Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BA263278 Norm J. Shapiro, Judge.
Donald R. Tickle, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Victoria B. Wilson and Ryan M. Smith, Deputy Attorneys General, for Plaintiff and Respondent.
ALDRICH, J.
Defendant and appellant Timothy J. Trujillo appeals from the judgment entered following a jury trial that resulted in his conviction for second degree murder. Trujillo was sentenced to a prison term of 35 years to life.
Trujillo contends the trial court abused its discretion by allowing the jury to view the crime scene, and committed a variety of instructional errors. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. Facts.
a. Prosecution’s case.
Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1,11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues presented on appeal established the following. In early December 2003, victim Mario Alvarado, Jorge Lopez, and Jorge Munoz were in custody and housed in the same cell at the Men’s Central Jail in Los Angeles. They were not affiliated with a criminal street gang.
Trujillo was placed in the same cell as the men. He was known as a member of the South side gang, and had his name tattooed on his back. When Trujillo was placed in the cell, he stayed up all night drinking “pruno” (inmate-made alcohol). The next morning Trujillo offered Alvarado a drink of pruno and asked him to sing some Spanish songs Alvarado had been singing the previous evening. Alvarado sang briefly, but then stopped. Trujillo became angry and pushed Alvarado. Alvarado jumped on his bunk, but Trujillo pulled him off and punched him repeatedly, causing his face to become red and swollen. Alvarado did not fight back, but attempted to cover himself. When inmates in the other cells asked what was happening, Trujillo yelled, “ ‘These paisas don’t want to fight.’ ” After a few minutes, sheriff’s deputies came to the cell. Alvarado and Trujillo acted as if nothing had happened. Deputies pulled Alvarado out of the cell and returned him after approximately 10 minutes. The deputies then removed Trujillo from the cell.
Testimony indicated that “paisa” was a term used to refer to recent immigrants who were not gang members.
On December 9, 2003, a group of inmates, including Trujillo, was taken to the jail’s “laundry room” prior to being moved to the nearby Inmate Reception Center (hereinafter sometimes IRC). While waiting in line, Trujillo and another inmate punched a third inmate several times. Trujillo looked intoxicated and extremely angry.
Inmates in the Los Angeles County jail system are processed through the IRC when entering into the jail system, when being transferred to and from various jail facilities, and when being released after serving their sentences.
The inmates were then walked to the holding cells at the IRC. Trujillo and Alvarado were both placed in cell 215. Cell 215 was 16 feet wide by 13 feet deep. A toilet and sink were located on the west side, shielded by a privacy wall that was 3 feet, 6 inches tall. Cells 216 and 218 were located across a 12-foot wide, well-lit hallway. Each cell had a window, and it was possible to see through the windows into cell 215 from cells 216 and 218. Cell 215 was crowded with between 25 to 40 inmates.
Shortly after Alvarado was placed in the cell, Trujillo called him a “paisa” and a rat. Trujillo and several other inmates surrounded and punched Alvarado repeatedly. Alvarado fell to the ground, where the inmates kicked and stomped him, including on his head and face. He curled into a ball on the floor to protect himself, to no avail. The beating rendered Alvarado unconscious. Alvarado’s breathing became labored. Trujillo and another man dragged Alvarado to the toilet area, behind the low privacy wall. Trujillo continued to kick and stomp Alvarado. During the attack he stated that Alvarado was one of the reasons he was facing “ ‘fifty to life’ ” and that he “must die.” Trujillo and other inmates forced Alvarado’s body into the toilet area, folding and pressing on the body. Trujillo mopped up the blood around Alvarado with a shirt, and threw it on top of Alvarado. Trujillo was the main aggressor in the attack.
The attack was witnessed and described by two inmates who had been in cell 215, and by two others who had been in cells 218 and 216, respectively. An inmate in cell 217, which was adjacent to cell 215, heard, but could not see, the attack. When the inmates from cells 215 and 217 were consolidated into cell 215 approximately two hours later, an inmate from cell 217 attempted to use the toilet. He observed Alvarado lying face down in the toilet area, with his head “bashed in.” There was blood spattered on the toilet privacy wall, and bloody clothing was partially covering Alvarado.
Most of the inmates were then removed from cell 215 and the other cells and sent to other locations. Trujillo and other inmates were transported to the Pitchess Detention Center (also known as “Wayside”). The deputies who rounded up the inmates for transport did not notice Alvarado’s body in the toilet area. Some inmates remained behind in the cell after Trujillo and others were transported.
Alvarado’s body was discovered at approximately 11:00 p.m. that night. He had suffered extensive injuries. There were multiple abrasions and contusions on his head, chest, arms, eyes, eyelids, shoulders, and back. There were multiple lacerations to his lips. Blood vessels had ruptured in his upper chest. Patterned contusions, made from a shoe or inmate slipper, were on his back. His neck muscles, as well as his scalp, had hemorrhaged. The bone and cartilage associated with the trachea, thyroid, and circoid were fractured, including his hyoid bone. There were subdural hemorrhages in his brain, including the frontal lobes. The internal injuries were caused by the pressure from kicks or blows. He had been attacked with enough force to penetrate through four layers of neck muscle. The cause of death was blunt force trauma to the head and neck, and asphyxia.
b. Defense case.
