Opinion
B310842
08-12-2022
THE PEOPLE, Plaintiff and Respondent, v. DWAYNE WARD et al., Defendants and Appellants.
John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant Kevaughn Harris. Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant Dwayne Ward. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from judgments of the Superior Court of Los Angeles County No. TA145656, Michael J. Shultz and Patrick Connolly, Judges.
John A. Colucci, under appointment by the Court of Appeal, for Defendant and Appellant Kevaughn Harris.
Alex Coolman, under appointment by the Court of Appeal, for Defendant and Appellant Dwayne Ward.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Senior Assistant Attorney General, Steven D. Matthews and Gary A. Lieberman, Deputy Attorneys General, for Plaintiff and Respondent.
MANELLA, P. J.
INTRODUCTION
An exchange of fire between appellants Dwayne Ward and Kevaughn Harris left a three-year-old boy dead. A jury convicted both men of murder, attempted murder, shooting at an occupied vehicle, and possession of a firearm by a felon, and they received lengthy sentences. Appellants contend: (1) the trial court erred in denying their motion to sever the trial; (2) the court erred in (a) failing to instruct the jury on a heat of passion theory of voluntary manslaughter and attempted voluntary manslaughter, and (b) failing to instruct on involuntary manslaughter as to Ward; (3) the court erred in instructing the jury on mutual combat and in defining that concept; (4) the prosecutor misstated the law of self-defense during closing arguments, and relatedly, the court failed to properly answer a jury question regarding self-defense; and (5) the court erred in removing one of the jurors for communicating with a coworker about the deliberations. Harris adds (6) that Senate Bill No. 1437 (2017-2018 Reg. Sess.; SB 1437) and Senate Bill No. 755 (Reg. Sess. 2021-2022; SB 775) have abrogated the provocative act theory of murder under which he was convicted, and if they did not, they violated his right to equal protection.
We conclude the trial court erred in failing to instruct the jury on the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter based on heat of passion, as they were supported by the evidence. Because this error was not harmless, we reverse appellants' convictions for murder and attempted murder and remand for further proceedings. We find no other error.
Although we reverse appellants' convictions for murder and attempted murder due to the court's failure to instruct on lesser included offenses on heat of passion theory, we address their contentions regarding the failure to sever the trial and the removal of a deliberating juror because, if successful, they would invalidate all of appellants' convictions. Similarly, we address appellants' claims regarding the mutual combat instruction, the prosecutor's closing argument, and the court's response to the jury question -- all of which related to the law of self-defense -because they would, if successful, unsettle their convictions for shooting at an occupied vehicle, as well. We address Ward's contention that he was entitled to an instruction on involuntary manslaughter and Harris's contention that the provocative act doctrine has been invalidated only to provide guidance for any retrial. (See Liodas v. Sahadi (1977) 19 Cal.3d 278, 286; Code Civ. Proc., § 43.) Because we find only one error in the proceedings below, we need not address appellants' additional contention that the cumulative prejudicial effect of various errors requires reversal.
BACKGROUND
A. The Information
In September 2018, the Los Angeles County District Attorney's Office charged appellants in a single information with the January 2018 murder of Franklin P., attempted murder of each other, shooting at an occupied motor vehicle, and possession of a firearm by a felon. Among other enhancement allegations, the information included firearm enhancement allegations under, inter alia, Penal Code section 12022.53, subdivision (d). Additionally, the information alleged that appellants' offenses were committed for the benefit of a criminal street gang under section 186.22, subdivision (b).
Undesignated statutory references are to the Penal Code.
B. Pretrial Motions
Before trial, Ward moved to sever his trial from Harris's on the ground that their respective defenses -- each intended to claim he had acted in self-defense against the other -- were irreconcilable. Harris joined in the motion. Following a hearing, the court (Judge Michael J. Shultz) denied appellants' motion, concluding that their defenses were not mutually exclusive.
After the verdicts, appellants filed motions for a new trial on various grounds, including that failure to sever the trial resulted in gross unfairness to them. The trial court (Judge Patrick Connolly) denied their motions. As to the severance issues, the court found appellants' defenses had not been irreconcilable, further suggesting that sufficient independent evidence existed to support the convictions regardless of any conflict in appellants' defenses.
Subsequently, Harris filed a motion in limine to set aside the murder charge against him, arguing that SB 1437 had eliminated the provocative act doctrine, which served as the basis for the charge. The court (Judge Patrick Connolly, who presided over all remaining trial proceedings) denied his motion after concluding that SB 1437 did not affect the validity of the provocative act doctrine.
Under the provocative act doctrine, a person who "cause[s] a third party to kill in response to their lifethreatening provocative acts" may be liable for murder. (People v. Cervantes (2001) 26 Cal.4th 860, 867 (Cervantes).)
C. The Trial
1. The Prosecution's Case
i. The Shooting
On the evening of January 20, 2018, Ward, a member of the Original Swamp Compton Crips gang (Swamp Crips), drove to Nate's Liquor, a local liquor store, together with Sukari Joffiron. The store was located between the territories of Ward's gang and the rival Lantana Blocc Compton Crips gang (Lantana Blocc). After parking near the front of the store, Ward went inside, but Joffiron stayed in the front passenger seat.
