jury trial guaranteed by our federal Constitution, and the effect of this violation is measure against the harmless error test of Chapman v. California (1967) 386 U.S. 18...." (Ibid.) Thus, this Court can find the error harmless only if it determines beyond a reasonable doubt that the jury verdict would have been the same absent the error. (Neder v. U.S. (1999) 527 U.S. 1, 15.)
In the alternative, if the issue were viewed as the ambiguity of the instruction, we would determine, under People v. Watson (1956) 46 Cal.2d 836, whether there is a reasonable likelihood the jury misconstrued or misapplied the law in light of the instructions, record, and arguments of counsel. (People v. Breverman, supra, 19 Cal.4th at pp. 164-179; People v. Dieguez (2001) 89 Cal.App.4th 266, 276.) Under this test, the error was not harmless.
We see nothing to indicate that the jury necessarily resolved these issues under other instructions. The Court of Appeal in Samaniego found CALCRIM No. 400 harmless primarily because the jury in that case made true findings on a special circumstance allegation which required them to find, for each defendant, that he acted with the intent to kill. No similar finding was made in this case. The most that can be said is that the jury found that Elizalde did not act in reasonable defense of another.
The jury did find Musselman guilty of first degree murder, but the most credible version of the evidence is that his intent, planning and premeditation occurred after he arrived at Gonzalez's house. The only evidence to the contrary is the direction of the parked car. Although motive is not an element of murder, the evidence very strongly suggested that Musselman began the fight with Gomez either because Musselman could not find someone he was looking for or because of a drug deal gone bad. Both of these situations arose after Musselman got out of the car at the house. Intent, planning and premeditation would have occurred after the motive arose. Musselman had no communication with Elizalde from the time period between his leaving the car and his calling her name after the fight was well underway. Thus, the jury's finding that Musselman committed first degree murder does not indicate that they necessarily believed that Elizalde knew of and shared Musselman's intent, or herself premeditated and deliberated.
Although the prosecutor did not refer to CALCRIM No. 400 in argument, she did echo the language of that instruction to the jury, stating: "Aiding and abetting means that person may be guilty as either the perpetrator or as the aider and abettor. Whether they're the perpetrator or the aider and abettor does not matter. They are still equally guilty no matter what." Further, although the prosecutor repeatedly argued that the evidence showed that Musselman premeditated and deliberated, the prosecutor did not make a similar argument with respect to Elizalde and never clearly told the jury that it had to find that Elizalde personally premeditated and deliberated. During her rebuttal argument, the prosecutor discussed various scenarios with the jury, including one where the jury believed that prosecution witnesses but did not believe that Musselman and Elizalde went to the house with the intent to kill. In that case, the prosecutor told jurors, they could still find the defendants guilty of first degree murder. The prosecutor explained that the jury could find that if Musselman pulled out his gun, started hitting Gomez with it "and then decided 'I'm going to shoot him, ' that's long enough for premeditation, deliberation, and that act, ladies and gentlemen, was willful." There was, of course, no evidence that Musselman communicated any such secret premeditation and deliberation to Elizalde. The prosecutor then told the jury that if the jury believed the prosecution witnesses but did not believe that the defendants went to the house with an intent to kill, "defendant Elizalde is still guilty of first or second degree murder.... You believe the witnesses, it's the exact same scenario as defendant Musselman. Defendant Elizalde aided defendant Musselman in killing Leon Gomez. Therefore, she is guilty as an aider and abettor to first degree murder."
The California Supreme Court has recognized that an aider and abettor who acts with awareness of the direct perpetrator's intent to kill and with the intent to facilitate the killing, necessarily acts with a mental state at least approaching premeditation and deliberation. (People v. Lee (2003) 31 Cal.4th 613, 624; see also People v. Samaniego, supra, 172 Cal.App.4th at p. 1166 ["It would be virtually impossible for a person to know of another's intent to murder and decide to aid in accomplishing the crime without at least a brief period of deliberation and premeditation"].) Here, as we discuss, supra, there is evidence suggesting that Elizalde was not aware of such an intent on Musselman's part.