Computerized records showed that one of the People’s witnesses had not been housed in the IRC module at the jail, but remained in another cell. However, it was possible that the inmate was housed in the IRC without it being noted on the computerized record.
At approximately 7:00 p.m., Deputy Susan Pickles-Streater and her partner arrived with a bus to transport the inmates. They consolidated the inmates from cells 215 and 217 into one cell for roll call. Pickles-Streater testified that she examined both cells but did not see Alvarado’s body.
Another inmate, who was not transferred on the bus to Wayside but remained behind in cell 215, had recent scratches on his face, chest, and stomach.
The clothing of inmates who had been housed in cell 215 was collected and examined for blood. Bloodstains were found on Trujillo’s clothing. Blood on Trujillo’s shirt was his own, and blood on his pants was neither his nor Alvarado’s. Blood on Trujillo’s shoe could have been either Trujillo’s or Alvarado’s.
The coroner estimated that the time of death was between 9:00 and 11:20 p.m. Trujillo was transported on the bus to Wayside and, according to records, was logged in as arriving there at 8:52 p.m.
Inmate Kevin Ballard saw the attack on Alvarado from cell 218, and did not see Trujillo participate. Another inmate identified 23 persons as being possibly involved in the attack, but did not recall whether Trujillo was one of them.
2. Procedure.
Trujillo was tried by jury. His first jury deadlocked, and the trial court declared a mistrial. Upon retrial, the jury acquitted him of first degree murder, but found him guilty of second degree murder (Pen. Code, § 187, subd. (a)). Trujillo waived his right to a jury trial on prior conviction allegations. The trial court found Trujillo had suffered a prior conviction for burglary, a serious or violent felony (§§ 667, subds. (a)(1), (b) – (i), 1170.12, subds. (a) – (d)) and had served four prior prison terms within the meaning of section 667.5, subdivision (b). Trujillo’s Romero motion and motion for a new trial were denied. The trial court sentenced Trujillo to a term of 35 years to life in prison. It imposed a restitution fine, a suspended parole restitution fine, and a court security assessment. Trujillo appeals.
All further undesignated statutory references are to the Penal Code.
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
DISCUSSION
1. The trial court did not abuse its discretion by allowing the jury to view the crime scene.
a. Additional facts.
During trial, the prosecutor moved to have the jury view the holding cell area where the murder took place. Defense counsel objected that a jury view would be misleading unless the conditions at the time of the murder were duplicated, i.e., “there were forty inmates of comparable size and clothing placed into” the holding cell. The prosecutor responded that the purpose of the view was not to recreate the “exact conditions of the crime or recreate the crime,” an impossibility because the attorneys did not know the precise movements of the persons who had been in the holding cells. Instead, the purpose was to have the jury see the layout of the holding cells in order to demonstrate the eyewitnesses’ possible vantage points. The prosecutor represented that the jurors in the first trial had stated that “they didn’t understand how [the People’s] eyewitnesses could see across the hall.” The prosecutor explained, “if you are standing in the jail cells, your view across the hall is different than it looks in pictures or even on video . . . .” (Italics added.) Furthermore, the People had had difficulty taking photographs of the view through the windows. The windows were covered with lines and a film that caused a reflection in the photographs, making the windows appear blurry. The prosecutor opined, “this is a neutral viewing. It could benefit either side.”
Defense counsel countered that former jurors had indicated to him that the key issue was whether the witnesses’ views were blocked because of other inmates standing in the way. He reiterated that if the prosecutor’s request for a view was granted, “we should put forty people in that cell so they can see how crowded that cell was.”
The trial court granted the request for the jury to view the crime scene, ruling it was “appropriate.” The court had observed the photographs in question, and confirmed that they did “create a situation where one would think there would be some difficulty seeing clearly through the series of windows . . . .” The court pointed out that the parties could address during argument and witness examination the question of whether other inmates had blocked the view through the windows on the date of the murder.
Prior to the jury traveling to the IRC, the court informed jurors that the view was “not an attempt to recreate any scene. It’s being done so you’ll be able to understand the view from various points” in the configuration of cells. “It’s really done for that purpose and that purpose only. I want you to keep in mind, because I want to be fair to both sides here, I am told, when we go up there, we will be the only people up there, so keep in mind, and the attorneys will certainly discuss this with you in argument at the conclusion of the case, that this was not an empty corridor at the time when all these events occurred. [¶] There were people in the various cells, standing, sitting, and whatever. We are not trying to recreate that. We just want to be able to take a look at these windows and give you an opportunity to see what you can see.”
Once at the IRC, the jurors were told they could “go into each cell, that you can look around the cell, you can look at the windows as they cross the hall, and get a general picture of the scene.” Defense counsel suggested, “maybe we could put nine people in the front of the cell number 215.” The prosecutor countered that whether nine people were obstructing the view through the window was a “disputed fact in the case.” The trial court pointed out that it had already admonished the jury that the scene was not being recreated and that there were, at the time of the crime, people in the cells. Jurors entered cells 215, 216, 217, and 218. When a juror asked if someone could sit on a bench, the court conferred with both counsel and denied the request. It reminded the jury, “Yesterday, as I told you, the principal reason for our visit to the jail was to give you, number one, a better perspective as to the proximity of the cells and the clarity of the glass. That was our principal reason for bringing you over here today. [¶] If we wanted to attempt to recreate the scene, that would require, obviously, other people and a staging, which we weren’t inclined to do because there is no way we can actually recreate the scene of December 2003 the way it was . . . .”
b. Discussion.