While Ward was inside the store, Harris, a member of Lantana Blocc, arrived at the store's parking lot in a car, along with girlfriend Salome Souriyasak and her three-year-old son, Franklin. Souriyasak was driving, and Franklin was in the backseat. Souriyasak parked some distance behind Ward's car, perpendicular to it, and Harris exited the car and went inside the store.
Ward exited the store seconds later and entered the driver's side of his car, leaving the driver's door open. Joffiron later told detectives that Ward appeared "scared, panicky," and when she asked him what was going on, he said, "This n[****]'s looking at me funny." Ward reached under the dashboard on the passenger side, grabbed a gun from a "stash spot," and placed it between the passenger seat and the center console.
At trial, Joffiron responded to most of the questions she was asked regarding the events of that evening by claiming she did not remember.
Shortly thereafter, Harris exited the store and began walking toward Souriyasak's car. As he passed by Ward's car, the latter nodded at him. Harris kept walking, and according to Joffiron, Ward asked, "Do you know me, man?" One of the men asked, "Where you from?" Joffiron was unsure who posed this question: at an initial interview with detectives, she said she believed it was "the other guy" (Harris), while at a subsequent interview, she initially said she thought it was Ward who had asked the question, before again saying she thought it was Harris. Ward then said, "Swamp Crip." Joffiron heard Harris say something back but could not tell what it was.
Surveillance video at Nate's Liquor showed Harris, who had kept walking toward Souriyasak's car, turning around to face Ward as he reached the rear of the car. As another car passed between the two, Ward reached for the center console area, and according to Joffiron, grabbed the gun and held it facing out of the driver's door. At the same time, Harris reached inside his pocket. After the other car cleared, Harris took a gun out of his pocket and fired a number of shots at Ward before his gun jammed. Harris then moved behind Souriyasak's car and apparently toward the front passenger's door, as Ward fired a number of shots back at him. One of Ward's bullets entered through the driver's side rear window, hitting Franklin in the head.
The video had no audio.
The video shows Ward reaching inside the car as the other car passes. The open driver's door and window obscure a clearer view, and the gun Joffiron referred to is not visible in the video at this point.
Harris got into Souriyasak's car, and both cars drove away. According to Joffiron, Ward said, "I'm going to jail." After noticing that Franklin had been shot, Souriyasak called 911, and Los Angeles County Sheriff's Department (LCSD) deputies who responded to the call rushed Franklin to the hospital. The child ultimately died of his injuries.
At the hospital, Harris described some of the incident to Deputy Alex Saldana, and told him that a rival gang member "banged on" him, he "banged back," and that's when he heard someone shooting at him.
Harris, who testified in his own defense at trial, confirmed in response to questioning that "banging" meant "representing your hood and challenging the other person."
ii. Gang Expert Testimony
The People called LCSD Sergeant Nikolai Vavakin as a gang expert. Sergeant Vavakin testified that in gang culture, the question, "Where you from?" is a "warning sign," and "a way of showing dominance and . . . scaring the other person." According to the expert, "[a] gang member understands that the gang member that asked him where he's from . . . is basically showing his authority over his turf, and . . . he's challenging that person." Thus, Sergeant Vavakin explained, when a gang member responds by claiming his gang, he is communicating that he "is not backing down ...." The expectation then is that there will most likely be violence.
2. Ward's Case
LCSD Detective John Carlin, one of the investigating officers in the case, interviewed Harris on January 21, 2018. Harris told Detective Carlin that he had been challenged with the question, "Hey, where you from?" and that he replied, "I ain't with that." He claimed he shot first because a gun was pointed at him. After Detective Carlin reviewed the video of the incident, he asked Harris why the video did not show a gun pointed at him before the shooting. Harris replied that Ward had held the gun low, and he believed Ward did so to avoid the surveillance cameras.
Ward did not testify.
3. Harris's Case
Harris testified in his own defense and described his version of the events preceding the shooting. When Harris entered Nate's Liquor, he recognized Ward, who was a well-known member of the Swamp Crips. Ward's reputation put Harris "on alert." As Harris exited the store and walked past Ward's car, Ward did not say anything to him. Harris continued walking and then heard Ward say, "Hey, where you from?" Harris turned around because he knew his life was in danger. He said, "What?" and told Ward he "wasn't with that." Ward said, "Swamp Crip," and that was when Harris saw Ward holding a gun. Harris shot first "because [he] was scared."
During his testimony, Harris demonstrated how Ward had held the gun. According to the court, Harris indicated Ward was "seated slightly turned to his left," "with his right arm to his side, with the forearm draped across his lap, with his right hand on or over his left thigh, as if in a fist, as if holding a weapon."
During cross-examination by the People, Harris denied telling law enforcement that he had "banged back." In response to questioning by Ward's counsel, Harris claimed that the video did not contradict his claim that the gun was pointed at him before the shooting, stating that from where he was standing at the time of the incident, he could see the gun.
Harris testified he had been shot three times in his life. After the third time, he started carrying a gun because he told himself he would not "get caught slippin'."