The jury was instructed on the natural and probable consequences doctrine of aiding and abetting as well as direct aiding and abetting. There is no way to know which theory the jury relied on in convicting Elizalde. (See People v. Chun (2009) 45 Cal.4th 1172, 1203 [when jury is given option of relying on two theories of guilt, one of which is legally correct but the other of which is legally incorrect, reversal is required unless the record demonstrates that the verdict was actually based on a valid ground].) Even if we were to assume that the jury relied on that doctrine to convict Elizalde of first degree murder, we could not find the error in giving CALCRIM No. 400 to be harmless. Here, the instruction on the natural and probable consequences doctrine told the jury only that it must find that "murder" was a natural and probable consequence of the assault. That instruction gave no guidance on determining the degree of the murder. Thus, the jury may well have looked to CALCRIM No. 400 for guidance on that determination. That one could view "equally guilty" as meaning equally guilty of a crime rather than equally guilty of the degree of the crime is not necessarily an invariable understanding of that term. "Equally guilty" can reasonably be understood as referring to the degree of the crime.
When the drafters of the CALCRIM instructions revised CALCRIM No. 400 to remove the "equally guilty" language, one of the cases that they cited in support of the revision was People v. Woods, supra, 8 Cal.App.4th 1570. As we discuss, ante, that case holds that an aider and abettor may be found liable under the natural and probable consequences doctrine of a lesser offense than the ultimate offense committed by the perpetrator. Thus, the CALCRIM drafters seem to have believed that the "equally guilty" language of CALCRIM No. 400 could be misleading even under the natural and probable consequences theory of aiding and abetting, at least as to the degree of murder.
As we discuss in section 5, ante, there was strong evidence that Elizalde acted emotionally, out of an unreasonable fear for Musselman's life or heat of passion at seeing him being beaten in a fight. The evidence of intent to kill, premeditation and deliberation was much weaker. Since the evidence to support a first degree murder conviction for Elizalde is far from overwhelming, we conclude that the court's error in instructing with an erroneous version of CALCRIM No. 400 was not harmless. If the People do not accept a reduction to voluntary manslaughter, Elizalde is entitled to a new trial.
7. Involuntary manslaughter
Elizalde also claims that the trial court erred in failing to give involuntary manslaughter instructions. We see no error in this decision.
Elizalde claims that a jury could have found that since she hit Gomez over the head with her gun, rather than firing the gun at him, she had no intent to kill. This simply shows that she did not intend to kill Gomez herself. By definition, an aider and abettor is not the direct cause of the victim's death. Further, Elizalde's act of hitting Gomez was an assault with a firearm in violation of section 245, which is not a proper target offense for involuntary manslaughter under the natural and probable consequences doctrine. (See People v. Huynh (2002) 99 Cal.App.4th 662, 678-679 [assault with a deadly weapon].)
Disposition
Appellant Musselman's conviction is affirmed.
Appellant Elizalde's conviction of first degree murder is reversed unless the People accept a reduction of the conviction to voluntary manslaughter. If, after the filing of the remittitur in the trial court, the People do not bring Elizalde to retrial on the murder count within the time limit set forth in section 1382, subdivision (a)(2) – 60 days unless waived by the defendant – the trial court shall proceed as if the remittitur constituted a modification of the judgment to reflect a conviction of voluntary manslaughter and shall resentence Elizalde accordingly.
I concur: MOSK, J.
Kriegler, J., Concurring and Dissenting.
When a woman and her boyfriend bring guns to a drug deal, park their vehicle in a way to effectuate escape, the woman distracts others while the boyfriend commits an unprovoked assault on the eventual murder victim, the woman uses her gun to bash the victim in the head before he is shot to death by her boyfriend, she flees with the boyfriend, disposes of her gun, and lies to the police about every aspect of her involvement, any reasonable trier of fact would find the woman acted with malice. The majority disagrees. I respectfully dissent from that portion of the majority opinion reversing the conviction of defendant Sarita Elizalde.