Section 1119 provides in pertinent part: “When, in the opinion of the court, it is proper that the jury should view the place in which the offense is charged to have been committed, or in which any other material fact occurred, or any personal property which has been referred to in the evidence and cannot conveniently be brought into the courtroom, it may order the jury to be conducted in a body, in the custody of the sheriff or marshal, as the case may be, to the place, or to the property, which must be shown to them by a person appointed by the court for that purpose . . . .” A court’s ruling on a party’s motion for a jury view is reviewed for abuse of discretion, i.e., “whether the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that results in a manifest miscarriage of justice [citation]. ‘When the purpose of the view is to test the veracity of a witness’s testimony about observations the witness made, the trial court may properly consider whether the conditions for the jury view will be substantially the same as those under which the witness made the observations, whether there are other means of testing the veracity of the witness’s testimony, and practical difficulties in conducting a jury view.’ [Citation.]” (People v. Lawley (2002) 27 Cal.4th 102, 158; People v. Kraft (2000) 23 Cal.4th 978, 1053; People v. Williams (1997) 16 Cal.4th 153, 212.)
We discern no abuse of discretion here. Whether and how accurately the eyewitnesses could see the attack on Alvarado from their vantage points in other cells was a crucial issue. According to the prosecutor, photographs and video footage were inadequate because of difficulties photographing through the glass windows in each cell, and because they could not accurately demonstrate to jurors the view from one cell into another. The trial court viewed the photographs in question and agreed with the prosecutor. Under these circumstances, we cannot say the trial court abused its discretion by authorizing the crime scene view.
Trujillo argues that the jury view of the crime scene was misleading and violated his due process rights. He urges that the view favored the prosecution because the circumstances had materially changed, i.e., the cells were empty when the jury viewed the scene, but were crowded with inmates when the crime occurred, giving the jury a misleading impression that the eyewitnesses had an unobstructed view into cell 215. Furthermore, he contends that the cell layout was sufficiently described to the jury through diagrams and photographs, making the view unnecessary. In support of his contention, Trujillo cites several cases in which trial courts’ denials of defendants’ motions for a jury view of the crime scene were upheld. (See People v. Williams, supra, 16 Cal.4th at pp. 212-213; People v. Fudge (1994) 7 Cal.4th 1075, 1104-1105; People v. Robinson (1970) 5 Cal.App.3d 43, 47; People v. Mooring (1982) 129 Cal.App.3d 453, 460; People v. Brown (1981) 119 Cal.App.3d 116, 135.)
We are unpersuaded. Unlike in the cases cited by Trujillo, the relevant aspects of the scene in the instant case – i.e., the layout of the cells, and configuration and clarity of the windows – were substantially the same as when the crime occurred. (Cf. People v. Williams, supra, 16 Cal.4th at pp. 212-213 [only purpose of crime scene visit would have been to illustrate relative distances and acquaint jury with foliage, which might have been different at time of requested view]; People v. Fudge, supra, 7 Cal.4th at p. 1105 [where only purpose of crime scene view was to show that inmate service area was larger than witness had described, diagrams would have been sufficient]; People v. Brown, supra, 119 Cal.App.3d at p. 135 [only purpose of requested jury view was to assist jurors in “understand[ing] the proportions” of crime scene]; People v. Robinson, supra, 5 Cal.App.3d at p. 48 [jury view of alley was properly denied because of torrential rainstorms during trial, and because the lighting would have been different, in that the crime occurred before dawn]; People v. Mooring, supra, 129 Cal.App.3d at p. 460 [motion denied because of difficulties transporting the jury, because traffic conditions at the scene would have been different on date and time of offense, and because all necessary information could be elicited through witnesses].)
The parties stipulated that a “bubble” mirror present at the time of the jury view had been installed after the incident, and that a clear back window had been “frosted” and opaque at the time of the incident. Trujillo does not premise his claim of error on these differences.
Even assuming arguendo that the trial court erred by allowing the jury view, there was no manifest miscarriage of justice. (People v. Lawley, supra, 27 Cal.4th at p. 158.) The jury was well aware, by virtue of the undisputed evidence presented at trial, that the cells were crowded with inmates at the time of the killing. The jury was repeatedly reminded of these differences by the trial court both before and during the view. Reasonable jurors could not have missed the fact that the presence of the other inmates could have affected the ability of the eyewitnesses to see what transpired in cell 215. We are confident that the jury was not mislead.
2. Purported instructional errors.
a. Refusal to give a third party culpability instruction.
(i) Additional facts.
Trujillo requested that the jury be instructed on third party culpability, as follows: “ ‘Evidence has been offered that another inmate or inmates perpetrated the charged offense. It is not required that the defendant prove this fact beyond a reasonable doubt. [¶] In order to be entitled to a verdict of acquittal, it is only required that such evidence raise a reasonable doubt in your mind of the defendant’s guilt.’ ”
The trial court refused the proffered instruction, concluding it was “a bit misleading” because Trujillo was being tried on an aider and abettor theory. It observed, “the People’s theory is that the defendant and others participated, and the defendant is being tried as a participant.” The trial court further pointed out that the jury would be instructed with CALJIC No. 2.11.5 regarding unjoined perpetrators of the same crime.