Dr. Rahn Minagawa, a forensic psychologist, testified that Harris suffered from post-traumatic stress disorder and complex trauma, and that his symptoms included hypervigilance and "startled response." Based on his experience working with gang members, Dr. Minagawa also testified that in gang culture, the phrase "where are you from" was a "catalyst for a violent confrontation": "You are expected to either defend your territory or you understand that you are about to be attacked, because of your gang alliances."
D. The Jury Instructions
After the close of evidence, the trial court gave the jury the standard instructions pertaining to appellants' charged offenses, and as to Harris, it also instructed the jury on the provocative act doctrine under CALCRIM No. 560.
The instruction on the provocative act doctrine stated, in relevant part: "To prove that [Harris] is guilty of murder under the provocative act doctrine, the People must prove that: [¶] 1. In attempting to commit murder, [Harris] intentionally did a provocative act; [¶] 2. [Harris] knew that the natural and probable consequences of the provocative act were dangerous to human life and then acted with conscious disregard for life; [¶] 3. In response to [Harris]'s provocative act, DWAYNE WARD killed FRANKLIN P.; [¶] AND [¶] 4. FRANKLIN P.'s death was the natural and probable consequence of [Harris]'s provocative act."
The court instructed the jury on principles of self-defense under CALCRIM No. 505. As relevant here, the instruction stated that a defendant acted in self-defense if he (1) reasonably believed he was in imminent danger of being killed or suffering great bodily injury; (2) reasonably believed that the immediate use of deadly force was necessary to defend against that danger; and (3) used no more force than was reasonably necessary to defend against that danger. It additionally instructed, "Defendant's belief [that there was imminent danger of death or great bodily injury to himself] must have been reasonable[,] and he must have acted only because of that belief." Finally, the court's instruction under CALCRIM No. 505 stated that it was the People's burden to prove beyond a reasonable doubt that the relevant offenses were not justified.
Relatedly, over a defense objection, the court instructed the jury on mutual combat under CALCRIM No. 3471. This instruction explained that a person who engaged in mutual combat had no right to self-defense unless he took certain steps to withdraw. It defined "mutual combat" as a fight that began or continued by mutual consent or agreement, and stated that the agreement must have occurred "before the claim to self-defense arose."
"[I]nvolvement in mutual combat may preclude reliance on self-defense . . . unless the defendant took specific steps to desist from the combat." (People v. Ross (2007) 155 Cal.App.4th 1033, 1044, fn. 11 (Ross), citing § 197.)
At Harris's request, the court additionally instructed the jury on the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter as to him, based on a theory of imperfect self-defense, under CALCRIM Nos. 571 and 604, respectively. As relevant here, these instructions informed the jury that offenses that would otherwise be murder and attempted murder are reduced to the respective lesser included offenses if the defendant acted in imperfect self-defense. They explained that the difference between complete and imperfect self-defense "depends on whether the defendant's belief in the need to use deadly force was reasonable."
E. Closing Arguments
In their closing argument, the People argued that neither appellant had a valid claim of self-defense because both "participated fully in a . . . modern-day duel," and emphasized the importance of the gang context to the shooting. Ward and Harris each claimed to have exercised valid self-defense against the other. And each asserted that the People were trying to base their guilt simply on their status as gang members. In their rebuttal, the People continued to argue that self-defense was not available to either appellant, and clarified this was not because they were gang members, but because they had willingly engaged in a gunfight. The People highlighted that to claim self-defense, a person must have acted based on fear alone, and read the relevant portion of the instruction under CALCRIM No. 505 to the jury.
We discuss the People's rebuttal closing argument in greater detail below, in addressing appellant's claim of prosecutorial error.
F. The Verdicts and the Sentences
The jury ultimately found appellants guilty of second degree murder, attempted murder, shooting at an occupied motor vehicle, and possession of a firearm by a felon. It found not true allegations that the murder and attempted murders were willful, deliberate, and premeditated. The jury found true the firearm allegations under section 12022.53, subdivision (d). It was unable to return a verdict as to the gang allegations.
The trial court sentenced Ward to a total of 89 years to life in prison. It sentenced Harris to a total of 103 years to life. Appellants timely appealed.
DISCUSSION
On appeal, appellants contend: (1) the trial court erred in denying their severance motion; (2) the court erred in (a) failing to instruct the jury on a heat of passion theory of voluntary manslaughter and attempted voluntary manslaughter, and (b) failing to instruct on involuntary manslaughter as to Ward; (3) the court erred in instructing the jury on mutual combat and in defining that concept; (4) the prosecutor misstated the law of self-defense during closing arguments, and relatedly, the court failed to properly answer a jury question regarding self-defense; (5) the court erred in removing a juror for communicating with a coworker about the deliberations; and (6) as relevant to Harris, SB 1437 and SB 755 have abrogated the provocative act theory of murder, and if they did not, this violated his right to equal protection.
We conclude the trial court erred in failing to instruct the jury on the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter based on heat of passion, as the evidence supported the giving of these instructions. We further conclude this error was not harmless. We find no other error.
B. Severance
Appellants contend that the trial court erred in denying their motion to sever because their defenses were irreconcilable and mutually exclusive, and that the joint trial resulted in "'gross unfairness'" amounting to a denial of due process. We find neither abuse of discretion by the trial court nor resulting gross unfairness.