I concur in the affirmance of the judgment as to codefendant James Musselman.
The majority concludes that Elizalde’s first degree murder conviction must be reversed because the trial court refused to instruct on voluntary manslaughter on theories of imperfect or unreasonable defense of another and sudden quarrel or heat of passion. The majority finds the error prejudicial because the trial court also instructed pursuant to Judicial Council of California Criminal Jury Instructions (2006-2007) former CALCRIM No. 400 that all perpetrators of a crime, including an aider and abettor, are “equally guilty.” The fact is, the trial court properly instructed the jury and nothing in former CALCRIM No. 400 resulted in any prejudice to Elizalde. A review of the entire record reveals that any ambiguity in the challenged instruction played no role in Elizalde’s trial, as the prosecutor carefully analyzed Elizalde’s mental state on an individual basis and urged the jury to vote accordingly.
I. The Majority Opinion’s Characterization of the Evidence of Voluntary Manslaughter as “Strong”
The majority concludes there was “strong evidence” that Elizalde acted without malice, a determination that drives its analysis of error and prejudice in this case. I disagree. There is no reason to believe a future jury would find a lack of malice, considering the nature of Elizalde’s conduct before, during, and after the murder. Elizalde’s testimony was so preposterous that even codefendant James Musselman could not believe what he was hearing, interrupting the proceedings during her direct examination to ask, “What the fuck are you doing?”
There is certainly substantial evidence that Elizalde and Musselman committed a premeditated first degree murder. Apart from the evidence of first degree murder, the evidence conclusively establishes that Elizalde acted with implied malice, which would only require a reduction of the offense to second degree murder, rather than voluntary manslaughter. The jury disbelieved Elizalde’s testimony, as reflected in its rejection of traditional defense of another and the finding that she personally used a handgun in the offense. These findings, combined with the other evidence of guilt, including Elizalde smashing Leon Gomez in the head with a handgun, point unerringly to at least implied malice—the existence of an act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that her conduct endangers the life of another and who acts with conscious disregard for life. (People v. Knoller (2007) 41 Cal.4th 139, 143; People v. Phillips (1966)64 Cal.2d 574, 587.) The facts in this case minimally establish Elizalde’s “awareness of engaging in conduct that endangers the life of another....” (People v. Knoller, supra, at p. 143.)
I am at a loss to understand how the majority concludes there is a reasonable probability on retrial that a jury would return a verdict of voluntary manslaughter as opposed to second degree murder given the evidence of implied malice. The prosecutor, in argument, proposed a scenario in which the jury could find Elizalde guilty of second degree murder based on implied malice, but the jury rejected the analysis and opted for first degree murder. The jury’s verdict is not surprising in light of the evidence of planning—bringing guns and parking the car for escape; the joint conduct of Elizalde and Musselman in attacking Gomez; Elizalde’s flight and destruction of evidence; her outright lies to the police showing her consciousness of guilt; and her prior convictions, which undercut her credibility. Elizalde’s fate with any future jury will depend on her credibility and the facts of the offense, which point unerringly to the existence of malice.
What the record actually reveals, rather than a strong defense, is that Elizalde was a willfully false witness regarding where she obtained a gun, which permitted the jury to disbelieve the balance of her testimony under CALCRIM No. 226. (People v. Lawrence (2009) 177 Cal.App.4th 547 [jury may disbelieve witness who lies about a significant fact].) She made deliberately false statements to the police about every aspect of the case, reflecting her consciousness of guilt under CALCRIM No. 362. (People v. Hughes (2002) 27 Cal.4th 287, 335 [false statements are admissible to establish consciousness of guilt].) Elizalde fled the scene and suppressed evidence (the handgun), both indicating a consciousness of guilt. (People v. Cooper (1991) 53 Cal.3d 771, 833 [destruction of evidence shows consciousness of guilt]; People v. Williams (1997) 55 Cal.App.4th 648, 652 [flight demonstrates a consciousness of guilt].) She had prior felony convictions, which further diminished her credibility. (Pen. Code, § 788.) There is no reason to believe a trial with voluntary manslaughter instructions will result in anything other than another murder conviction.