(ii) Discussion.
Trujillo contends the trial court’s refusal to give the requested pinpoint instruction violated his due process and Sixth Amendment rights to present a complete defense. He posits that there was sufficient evidence to support the requested instruction, the trial court erred by evaluating the evidence in light of only the prosecution’s case, and counsel’s argument could not substitute for the instruction. We are unpersuaded.
A trial court must sua sponte instruct the jury on general principles of law that are commonly or closely and openly connected to the facts and that are necessary for the jury’s understanding of the case. (People v. Abilez (2007) 41 Cal.4th 472, 517; People v. Montoya (1994) 7 Cal.4th 1027, 1047; People v. Breverman (1998) 19 Cal.4th 142, 154.) “As a general proposition a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” (Mathews v. United States (1988) 485 U.S. 58, 63.) Upon request, the trial court must give an instruction that “pinpoints” the defense theory, where the requested instruction is supported by substantial evidence and is not argumentative or duplicative. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 99; People v. Gutierrez (2002) 28 Cal.4th 1083, 1142; People v. Hughes (2002) 27 Cal.4th 287, 361; People v. Earp (1999) 20 Cal.4th 826, 886.) In determining whether an instruction is required, the trial court does not weigh the credibility of the defense evidence, but only whether there was evidence which, if credited by the jury, was sufficient to raise a reasonable doubt. (People v. Salas (2006) 37 Cal.4th 967, 982.)
A criminal defendant may introduce evidence of third party culpability that raises a reasonable doubt as to his guilt, if the evidence consists of direct or circumstantial evidence linking the third person to the crime. (People v. Abilez, supra, 41 Cal.4th at p. 517.)
Here, the People do not dispute that there was sufficient evidence to support the instruction. Instead, they urge that the California Supreme Court has disapproved the instruction requested by Trujillo in People v. Earp, supra, 20 Cal.4th at pages 886-887. The People are incorrect. Earp did not disapprove the particular instruction requested here. Nonetheless, Earp and other cases have made clear that the requested instruction is often unnecessary, and in any event its omission is nonprejudicial.
People v. Abilez, supra, 41 Cal.4th at page 517, found the trial court did not err by failing to sua sponte instruct on third party culpability. Abilez reasoned, “The jury was instructed that defendant was presumed innocent and that to convict him, the jury must find him guilty beyond a reasonable doubt. Had the jury entertained a reasonable doubt that defendant sodomized and killed the victim and instead believed [a third party, Vieyra] committed those crimes, presumably it would have acquitted defendant. (Assuming, of course, that it also found he did not aid or abet those crimes.) Thus, no special instruction on third party culpability was necessary to apprise the jury of the pertinent legal principles and, contrary to defendant’s argument, the instructions given do not suggest he had the burden to prove Vieyra was guilty before he could reap the benefit of the jury’s doubt about his own guilt.” (Ibid.; see also People v. London (1988) 206 Cal.App.3d 896, 908 [trial court did not err by refusing to instruct jury that defendant did not need to prove another person committed the crime; CALJIC Nos. 2.90 and 2.91 adequately conveyed this principle to the jury].)
In Earp, the defendant was charged with murdering and sexually assaulting a baby. His theory was that another person had committed the crimes, and he requested an instruction conceptually identical to the one requested by Trujillo. Earp explained, “Even assuming that this proposed instruction accurately pinpointed the defense theory, defendant suffered no prejudice from the trial court’s refusal to give it. The jury was instructed under CALJIC No. 2.90 that the prosecution had to prove defendant’s guilt beyond a reasonable doubt, and the jury knew from defense counsel’s argument the defense theory that Dennis Morgan, not defendant, had committed the crimes. Under these circumstances, it is not reasonably probable that had the jury been given defendant’s proposed pinpoint instruction, it would have come to any different conclusion in this case.” (People v. Earp, supra, 20 Cal.4th at p. 887.)
Here, as in the foregoing cases, the jury was instructed with CALJIC Nos. 2.90 and 2.91. The former provided in pertinent part, “A defendant in a criminal action is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to a verdict of not guilty. This presumption places upon the People the burden of proving him guilty beyond a reasonable doubt.” CALJIC No. 2.91 provided, “The burden is on the People to prove beyond a reasonable doubt that the defendant is the person who committed the crime with which he is charged. [¶] If, after considering the circumstances of the identification and any other evidence in this case, you have a reasonable doubt whether defendant was the person who committed the crime, you must give the defendant the benefit of that doubt and find [him] not guilty.” Further, the court instructed with CALJIC No. 2.11.5, which provided, “There has been evidence in this case indicating that a person or persons other than the defendant were or may have been involved in the crime for which that defendant is on trial. [¶] There may be many reasons why those persons are not here on trial. Therefore, do not speculate or guess as to why the other person or persons are not being prosecuted in this trial or whether they have been or will be prosecuted. Your sole duty is to decide whether the People have proved the guilt of the defendant on trial.”