Section 1098 provides, in relevant part: "When two or more defendants are jointly charged with any public offense . . . they must be tried jointly, unless the court order[s] separate trials." (§ 1098.) Through this provision, "[t]he Legislature has established a strong preference for joint trials." (People v. Winbush (2017) 2 Cal.5th 402, 455.) "'Joint trials are favored because they "promote [economy and] efficiency" and "'serve the interests of justice by avoiding the scandal and inequity of inconsistent verdicts.'"' [Citation.] 'When defendants are charged with having committed "common crimes involving common events and victims," . . . the court is presented with a "'classic case'" for a joint trial.'" (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 819 (Daveggio).)
"'"Although several California decisions have stated that the existence of conflicting defenses may compel severance of codefendants' trials, none has found an abuse of discretion or reversed a conviction on this basis."'" (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 41.) "The circumstance that [two defendants] might attempt to fix blame on each other [does] not by itself require separate trials. 'If the fact of conflicting or antagonistic defenses alone required separate trials, it would negate the legislative preference for joint trials and separate trials "would appear to be mandatory in almost every case."'" (People v. Letner and Tobin (2010) 50 Cal.4th 99, 150 (Letner), fn. omitted.) Thus, "antagonistic defenses require severance only when '"'the conflict is so prejudicial that [the] defenses are irreconcilable, and the jury will unjustifiably infer that this conflict alone demonstrates that both are guilty.'"' [Citation.] 'If the moving party's guilt can be established by sufficient independent evidence, "it is not the conflict alone that demonstrates . . . guilt," and severance is not required.'" (Daveggio, supra, 4 Cal.5th at 819-820.)
We review the denial of a severance motion for abuse of discretion, based on the facts known at the time of the trial court's ruling. (Daveggio, supra, 4 Cal.5th at 819.) However, "'"even if a trial court's ruling on a motion to sever is correct at the time it was made, a reviewing court still must determine whether, in the end, the joinder of . . . defendants for trial resulted in gross unfairness depriving the defendant of due process of law."' Defendants bear the burden of establishing that the trial was grossly unfair and denied them due process of law ...." (Id. at 821.)
Here, ample independent evidence supported the charges against appellants. The essential facts of the shooting were undisputed: Harris fired at Ward first, and Ward returned fire, killing Franklin. Moreover, sufficient independent evidence allowed the jury to reject appellants' claims of self-defense. The video showed that each appellant reached for his gun before any shots were fired by the other, while a car passed between them, and Joffiron's and Harris's out-of-court statements supported that regardless of who posed the initial gang challenge, each appellant claimed his gang, thereby challenging the other. Based on this evidence, the jury could have found that appellants had engaged in mutual combat or that neither acted out of fear alone, thus negating claims of self-defense. (Cf. People v. Nguyen (2015) 61 Cal.4th 1015, 1044 (Nguyen) [rejecting claim that evidence established self-defense as matter of law; jury could reasonably have concluded (1) "that defendant was engaged in mutual combat because the Nip Family, of which he was a member, was engaged in an ongoing gang war with the Cheap Boys, of which [the victim] was a member," or (2) that in shooting victim, defendant "did not act on the basis of fear alone but also on a desire to kill his rival," based on testimony that defendant held gun and smiled as he waited for victim to approach].) Accordingly, the trial court was not compelled to grant appellants' motion to sever the trial. (See Daveggio, supra, 4 Cal.5th at 819-820.)
As noted, Joffiron told detectives that Ward claimed the Swamp Crips during his exchange with Harris, but could not say with certainty how Harris replied. Harris, however, told Deputy Saldana that before the shooting, Ward "banged on" him, and he "banged back."
Nor have appellants established any gross unfairness resulting from the joint trial. For instance, they point to no prejudicial evidence that would not have been presented at separate trials. Ward notes that the joint trial "featured two closing arguments in which the lawyers for each codefendant devoted their rhetorical energy to eviscerating the other co-defendant." But these circumstances do not constitute gross unfairness. (See Letner, supra, 50 Cal.4th at 153 [rejecting claim that severance was required because codefendant acted as "'second prosecutor'"; "Tobin's presentation of evidence tending to incriminate Letner did not lessen the prosecution's burden, or result in gross unfairness amounting to a denial of due process"].)
C. Failure to Instruct on Lesser Included Offenses
"'California law requires a trial court, sua sponte, to instruct fully on all lesser necessarily included offenses supported by the evidence.' [Citation.] The requirement applies when there is substantial evidence that the defendant committed the lesser offense instead of the greater offense. [Citation.] 'In deciding whether evidence is "substantial" in this context, a court determines only its bare legal sufficiency, not its weight.' [Citation.] Thus, 'courts should not evaluate the credibility of witnesses, a task for the jury' [citation], and uncertainty about whether the evidence is sufficient to warrant instructions should be resolved in favor of the accused [citation]." (People v. Vasquez (2018) 30 Cal.App.5th 786, 792 (Vasquez).) "We review de novo a trial court's failure to instruct on a lesser included offense [citation], and in doing so we view the evidence in the light most favorable to the defendant[s]." (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137 (Millbrook).)