Under CALCRIM No. 226 the jury was advised: “If you decide that a witness deliberately lied about something in this case, you should consider not believing anything that witness says.”
CALCRIM No. 362 stated in part: “If defendant Sarita Elizalde made a false or misleading statement relating to the charged crime, know the statement was false or intending to mislead, that conduct may show she was aware of her guilt of the crime and you consider it in determining her guilt.”
II. Voluntary Manslaughter Instructions Based on Unreasonable Defense of Another
The majority’s holding that the trial court erred in refusing to instruct on imperfect or unreasonable defense of another to reduce Elizalde’s culpability from murder to manslaughter is wrong on both the facts and the law.
I have serious reservations over whether the concept of imperfect defense of another is even a viable theory as applied to a non-killer who does not attempt to kill the victim. People v Randle (2005) 35 Cal.4th 987, 997 (overruled on other grounds in People v. Chun (2009) 45 Cal.4th 1172, 1201) recognizes imperfect defense of another may negate malice, but as to a defendant who personally kills. Elizalde did not kill Gomez and the prosecutor did not argue that she intended to kill, so it seems logically impossible that the jury could find that she killed with an honest but unreasonable belief in the need to defend Musselman. Other than concluding that it “sees nothing... to limit imperfect self-defense to the actual perpetrator as a matter of law” and its citation to a portion of People v. McCoy (2001) 25 Cal.4th 1111, 1120 (McCoy) that supports Elizalde’s conviction as a direct perpetrator of the murder, the majority does not explain how the defense would negate the intent to kill in a person who does not herself kill or attempt to kill.
Assuming imperfect defense of another may negate malice in someone who is not the killer and did not attempt to kill, there is no substantial evidence to support the theory in this case. Where defense of another is asserted, the jury looks at the case from the point of view of the person who comes to the aid of another. (People v Randle, supra, 35 Cal.4th at pp. 999-1000.) What Elizalde testified to, if believed, was traditional defense of another and nothing more. Elizalde’s testimony was that she did not see the fight begin, but she saw the love of her life losing a fight with a 400-pound man, so she went to his rescue by striking the victim in the head with a handgun. If the jury believed Elizalde, she was entitled to an acquittal based on traditional defense of another, and the jury was so instructed by the trial court pursuant to CALCRIM No. 3470. The jury disbelieved Elizalde, rejected the notion that she acted in defense of another, and found her guilty.
There was nothing improper in the trial court's decision to instruct on voluntary manslaughter as to Musselman but not as to Elizalde, as that is what McCoy required. McCoy recognizes that an aider and abettor, who did not present evidence of imperfect self defense, could be convicted of murder, even if the actual killer might be guilty only of voluntary manslaughter, because imperfect self-defense is personal as to a defendant. (McCoy, supra, 25 Cal.4th at p. 1122.)
The trial court, and not the majority, had it right—Elizalde presented evidence of traditional defense of another and the jury was instructed on that theory. The trial court had no obligation to instruct on imperfect defense of another, when the evidence established traditional defense of another or no defense at all. (People v. Szadziewicz (2008) 161 Cal.App.4th 823, 834 [“Where, as here, the defendant’s version of events, if believed, establish actual self-defense, while the prosecution’s version, if believed, negates both actual and imperfect self-defense, the court is not required to give the instruction” on imperfect self-defense]; People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1276 [“In short, we reject defendant’s contention the trial court was required sua sponte to instruct on imperfect self-defense because it instructed on perfect self-defense”].)