These instructions clearly conveyed the same information as did the rejected pinpoint instruction. “The jury needed to hear two principles: first, that it was the People’s burden to show beyond a reasonable doubt that the defendant was the perpetrator, and second, that the defendant did not need to prove anything at all. The combination of CALJIC Nos. 2.90 and 2.91 adequately conveyed these ideas. CALJIC No. 2.90 . . . explained that the defendant did not need to prove anything. CALJIC No. 2.91 related the concept of reasonable doubt to the issue of identity by explaining that ‘the burden is on the State to prove beyond a reasonable doubt that the defendant is the person who committed the offense with which he is charged.’ ” (People v. London, supra, 206 Cal.App.3d at p. 908.) Thus, while Trujillo is correct that as a general proposition, a defendant is entitled to an instruction as to any recognized defense for which there exists evidence sufficient for a reasonable jury to find in his favor (Mathews v. United States, supra, 485 U.S. at p. 63), there was no violation of that principle here. Moreover, the jury knew from defense counsel’s argument that the defense theory was that other inmates, not Trujillo, were responsible for the murder. (See People v. Earp, supra, 20 Cal.4th at p. 887.)
Holmes v. South Carolina (2006) 547 U.S. 319, cited by Trujillo, does not assist him. In Holmes, evidence that another man had, inter alia, confessed to the charged murder and rape was excluded under a South Carolina evidence rule that prohibited a defendant from introducing proof of third-party culpability if the prosecution introduced strong forensic evidence of the defendant’s guilt. (Id. at p. 321.) The United States Supreme Court found the rule violated the defendant’s right to present a complete defense. (Id. at p. 331.) Holmes has limited applicability here. In the instant case, Trujillo was not precluded from presenting or arguing evidence of third party culpability and, as we have explained, the instructions actually given were sufficient to apprise the jury that it could not convict if it had a reasonable doubt whether persons other than Trujillo were the actual assailants.
In sum, because the proffered instruction was largely duplicative of instructions given by the trial court, the trial court did not err by refusing it. For the same reason, even if the trial court erred by rejecting the instruction, Trujillo suffered no prejudice under any standard (Chapman v. California (1967) 386 U.S. 18; People v. Watson (1956) 46 Cal.2d 818, 836 .)
b. The trial court did not err by failing to instruct the jury on causation.
Trujillo contends the trial court erred by failing to sua sponte instruct the jury with CALJIC Nos. 8.55 and 3.41, both regarding causation. According to Trujillo, because “there was a substantial question of whether someone other than appellant committed the acts that caused the fatal injury to Alvarado,” causation instructions were required. We disagree.
CALJIC No. 8.55 provides, “To constitute [murder] [or] [manslaughter] there must be, in addition to the death of a human being, an unlawful act which was a cause of that death.”
Trujillo is correct that causation instructions must be given when the issue is whether the defendant’s act was the cause of the crime. (People v. Bernhardt (1963) 222 Cal.App.2d 567, 590-591.) However, unlike in the authorities he cites, causation was not an issue here. (Cf. People v. Sanchez (2001) 26 Cal.4th 834, 838 [defendant and rival gang member fired at each other, killing an innocent bystander, and it could not be determined which shooter’s bullet struck the victim]; People v. Bernhardt, supra, at p. 590 [defense evidence suggested the victim died of an embolism, a circumstance not caused by defendants].) In the instant case, there was no dispute that Alvarado was beaten and kicked to death by the men who attacked him in cell 215. There was no alternative possible cause of death unattributable to the beating, nor was there a possible intervening cause. Instead, the key issue for the jury was complicity. If the People’s evidence was credited, Trujillo was the instigator of the attack and one of the main participants. If, on the other hand, the jury disbelieved the People’s witnesses and concluded Trujillo was not one of the attackers, Trujillo could not have been found guilty. There was no evidence that Trujillo participated in the attack, but only marginally. Thus, causation instructions were unwarranted.
Moreover, Trujillo was tried as an aider and abettor. The jury was properly instructed on aider and abettor liability. (CALJIC No. 3.00 [principals defined], No. 3.01 [aiding and abetting defined].) “[A]n aider and abettor is a person who, ‘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; People v. Hill (1998) 17 Cal.4th 800, 851.) Thus, for Trujillo to be found guilty as an aider and abettor, it did not matter whether he struck a fatal blow, merely participated in the attack, or otherwise encouraged, instigated, or promoted the attack. The causation instructions at issue were inapplicable and would merely have confused the jury.