1. Heat of Passion Theory of Voluntary Manslaughter and Attempted Voluntary Manslaughter
i. Background
After the close of evidence, Ward's counsel asked the trial court to instruct the jury on the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter on a heat of passion theory. The court refused to grant these instructions, reasoning, "there is nothing here that would show that any response by Mr. Ward . . . would be anything other than to the actual shooting itself." The court also did not give those instructions as to Harris, who did not request them.
ii. Governing Principles
"Murder is the unlawful killing of a human with malice aforethought. (§ 187, subd. (a).) A person who intentionally kills in a 'sudden quarrel or heat of passion' (§ 192, subd. (a)) . . . lacks malice. [Citation.] The resulting crime is voluntary manslaughter, a lesser included offense of murder." (People v. Dominguez (2021) 66 Cal.App.5th 163, 174 (Dominguez).) Heat of passion is not an element of voluntary manslaughter that must be affirmatively proven, but a "'theor[y] of partial exculpation' that reduce[s] murder to manslaughter by negating the element of malice." (People v. Moye (2009) 47 Cal.4th 537, 549 (Moye).)
"A heat of passion theory of manslaughter has both an objective and a subjective component." (Moye, supra, 47 Cal.4th at 549.) "'"To satisfy the objective or 'reasonable person' element of this form of voluntary manslaughter, the accused's heat of passion must be due to 'sufficient provocation.''"" (Ibid.) "The provocative conduct . . . must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection." (Id. at 550.) "Subjectively, the defendant must have killed while under '"the actual influence of a strong passion" induced by such provocation.' [Citation.] The passion aroused need not be anger or rage, but can be any intense emotion other than revenge. [Citation.] Thus, a defendant's 'immediate fear and panic' can, in an appropriate case, provide evidence from which 'a reasonable jury could infer that defendant was aroused to passion, and his reason was thus obscured ....'" (Dominguez, supra, 66 Cal.App.5th at 175.)
iii. Analysis
a. Ward
The trial court erred in refusing to instruct the jury on a heat of passion theory of voluntary manslaughter and attempted voluntary manslaughter as to Ward, as substantial evidence supported the existence of both the objective and the subjective components of heat of passion. First, it is beyond dispute that Harris's conduct -- shooting at Ward multiple times -- would be sufficient to arouse intense emotion in a reasonable person and cause the person to act rashly or without due deliberation. (See Moye, supra, 47 Cal.4th at 549; People v. Thomas (2013) 218 Cal.App.4th 630, 645 (Thomas) [sufficient provocation where victim lunged at defendant, and defendant thought victim was "going for the [defendant's] gun"]; In re Hampton (2020) 48 Cal.App.5th 463, 480 [sufficient provocation where victim lunged at defendant and reached inside defendant's car while looking in direction of gun on defendant's lap].)
Second, contrary to the Attorney General's assertion, the evidence supported a finding that Ward had returned fire under the influence of intense emotion. According to Joffiron, Ward already looked "scared" and "panicky" when he returned to the car from the store, complaining that Harris had been "looking at [him] funny." Common sense suggests his panic and fear only intensified when Harris began shooting at him. And immediately after the shooting, Ward told Joffiron, "I'm going to jail," suggesting a recognition that he had made an impulsive mistake. This evidence sufficed to satisfy the subjective component of heat of passion. (See Thomas, supra, 218 Cal.App.4th at 645 [heat of passion instruction was required where defendant testified he was "afraid, nervous and not thinking clearly" when he shot alleged assailant]; Millbrook, supra, 222 Cal.App.4th at 1139, 1140 [instruction required where defendant testified "he was 'scared' and 'panicking'" when he shot victim, who had insulted his girlfriend, "clenched his fists[,] and 'lunged' at [him]"].)
The trial court suggested that if the jury believed that Ward had acted in response to Harris's shooting, it would necessarily find that he had acted in self-defense, leading to a complete acquittal. Yet instructions on self-defense and heat of passion are not mutually exclusive. (See Dominguez, supra, 66 Cal.App.5th at 180 ["Where, as here, there is evidence that the victim was the first to attack the defendant, instructions on heat of passion may be required in addition to those on reasonable and/or imperfect selfdefense, depending on the particular facts"].) Theories of self-defense and heat of passion "serve different purposes and involve different analyses." (Id. at 181.) Thus, depending on the circumstances, a jury might reject a defendant's claim of self-defense while accepting a heat of passion theory, even when both are predicated on the same conduct by the victim (or intended victim). (See ibid.; Millbrook, supra, 222 Cal.App.4th at 1139 [although jury rejected defendant's perfect and imperfect self-defense claims, indicating their view that he "did not have an actual fear that he was in imminent danger of death or great bodily injury[,] . . . the jury could nonetheless have found [the defendant] was acting under the actual influence of extreme emotion"]; People v. St. Martin (1970) 1 Cal.3d 524, 531 ["'in a prosecution for murder, even though the defense of selfdefense fails, as it might for excessive retaliation by the defendant, the jury might still find the original attack sufficient to constitute provocation, which would preclude a finding of malice aforethought and reduce the crime to manslaughter'"].)