Moreover, there is no reason to believe the same jury that found Elizalde to be deceptive by rejecting traditional defense of another and convicting her of murder, would have nonetheless concluded she acted in unreasonable defense of Musselman. The jury’s verdict finding Elizalde guilty of first degree murder constituted a rejection of Elizalde’s version of the facts. It is difficult to imagine, on this record, that the jury would have returned a different verdict had it been instructed on imperfect defense of another. (People v. Manriquez (2005) 37 Cal.4th 547, 582 (Manriquez).)
The refusal to instruct on imperfect defense of another was neither error nor prejudicial.
III. Voluntary Manslaughter Instructions Based on Sudden Quarrel or Heat of Passion
The trial court is also faulted for failing to instruct on voluntary manslaughter on the basis that Elizalde assaulted the victim in a sudden quarrel or heat of passion. I disagree that there was error or prejudice. Elizalde testified her boyfriend was losing the fight and she came to his defense, not that she acted rashly or out of emotion. This is the key testimony of Elizalde on this issue:
“Q: Okay. And after you picked up the gun, did you do anything with it?
“A: I hit him over the head.
“Q: Who was it that you hit over the head?
“A: Beefy.
“Q: Why?
“A: Because he wouldn’t stop. He wouldn’t stop, and James couldn’t protect himself. By that point, he couldn’t protect himself. So I had to do something.”
“.
“Q: Were you ever afraid for James’s life?
“A: Yes, I was.
“Q: Were you afraid that James was going to be seriously hurt?
“A: Yes, I was. Nobody else would help.”
This is traditional defense of another, not sudden quarrel or heat of passion. (People v. Moye (2009) 47 Cal.4th 537, 555.) Elizalde’s testimony was that she acted to defend Musselman, and the jury was properly instructed on traditional defense of another, rather than sudden quarrel or heat of passion.
Even if the evidence were deemed sufficient to warrant an instruction on sudden quarrel or heat of passion, Elizalde cannot establish prejudice. The jury verdict of first degree murder necessarily rejected Elizalde’s claim of traditional defense of another and found that she either shared Musselman’s intent to kill or the victim’s murder was a natural and probable consequence of an assault with a firearm. (See McCoy, supra, 25 Cal.4th at p. 1118.) The rejection of second degree murder by the jury negated any possibility of a voluntary manslaughter verdict. (Manriquez, supra, 37 Cal.4th at pp. 582-583; People v. Prettyman (1996) 14 Cal.4th 248, 276 (Prettyman); People v. Kozel (1982) 133 Cal.App.3d 507, 525.) The trial court instructed on first and second degree murder, and the prosecutor specifically argued that “[i]f you take defendant Elizalde’s testimony as true, she is still guilty of first or second degree murder.” The prosecutor further argued “Elizalde is guilty of the second degree murder” when she aided Musselman if she acted with implied malice. The jury asked a question during deliberations regarding second degree murder. Second degree murder was an option in play at trial, it was rejected, and its rejection conclusively demonstrates there was no prejudice in the lack of voluntary manslaughter instructions on a sudden quarrel or heat of passion theory.
IV. Natural and Probable Consequences as a Basis for Voluntary Manslaughter
“We have described the mental state required of an aider and abettor as ‘different from the mental state necessary for conviction as the actual perpetrator.’ (People v. Mendoza [(1998)] 18 Cal.4th [1114, ] 1122 [(Mendoza)].) The difference, however, does not mean that the mental state of an aider and abettor is less culpable than that of the actual perpetrator. On the contrary, outside of the natural and probable consequences doctrine, an aider and abettor’s mental state must be at least that required of the direct perpetrator.” (McCoy, supra, 25 Cal.4th at pp. 1117-1118.) I disagree that Elizalde was entitled to voluntary manslaughter instructions on the natural and probable consequence theory of guilt.
Relying on People v. Woods (1992) 8 Cal.App.4th 1570 (Woods) for the proposition that an aider and abettor in a natural and probable consequences prosecution may be found guilty of a lesser crime than that of the actual killer, the majority concludes Elizalde was entitled to instructions on voluntary manslaughter. I disagree with reliance on Woods for reversal, as the result in Woods was that manslaughter instructions were not required. Woods is consistent with other authority holding that manslaughter instructions are not required in natural and probable consequences cases when the evidence, viewed objectively, shows that murder was a reasonable foreseeable offense.