People v. Brasure (2008) 42 Cal.4th 1037, is instructive. There, the defendant and another man kidnapped and tortured the victim. Eventually they took the victim to an isolated recreation area, where they doused him with gasoline and set him alight. (Id. at p. 1042.) The defendant presented evidence that he stayed behind while the other perpetrator and possibly another man took the victim to the recreation area and burned him. On appeal, the defendant argued that the trial court’s failure to give causation instructions, including CALJIC Nos. 3.41 and 8.55, prevented the jury from determining whether the defendant’s own acts caused the victim’s death. Brasure agreed with the People’s argument that “causation was not an issue in this case.” (Id. at p. 1056.) That the victim’s death “resulted from an unlawful act was not in question; the only question was whether defendant was responsible for that act, a question to which the now disputed instructions would not have spoken.” (Ibid.) The court explained, “This is not a case involving a possibly independent intervening act the defense contends superseded proximate causation by the proven criminal acts. [Citation.] Rather, [the victim] undisputedly died as a direct result of defendant’s and his accomplices’ criminal acts; the question of defendant’s responsibility was, at most, one of complicity, not causation.” (Ibid.) Only if the jury believed that the victim died of his burns, and that the defendant had not been present when he was taken to the recreation area and set afire, could a question arise whether the defendant was responsible for the death. “The complicity instructions given, however, fully equipped the jury to answer that question. The jury was instructed on the requisites of aiding and abetting liability (CALJIC No. 3.01) and was further told that defendant was liable for [the victim’s] murder as an aider and abettor in kidnapping or torture only if the murder was committed by another principal in, and was a natural and probable consequence of, that target felony (CALJIC No. 3.02). The general instructions on causation defendant now argues should have been given would not have assisted the jury further in determining his criminal responsibility” for murder. (Id. at p. 1057.)
Trujillo points out that his jury was not instructed on the natural and probable consequences doctrine (CALJIC No. 3.02.) Because the prosecutor did not rely on the doctrine, however, this omission is of no moment. A defendant can be liable as an aider and abettor in two ways. “First, an aider and abettor with the necessary mental state is guilty of the intended crime. Second, under the natural and probable consequences doctrine, an aider and abettor is guilty not only of the intended crime, but also ‘for any other offense that was a “natural and probable consequence” of the crime aided and abetted.’ [Citation.]” (People v. McCoy (2001) 25 Cal.4th 1111, 1117.) Thus, the natural and probable consequences doctrine comes into play where the defendant aided and abetted a crime, but the person actually committing the offense committed a more serious crime. (See People v. Prettyman, supra, 14 Cal.4th at p. 267; People v. Dawson (1997) 60 Cal.App.4th 534, 544.) Instruction on the natural and probable consequences doctrine is appropriate “only when (1) the record contains substantial evidence that the defendant intended to encourage or assist a confederate in committing a target offense, and (2) the jury could reasonably find that the crime actually committed by the defendant’s confederate was a ‘natural and probable consequence’ of the specifically contemplated target offense. If this test is not satisfied, the instruction should not be given, even if specifically requested.” (People v. Prettyman, supra, 14 Cal.4th at p. 269; People v. Dawson, supra, at p. 545.)
In the instant case, the People did not rely upon a natural and probable consequences theory. There was no evidence that Trujillo intended to aid and abet a crime but his confederates committed a more serious crime. If the People’s evidence was credited, Trujillo viciously beat, stomped, and kicked the victim even after he was unconscious. While the jury could have concluded Trujillo had been misidentified and was not a participant in the attack, there was no evidence from which the jury could have concluded he intended a different crime than that actually committed. In sum, the jury was not required to be instructed on the natural and probable consequences doctrine or causation.
c. The trial court did not err by omitting instructions on voluntary and involuntary manslaughter.
(i) Additional facts.
Trujillo requested that the jury be instructed on the lesser included offenses of voluntary and involuntary manslaughter. As requested, the trial court instructed on involuntary manslaughter while unconscious as a result of intoxication (CALJIC No. 8.47). The court declined to give CALJIC No. 8.45, the general involuntary manslaughter instruction, because the instruction “in no way fits anything that we are doing here.” It refused to instruct on voluntary manslaughter on a heat of passion theory, concluding there was no substantial evidence to support such an instruction.
(ii) There was no substantial evidence supporting a voluntary manslaughter instruction.
Trujillo contends the trial court should have instructed the jury on voluntary manslaughter. Murder is the unlawful killing of a human being with malice aforethought. (§ 187, subd. (a); People v. Manriquez (2005) 37 Cal.4th 547, 583.) Voluntary manslaughter is the intentional but non malicious killing of a human being. (People v. Manriquez, supra, at p. 583; People v. Benavides (2005) 35 Cal.4th 69, 102; People v. Rios (2000) 23 Cal.4th 450, 463 & fn. 10; § 192.) Voluntary manslaughter is a lesser included offense of murder. (People v. Lee (1999) 20 Cal.4th 47, 59; People v. Manriquez, supra, at p. 583.) A killing may be reduced from murder to voluntary manslaughter if it occurs upon a sudden quarrel or in the heat of passion on sufficient provocation, or if the defendant kills in the unreasonable, but good faith, belief that deadly force is necessary in self-defense. (People v. Manriquez, supra, at p. 583; People v. Lee, supra, at pp. 58-59.) The provocation which incites the defendant to homicidal conduct must be caused by the victim or be conduct reasonably believed by the defendant to have been engaged in by the victim. (People v. Manriquez, supra, at p. 583.) A defendant who provokes a fight cannot himself assert provocation by the victim. (People v. Johnston, supra, 113 Cal.App.4th at pp. 1312-1313.)