Here, assuming Ward acted in response to Harris's attack, his claim of self-defense could have failed for reasons that would not have affected a heat of passion claim. For instance, the jury was instructed, in accordance with California law, that for a defendant to claim self-defense, he must have acted "only because of [his] belief" that there was imminent danger of death or great bodily injury to himself. (CALCRIM No. 505; accord, § 198 [to claim self-defense, killer must have acted under the influence of "fear[] alone"].) A heat of passion theory includes no similar requirement. Thus, a finding that Ward had acted out of both intense fear and a desire to kill a hostile member of a rival gang would have precluded his claim of self-defense. (See People v. Shade (1986) 185 Cal.App.3d 711, 716 (Shade) ["self-defense is not available when a person does not act out of fear alone, but out of fear and a desire to harm the attacker" (italics added)].) But the same finding would have supported a conviction for heat of passion voluntary manslaughter, instead of murder. Accordingly, the court erred in refusing to instruct the jury on a heat of passion theory of voluntary manslaughter and attempted voluntary manslaughter as to Ward. (See Vasquez, supra, 30 Cal.App.5th at 792; Dominguez, supra, 66 Cal.App.5th at 180.)
The Attorney General makes no cogent argument that the instructional error was harmless, asserting only that there was no evidence that Ward shot at Harris in a heat of passion -- a contention we have already rejected. The record suggests at least a reasonable possibility that the jury would have accepted the heat of passion theory, despite its rejection of Ward's claim of self-defense, and convicted him of the reduced offenses. In arguing in their rebuttal closing argument that neither defendant had a valid claim of self-defense, the People highlighted that to claim selfdefense, a person must act based on fear alone, and read the portion of the instruction containing that rule to the jury. Given the evidence of gang animosity and the challenges preceding the shootings, it is plausible the jury found selfdefense inapplicable based on its determination that Ward had not acted out of fear alone. As discussed, this finding would not have precluded a finding of voluntary manslaughter and attempted voluntary manslaughter based on a heat of passion theory.
Our Supreme Court has granted review to consider which standard of prejudice applies when a trial court errs in refusing to instruct the jury on voluntary manslaughter based on imperfect self-defense, which is analogous to the circumstances here. (People v. Schuller, review granted Jan. 19, 2022, S272237.) We need not decide which standard applies, as the error here was not harmless even under the more forgiving state law standard. (See People v. Watson (1956) 46 Cal.2d 818, 836 [state law error is prejudicial only if it is reasonably probable that more favorable result would have been reached absent error].)
Moreover, the jury's verdict suggested it may have been inclined to find that Ward had acted under the heat of passion, had it been properly instructed. The jury convicted Ward of second degree murder, finding not true the allegation that the offense was willful, deliberate, and premeditated. Furthermore, the jury convicted Harris of murder under the provocative act doctrine, which entailed a finding that Ward had responded to Harris's provocative act of shooting at him. (See Cervantes, supra, 26 Cal.4th at 867; People v. Mejia (2012) 211 Cal.App.4th 586, 602 (Mejia) [conviction under provocative act doctrine requires proof that killer responded to defendant's provocative act]; see also CALCRIM No. 560.) Because there is a reasonable probability that absent the court's instructional error, the jury would have convicted Ward of the lesser included offenses of voluntary manslaughter and attempted voluntary manslaughter his convictions for murder and attempted murder must be reversed.
b. Harris
The trial court similarly erred by failing to instruct the jury, sua sponte, on a heat of passion theory of voluntary manslaughter and attempted voluntary manslaughter as to Harris. First, based on Harris's version of the facts, the circumstances preceding the shooting could satisfy the objective component of heat of passion. Harris's testimony supported a finding that Ward, a rival gang member, initiated the confrontation between the two, posing a gang challenge by asking Harris "where you from?" The jury heard testimony that this phrase was a "catalyst for a violent confrontation" in gang culture. According to Harris, he turned around to face Ward and said he was not "with that," but Ward responded by claiming his own gang, and Harris then saw that Ward was pointing a gun at him.Such a threatening confrontation would be sufficient to cause a reasonable person to act rashly and without deliberation. (See Moye, supra, 47 Cal.4th at 549; Dominguez, supra, 66 Cal.App.5th at 168-169 [sufficient provocation where gang member said, "'Where the fuck you from?'" and "lunged at [defendants] while reaching for an apparent weapon in his waistband"]; Shade, supra, 185 Cal.App.3d at 715 ["an armed intruder bursting in, pointing a gun at defendant and stating he was going to kill him would be sufficient provocation to incite the passions and negate malice"].)
The Attorney General asserts that Ward did not point his gun at Harris before the shooting. But Harris told Detective Carlin that Ward had pointed the gun at him before the shooting, claiming the gun was held too low to be seen in the video. He reiterated this assertion at trial, insisting that from his vantage point, he could see the gun. As noted, the video does not clearly show what Ward was holding or how, much less what was visible to Harris, prior to the shooting. But Joffiron told detectives that when Ward grabbed the gun, he held it facing out of the car. Absent evidence conclusively discrediting Harris's version, we must accept it as true. (See Vasquez, supra, 30 Cal.App.5th at 792; Millbrook, supra, 222 Cal.App.4th at 1137.)