The following is the pertinent portion of the Woods holding: “Even when lesser offense instructions are not required for the perpetrator because the evidence establishes that, if guilty at all, the perpetrator is guilty of the greater offense, the trial court may have a duty to instruct sua sponte on necessarily included offenses as to aider and abettor liability. If the evidence raises a question whether the offense charged against the aider and abettor is a reasonably foreseeable consequence of the criminal act originally aided and abetted 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 as part of the jury instructions on aider and abettor liability. Otherwise, as discussed in part I, ante, the jury would be given an unwarranted, all-or-nothing choice concerning aider and abettor liability. [¶] However, the trial court need not instruct on a particular necessarily included offense if the evidence is such that the aider and abettor, 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. [Citations.]” (Woods, supra, 8 Cal.App.4th at p. 1593, emphasis added.)
After reviewing the law, Woods held that instructions on voluntary manslaughter were not required. “In this case, the evidence established beyond question that second degree murder (i.e., an intentional killing in circumstances insufficient to establish deliberation and premeditation or a killing resulting from an intentional act inherently dangerous to human life committed with knowledge of, and conscious disregard for, the danger to human life) was a reasonably foreseeable consequence of the initial armed assaults on [the victims]. Because no evidence suggested that second degree murder ensuing from the armed onslaught was unforeseeable..., it was not necessary to instruct on included offenses less than second degree murder.” (Woods, supra, 8 Cal.App.4th at p. 1593, fns. omitted.)
As in Woods, no evidence shows that first or second degree murder was an unforeseeable consequence of Elizalde pistol whipping the victim. In the words of Woods, the offense of murder “was a reasonably foreseeable consequence of the criminal act originally contemplated, and no evidence suggests otherwise.” (Woods, supra, 8 Cal.App.4th at p. 1593, emphasis added.)
The majority goes astray by making a subjective assessment of foreseeability from the individual perspective of Elizalde. This is error. “The issue ‘is not whether the aider and abettor actually foresaw the additional crime, but whether judged objectively, it was reasonably foreseeable.’ (People v. Mendoza[, supra, ] 18 Cal.4th [at p.] 1133.)” (People v. Vasco (2005) 131 Cal.App.4th 137, 161.)
Musselman clearly acted with malice in attacking Gomez and ultimately shooting him to death. Elizalde joined in that attack. Manslaughter was not an objectively foreseeable consequence of Elizalde’s assault on Gomez with a handgun.
The majority laments in footnote 10 that the trial court’s instructions “created the unfortunate possibility the jury could convict Musselman of voluntary manslaughter, ” leaving the jury unable to convict Elizalde of any crime under the natural and probable consequences theory because Musselman did not commit a murder. The majority’s concerns are theoretical only, as that “unfortunate possibility” did not result—Musselman was not convicted of voluntary manslaughter. The premise of the assertion is wrong, in any event, as the jury would have had to address Elizalde’s guilt under a traditional aiding and abetting analysis by focusing on her individual mental state, even if the natural and probable consequences theory were inapplicable. (See McCoy, supra, 25 Cal.4th at pp. 1122-1123.)
V. The “Equally Guilty” Language in Former CALCRIM No. 400
Having concluded that the failure to instruct on voluntary manslaughter “in isolation” was harmless error, the majority then finds reversible error in former CALCRIM No. 400, citing People v. Samaniego (2009) 172 Cal.App.4th 1163 (Samaniego) for the proposition that the instruction misstates an element of the charged offense to the extent it advises the jury that all persons who participate in a crime, including an aider and abettor, are “equally guilty.” I disagree that reversal is in order, as any issue pertaining to the language of former CALCRIM No. 400 was forfeited by Elizalde’s failure to object. The contention also fails on the merits, as a thorough review of the prosecutor’s argument demonstrates the case was never tried on the theory Elizalde had to be convicted of the same degree of murder as Musselman.