The trial court must instruct on a lesser included offense if substantial evidence exists indicating the defendant is guilty only of the lesser offense. (People v. Manriquez, supra, 37 Cal.4th at p. 584; People v. Cook (2006) 39 Cal.4th 566, 596; People v. Breverman, supra, 19 Cal.4th at p. 162.) Substantial evidence is evidence from which a jury composed of reasonable persons could conclude the lesser offense, but not the greater, was committed. (People v. Manriquez, supra, at p. 584; People v. Benavides, supra, 35 Cal.4th at p. 102.) In deciding whether there is substantial evidence of a lesser included offense, we do not evaluate the credibility of the witnesses, a task for the jury. (People v. Manriquez, supra, at p. 585.) We employ a de novo standard of review when determining whether a lesser included offense instruction should have been given. (Id. at p. 584; People v. Waidla (2000) 22 Cal.4th 690, 733.)
In the instant case there was no evidence of imperfect self-defense, and Trujillo does not argue otherwise. As Trujillo tacitly acknowledges, there was likewise no evidence of any provocation by the victim. Nonetheless, he asserts that “regardless of whether there was adequate provocation from Alvarado . . . voluntary manslaughter was a lesser included offense of murder” as long as he committed assault and battery “with more than criminal negligence but less than malice.” In support of this novel argument, Trujillo cites People v. Rios, supra, 23 Cal.4th 450.
Trujillo’s argument is misplaced. In Rios, the defendant was charged with and convicted of voluntary manslaughter. On appeal he asserted that heat of passion or imperfect self defense were elements of voluntary manslaughter which the People were required to prove, and thus jury instructions omitting these “elements” were incomplete. Rios rejected this reasoning, concluding that imperfect self defense or provocation are not “elements” of voluntary manslaughter when the defendant is facing only a voluntary manslaughter charge. (People v. Rios, supra, 23 Cal.4that pp. 462-463, 469.) Therefore, the People were not required to establish that malice was lacking by reason of provocation or a belief in the need for self-defense. (Id. at p. 454.) However, Rios reiterated the well-settled rule that in a murder case, “a murder defendant is not entitled to instructions on the lesser included offense of voluntary manslaughter if evidence of provocation or imperfect self-defense, which would support a finding ‘that the offense was less than that charged,’ is lacking. [Citations.]” (Id. at p. 463, at fn. 10; see also People v. Benavides, supra, 35 Cal.4th at p. 102.) Thus, Rios provides no support for Trujillo’s theory that he was entitled to voluntary manslaughter instructions in the absence of evidence of both legally adequate provocation and imperfect self defense.
(iii) There was no substantial evidence supporting an additional involuntary manslaughter instruction; omission of the instruction was harmless in any event.
As noted, the trial court instructed with CALJIC No. 8.47 (involuntary manslaughter – killing while unconscious due to voluntary intoxication). Trujillo contends the jury should also have been instructed with CALJIC No. 8.45, defining involuntary manslaughter generally. That instruction would have informed the jury that an unlawful killing committed without malice aforethought, without the intent to kill, and without conscious disregard for human life, constitutes involuntary manslaughter.
“The elements of murder are an unlawful killing committed with malice aforethought. (§ 187.) The lesser included offense of manslaughter does not include the element of malice, which distinguishes it from the greater offense of murder. [Citation.] One commits involuntary manslaughter either by committing ‘an unlawful act, not amounting to felony’ or by committing ‘a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.’ (§ 192, subd. (b).)” (People v. Cook, supra, 39 Cal.4th at p. 596; People v. Abilez, supra, 41 Cal.4th at pp. 515-516; People v. Manriquez, supra, 37 Cal.4th at pp. 587-588; People v. Parras (2007) 152 Cal.App.4th 219, 227-228.) Additionally, an unintentional homicide committed in the course of a non inherently dangerous felony may properly support a conviction of involuntary manslaughter, if the felony is committed without due caution and circumspection. (People v. Albritton (1998) 67 Cal.App.4th 647, 654; People v. Dixon (1995) 32 Cal.App.4th 1547, 1556.)
As noted, a trial court must instruct on a lesser included offense where there is “substantial evidence raising a question as to whether all the elements of a charged offense are present [citations], and when there is substantial evidence that the defendant committed the lesser included offense, which, if accepted by the trier of fact, would exculpate the defendant from guilt of the greater offense. [Citation.]” (People v. Cook, supra, 39 Cal.4th at p. 596.) “If the evidence presents a material issue of whether a killing was committed without malice, and if there is substantial evidence the defendant committed involuntary manslaughter, failing to instruct on involuntary manslaughter would violate the defendant’s constitutional right to have the jury determine every material issue. [Citation.] Malice is implied, however, when a killing results from an intentional act, the natural consequences of which are dangerous to human life, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [Citation.]” (People v. Cook, supra, at p. 596, italics added; People v. Abilez, supra, 41 Cal.4th at pp. 515-516; People v. Manriquez, supra, 37 Cal.4th at p. 587.) The duty to instruct sua sponte on lesser included offenses is not satisfied by instructing on only one theory of an offense if other theories are supported by the evidence. (People v. Lee, supra, 20 Cal.4th at p. 61.)
Trujillo posits that there was evidence from which the jury could have concluded the killing was unintentional and occurred during his commission of misdemeanor assault and battery. He points out that “[i]t has been repeatedly held that where a person, in committing an assault and battery without aggravating circumstances, unintentionally causes the death of his victim, the crime is manslaughter.” (People v. McManis (1954) 122 Cal.App.2d 891, 898; see also People v. Wells (1996) 12 Cal.4th 979, 988 [“assault and battery, neither of which is an inherently dangerous misdemeanor, may be predicates for a conviction of involuntary manslaughter under section 192(b)”]; People v. Clark (1982) 130 Cal.App.3d 371, 382 [“It has frequently been held that assault and/or battery will support a conviction of involuntary manslaughter where death is caused thereby”].)