Second, the evidence amply supported a finding that Harris had acted under the influence of passion. Harris testified he turned around to face Ward after the latter asked, "where you from?" because he knew his life was in danger, and stated that when he saw Ward's gun, he shot first "because [he] was scared." Harris had been shot three times before. Dr. Minagawa, a forensic psychologist, testified that Harris suffered from post-traumatic stress disorder, and his symptoms included hypervigilance and "startled response." Thus, the jury could have found that in shooting at Ward, Harris reacted rashly to a threat (real or perceived) under the influence of fear. (See Thomas, supra, 218 Cal.App.4th at 645; Millbrook, supra, 222 Cal.App.4th at 1139.) Accordingly, the court was required to instruct the jury on a heat of passion theory of voluntary manslaughter and attempted voluntary manslaughter as to Harris.
The Attorney General argues that the failure to so instruct was harmless because the jury rejected Harris's imperfect self-defense theory. According to the Attorney General, this meant the jury "necessarily found beyond a reasonable doubt that appellant Harris did not actually believe he was in imminent danger of death or great bodily injury," and thus that it would not have found that "Harris's reason was obscured by fear ...." But as discussed, there could have been other reasons for the jury to reject a claim of imperfect self-defense. For instance, like actual self-defense, imperfect self-defense requires that the defendant act based on fear alone. (See People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262 ["The subjective elements of selfdefense and imperfect self-defense are identical"]; see also CALCRIM No. 571 [difference between complete self-defense and imperfect self-defense related to "whether the defendant's belief in the need to use deadly force was reasonable"].) As with Ward, the jury could have found self-defense inapplicable to Harris based on a determination that he had not acted out of fear alone, a finding that would not have affected the availability of a heat of passion theory. As with Ward, the jury's verdict suggested it would have been open to finding that theory applicable to Harris, as it convicted him of second degree murder, finding not true the allegation that the offense was willful, deliberate, and premediated. Thus, as with Ward, there is a reasonable probability that absent the instructional error, the jury would have convicted Harris of the lesser included offenses based on heat of passion, and his convictions for murder and attempted murder must therefore be reversed.
2. Involuntary Manslaughter as to Ward i. Background
When the parties discussed the jury instructions with the court, Ward's counsel requested an instruction on the lesser included offense of involuntary manslaughter as to Ward, explaining that the jury could find that when Ward "continued to shoot when Mr. Harris went behind the car, . . . he acted in a reckless way that create[d] a high risk of death or great bodily injury ...." The court declined to give the instruction, reasoning that although Harris moved behind Souriyasak's car, nothing indicated to Ward that Harris was "disabled or was no longer able to return fire," and thus, "there [wa]s nothing about [Ward's] actions being reckless."
ii. Analysis
Ward claims the trial court erred in declining to instruct the jury on involuntary manslaughter as to him. He argues that the evidence that he shot back at Harris while the latter was standing behind an occupied car supported the instruction because that act could have been viewed as lawful self-defense performed in a negligent manner. We disagree.
As a general matter, a person who acts in self-defense against an aggressor but inadvertently kills an innocent bystander will be shielded from liability. (People v. Curtis (1994) 30 Cal.App.4th 1337, 1357.) There is some support, however, for the proposition that a person who exercises valid self-defense in a reckless manner and kills an innocent bystander may be liable for involuntary manslaughter. (See § 192, subd. (b) [Involuntary manslaughter includes "the unlawful killing of a human being without malice . . . in the commission of a lawful act which might produce death . . . without due caution and circumspection"]; People v. Guillen (2014) 227 Cal.App.4th 934, 1027 ["'The words "without due caution and circumspection" refer to criminal negligence -unintentional conduct which is gross or reckless, amounting to a disregard of human life or an indifference to the consequences'"]; 2 LaFave, Substantive Criminal Law (3d ed. 2021) Accidental injury to third person, § 10.4(g) ["If A in proper self-defense aims at his adversary B but misses B and unintentionally strikes innocent bystander C, he is not liable for C's injury or death. But the result is otherwise if under all the circumstances (including the need to defend himself) A was reckless with regard to C. In such a case he would be liable for battery if he merely injures, involuntary manslaughter if he kills, C" (fns. omitted)]; State v. Isreal (Mo.Ct.App. 1994) 872 S.W.2d 647, 650, fn. 4 [person acting in self-defense not liable for unintentional harm to third person "'unless the perpetrator acted carelessly or without regard to the safety of innocent bystanders'" ]; but see Commonwealth v. Fowlin (1998) 551 Pa. 414, 418 ["defender may not be simultaneously found to have justifiably acted in self-defense and be criminally liable for crimes involving recklessness or malice"].)
Assuming, arguendo, this is the rule in California, it has no application here. The circumstances of appellants' confrontation made no room for distinguishing between Ward's right to defend himself against Harris and the manner in which he exercised that right. Having been shot at, Ward's only reasonable way to exercise his right of self-defense was to shoot back at Harris. There is no suggestion that he shot anywhere else, that he shot blindly, or that based on the circumstances known to him, he could have safely retreated. Using the only available reasonable means to defend himself could not have constituted reckless disregard for the life of innocent bystanders. (Cf. State v. Isreal, supra, 872 S.W.2d at 650 [evidence justified giving involuntary manslaughter instruction where according to defendant, when assailant approached him with knife, "he essentially covered his eyes and retreated while firing all of the rounds in his gun," killing bystander].) Thus, the evidence did not support an instruction on involuntary manslaughter as to Ward. (See Vasquez, supra, 30 Cal.App.5th at 792.)