Former CALCRIM No. 400 is generally a correct statement of law, because a person found to be an aider and abettor is guilty, as is the actual perpetrator of a crime. (Pen. Code, § 31.) The ambiguity in the instruction arises as to the level of culpability of an aider and abettor, which may vary from that of a perpetrator, at least in homicide cases. (McCoy, supra, 25 Cal.4th at pp. 1119-1120.) Thus, the ambiguity in former CALCRIM No. 400 is not as to guilt, but as to the degree of guilt. Determination of whether that ambiguity played any role in a jury’s verdict requires analysis of how a case was presented.
A. Forfeiture
Elizalde did not object to the instruction or request a modification, and the Attorney General argues the contention is forfeited. The majority chooses not to follow that portion of Samaniego holding that former “CALCRIM No. 400 is generally an accurate statement of law, though misleading in this case. Samaniego was therefore obligated to request modification or clarification and, having failed to have done so, forfeited this contention.” (Samaniego, supra, 172 Cal.App.4th at p. 1163.) Instead, the majority follows the decision in People v. Nero (2010) 181 Cal.App.4th 504, 518 (Nero) for the proposition “that even in unexceptional circumstances... [former] CALCRIM No. 400 can be misleading” and there is no need for an objection.
Our Supreme Court has not yet spoken to the variance between the holdings in Samaniego and Nero. The conclusion in Nero that former CALCRIM No. 400 is misleading in unexceptional circumstances seems incorrect. In most aiding and abetting cases, the aider and abettor does share the intent of the perpetrator. The potential ambiguity with former CALCRIM No. 400 exists only in exceptional cases.
In any event, the situation in Nero is easily distinguished from our case. The jury in Nero specifically asked the trial court if an aider and abettor could be convicted of a lesser crime, and the trial court misleadingly twice reread the “equally guilty” language to the jury. (Nero, supra, 181 Cal.App.4th at p. 518.) In contrast to Nero, this case was not tried on the misleading theory that Elizalde had to be convicted of the same degree of murder as Musselman. I would follow Samaniego.
B. The Prosecutor Urged the Jury to Individually Judge Elizalde’s Guilt
The prosecutor did not try this case on the theory Elizalde was automatically guilty of the same offense as Musselman. To the contrary, the prosecutor went to great lengths to explain to the jury how to resolve Elizalde’s guilt on an individual basis. The following is the pertinent portion of the prosecutor’s closing argument.
“Let’s turn to defendant Elizalde and again what do you believe or what do you think is true. Same thing with defendant Musselman. If you take the People’s witnesses as accurate, that they went there with the intent to kill, defendant Elizalde is guilty of first degree murder.
“If you take the People’s witnesses as true and accurate but feel they didn’t have the intent to go there, defendant Elizalde is still guilty of first or second degree murder. And if you take defendant Elizalde’s testimony as true, she is still guilty of first or second degree murder. You believe the witnesses, it’s the same exact scenario as defendant Musselman. Therefore, she is guilty as an aider and abettor of first degree murder.
“Scene two—you believe the witnesses but feel as though they didn’t have the intent to go there and kill Leon Gomez, she is still guilty of first degree murder because during the fight she intended to aid defendant Musselman when he premeditated and pulled out his gun, whacked Leon Gomez on the head, and then willfully and with deliberation shot and fired that gun killing Leon Gomez. Again, willful, premeditation, deliberate. That, ladies and gentlemen, makes defendant Elizalde just as guilty as defendant Musselman under an aider and abettor theory.
“Scene two-B—defendant Elizalde is guilty of the second degree murder because during the fight she intentionally aided defendant Musselman who fired his weapon without regard for Leon Gomez. And this again under an implied malice theory which is second degree murder, and again defendant Elizalde is just as guilty as defendant Musselman even though she did not pull the trigger. She aided that killing by beating Leon Gomez on the head.