We do not agree that sufficient evidence supported an involuntary manslaughter instruction. There was no evidence suggesting Trujillo committed only a simple battery, without malice. The People’s evidence showed Trujillo instigated the attack on Alvarado. The men, including Trujillo, did not simply throw a few punches at Alvarado. Instead they kicked and stomped his head and neck, beat him while he was on the ground curled in a ball, and continued the attack even after he lost consciousness. The attack caused fractures of the bones and cartilage associated with the trachea, thyroid, and circoid area, including the hyoid bone, as well as hemorrhages of his neck muscles and subdural hemorrhages in his brain. The cause of death was blunt force trauma to the head and neck, and asphyxia. The assailants clearly aimed for his head and neck. The evidence showed that Trujillo stomped on Alvarado’s head even after Alvarado was having trouble breathing. After the attack, the men stuffed Alvarado’s body in a toilet area. There was evidence that Trujillo said Alvarado was one of the reasons he was facing “fifty to life” and that Alvarado “must die.”
Thus, if the People’s evidence was credited by the jury, it could not have found the absence of malice. As noted, malice is implied when a killing results from an intentional act, the natural consequences of which are dangerous to human life, and the act is deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. (People v. Cook, supra, 39 Cal.4th at pp. 596-597.) Trujillo’s actions were clearly intentional. Given the severity of Alvarado’s injuries caused by the sustained and severe beating carried out by Trujillo and his cohorts, reasonable jurors could not have concluded Trujillo was unaware of the danger to Alvarado’s life. (See People v. Evers (1992) 10 Cal.App.4th 588, 596-597 [involuntary manslaughter instruction unwarranted where the severity of the child victim’s injuries demonstrated that the defendant must have known abuse was likely to cause serious injury or death].) Indeed, the evidence strongly suggested that Trujillo intended to kill Alvarado. (See People v. Dixon, supra, 32 Cal.App.4th at p. 1556 [if a killing is intentional, no involuntary manslaughter instructions may be given].)
People v. Cook, supra, 39 Cal.4th 566, is instructive. There, the defendant attacked the victim, Sadler, beating him with a board and stick and severely battering his head. The victim’s injuries included broken facial bones, and the cause of death was the result of his having aspirated blood into his lungs. (Id. at pp. 574-575.) On appeal, Cook rejected the contention that the trial court should have sua sponte instructed the jury on involuntary manslaughter. Cook explained, “because the evidence conclusively showed that defendant brutally beat Sadler with a board, the jury could not have found that defendant committed a mere misdemeanor battery by administering that beating. Nor was there any evidence that defendant lawfully attacked Sadler and continued to beat his head with a board, unaware that Sadler could die from the beating. Defendant did not simply start a fistfight in which an unlucky blow resulted in the victim’s death. He savagely beat Sadler to death. Because the evidence presented at trial did not raise a material issue as to whether defendant acted without malice, the trial court was not obliged, on its own initiative, to instruct the jury on involuntary manslaughter as to victim Sadler.” (Id. at pp. 596-597.) The same is true here.
If the defense theory was credited, Trujillo was not a participant in the attack. Thus, there was no middle ground from which the jury could have concluded Trujillo participated in the attack, but without malice. Accordingly, the trial court properly refrained from instructing with CALJIC No. 8.45.
Even assuming arguendo that an involuntary manslaughter instruction was supported by the evidence, reversal is not warranted. The erroneous failure to instruct sua sponte on a lesser included offense is, at most, an error of California law alone, and reversal is required only if it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred. (People v. Breverman, supra, 19 Cal.4th at p. 165.) Here, for the reasons we have set forth ante, the evidence supporting the verdict of second degree murder was so strong, and the evidence suggesting involuntary manslaughter so negligible, that omission of CALJIC No. 8.45 was harmless. (People v. Beames (2007) 40 Cal.4th 907, 929; People v. Breverman, supra, at p. 165; People v. Watson, supra, 46 Cal.2d at p. 836.)
3. Cumulative error.
Appellant contends that the cumulative effect of the purported errors undermined the fundamental fairness of the trial. However, as we have “ ‘either rejected on the merits defendant’s claims of error or have found any assumed errors to be nonprejudicial,’ ” we reach the same conclusion with respect to the cumulative effect of any purported errors. (People v. Cole (2004) 33 Cal.4th 1158, 1235-1236.)
DISPOSITION
The judgment is affirmed.
We concur: KLEIN, P. J., KITCHING, J.
CALJIC No. 3.41 provides, “There may be more than one cause of the [death]. When the conduct of two or more persons contributes concurrently as a cause of the [death], the conduct of each is a cause of the [death] if that conduct was also a substantial factor contributing to the result. A cause is concurrent if it was operative at the moment of the [death] and acted with another cause to produce the [death]. [¶] [If you find that the defendant’s conduct was a cause of [death] to another person, then it is no defense that the conduct of some other person [, even the . . . [deceased] person,] contributed to the [death].”