“Finally, scenario two-C—defendant Elizalde is guilty of a first or second degree murder based upon a natural and probable consequences doctrine theory. I went over this in detail on Friday, but the bottom line is if you find defendant Elizalde guilty of assault with a firearm, which I submit to you each and every element has been met, the act of Miss Elizalde picking up the gun and striking Mr. Gomez on the head willfully and not in self-defense that is an assault with a firearm.
“.
“Assume you believe defendant Elizalde’s testimony. She is still guilty of first or second degree murder, and again it’s based on the natural and probable consequences doctrine. Assume you take everything she said as true. She went in there. She beat Mr. Gomez on the head. During that he was killed, and a reasonable person should know that a natural and probable consequence of assault with a firearm is murder.”
Because former CALCRIM No. 400 is, at worst, potentially ambiguous (Samaniego, supra, 172 Cal.App.4th at p. 1163), the only issue is whether there is a reasonable likelihood the jury would have applied the instruction in an improper way. (Prettyman, supra, 14 Cal.4th at p. 272.) The arguments of the prosecutor in this case make clear the instruction was not used to tie Elizalde’s fate to that of Musselman. Because the prosecutor did not make improper use of former CALCRIM No. 400, “it is highly unlikely the jury relied on that rule” (Prettyman, supra, at p. 273) in convicting Elizalde of first degree murder, and any error is harmless.
Assuming former CALCRIM No. 400 is not merely ambiguous, but is erroneous on its face, the error is not prejudicial. Although the argument of counsel cannot cure an instructional error, if the error is negated in argument, the argument can demonstrate the jury was not misled. (People v. Rogers (2006) 39 Cal.4th 826, 869-870; People v. Fudge (1994) 7 Cal.4th 1075, 1111.) At no point did the prosecutor suggest that if Musselman committed first degree murder, and he was aided by Elizalde, the jury was required to convict her of first degree murder. The prosecutor’s argument that the jury could convict Elizalde of first or second degree murder was not tied to whatever verdict the jury reached as to Musselman. In regards to aiding and abetting liability, the prosecutor did no more than correctly state the law—an aider and abettor is every bit as guilty as a direct perpetrator.
The record gives every indication that Elizalde’s guilt was determined on an individual basis. The jury asked a question during deliberations about second degree murder, and the trial court’s response did not suggest in any way that Elizalde could not be convicted of second degree murder if the jury found Musselman guilty of murder in the first degree.
VI. Publication of the Opinion
This opinion meets the standards for publication. I respectfully disagree with my colleagues’ determination to proceed with an unpublished opinion despite the mandatory directives of rule 8.1110 of the California Rules of Court. The opinion should be certified for publication because it: (1) “[e]stablishes a new rule of law” as the first case to apply imperfect defense of another to a defendant who does not kill or attempt to kill (Cal. Rules of Ct., rule 8.1110(c)(1)); (2) “[a]pplies an existing rule of law to a set of facts significantly different from those stated in published opinions, ” by applying the holding in Nero, supra, 181 Cal.App.4th at page 518 to a set of facts in which the jury does not ask if an aider and abettor may be convicted of a different degree of murder than the killer (Cal. Rules of Ct., rule 8.1110(c)(2)); (3) “explains or criticizes with reasons given an existing rule of law” by refusing to follow the clear forfeiture holding in Samaniego, supra, 172 Cal.App.4th at page 1163 (Cal. Rules of Ct., rule 8.1110(c)(3)); and (4) “[i]s accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law” because trial judges and the authors of the standard jury instructions ought to be aware of this extension of the law in order to avoid the errors the majority identifies in this case (id., rule 8.1110(c)(9)).
VII. Conclusion
The experienced trial judge properly instructed the jury in this case. There is no reasonable possibility or probability of a more favorable result for Elizalde on a retrial. At a minimum, there is absolutely no justification to reduce this conviction to anything less than second degree murder. Elizalde received a fair trial and suffered no prejudice from the instructions given. Her conviction should be affirmed.