As the trial court noted, nothing in the record suggested Ward could have known Harris would not continue to fire at him.
D. Instruction on Mutual Combat
Appellants contend the trial court erred in instructing the jury on the concept of mutual combat because the evidence did not support the instruction. Alternatively, they claim the court provided an erroneous definition of that concept. We review claims of instructional error de novo. (People v. Sorden (2021) 65 Cal.App.5th 582, 599.) As noted, "involvement in mutual combat may preclude reliance on self-defense . . . unless the defendant took specific steps to desist from the combat." (Ross, supra, 155 Cal.App.4th at 1044, fn. 11, citing § 197.) Mutual combat refers to a fight "'begun or continued by mutual consent or agreement.'" (Ross, at 1045, quoting People v. Fowler (1918) 178 Cal. 657, 671 (Fowler), italics omitted.) It is not "merely a reciprocal exchange of blows," but one pursuant to mutual intention "preceding the initiation of hostilities" (id. at 1045, italics omitted), or "before the claimed occasion for self-defense arose" (id. at 1047, italics omitted).
Appellants first contend the evidence did not support an instruction on mutual combat because "[e]ach defendant claimed that the other started the fight and he was responding in self-defense," and the "hostilities arose suddenly and violently without the opportunity to reach any agreement." (See People v. Guiton (1993) 4 Cal.4th 1116, 1129 ["It is error to give an instruction which, while correctly stating a principle of law, has no application to the facts of the case"].) These contentions overlook much of the evidence in the record. As discussed, Joffiron's and Harris's out-of-court statements supported that after either Harris or Ward asked the other "where you from?" each appellant claimed his own gang: Joffiron told detectives that Ward claimed the Swamp Crips during his exchange with Harris, and Harris told Deputy Saldana that before the shooting,
Ward "banged on" him, and he "banged back." Sergeant Vavakin, the prosecution's gang expert, testified that in gang culture, the question "where you from?" is a "warning sign," and "a way of showing dominance and . . . scaring the other person." He further explained that when a rival gang member responds by claiming his gang, he is communicating that he "is not backing down," and the expectation then is that there will most likely be violence. Additionally, the video showed that each appellant reached for his gun before any shots were fired by the other, while a car passed between them. This evidence amply supported a finding that appellants formed a mutual intent to fight before any right to act in self-defense could have materialized. (See Nguyen, supra, 61 Cal.4th at 1044.)
As noted, Harris confirmed at trial that "banging" meant "representing your hood and challenging the other person."
Appellants next contend that the court's instruction under CALCRIM No. 3471 incorrectly defined "mutual combat." Citing Ross, they claim the instruction erroneously stated that the agreement "must occur before the claim to self-defense arose," rather than stating that it must arise "prior to the start of hostilities." This claim lacks merit.
Ross used these two formulations -- "preceding the initiation of hostilities" (Ross, supra, 155 Cal.App.4th at 1045, italics omitted) and "before the claimed occasion for self-defense arose" (id. at 1047, italics omitted) - interchangeably. The court's quotation of Fowler's formulation of mutual combat as a fight "'begun or continued by mutual consent or agreement'" established that the mutual intent need not arise before the fight begins. (Ross, at 1045, quoting Fowler, supra, 178 Cal. at 671, some italics omitted.)
Moreover, the Ross court's discussion of mutual combat provides additional confirmation that a mutual intent to fight must exist only before the need for self-defense arises. There, the Court of Appeal concluded the trial court had erred in refusing the jury's request for a legal definition of "mutual combat," instead telling jurors to rely on the ordinary meaning of those words. (Ross, supra, 155 Cal.App.4th at 1036.) The court explained: "If A walks up to B and punches him without warning, and a fight ensues, the fight may be characterized as 'mutual combat' in the ordinary sense of those words. But as this example demonstrates, the phrase so understood may readily describe situations in which the law plainly grants one of the combatants a right of self-defense.... That right cannot be forfeited or suspended by its very exercise. Yet that is the effect of relying on the everyday meaning of 'mutual combat.' B's entitlement to strike back in self-defense would then be conditioned, absurdly, on his first refusing to fight, communicating his peaceable intentions to his assailant, and giving his assailant an opportunity to desist. By then, of course, his assailant might have beaten him senseless." (Id. at 1044, fn. omitted.)
As Ross makes clear, mutual combat requires that the mutual intent to fight preexist any right to act in selfdefense. Appellants' suggestion that the mutual intent must form at some earlier point has no basis in law or logic. The trial court's instruction was correct.
E. Related Claims of Prosecutorial Error and Insufficient Response to the Jury's Inquiry 1. Background
During the People's rebuttal closing argument, the prosecutor stated: "The reality is that gang members are victims too .... Gang members can practice self-defense and exercise that, just like everybody else.... [¶] It depends on the situation and the circumstances.... [¶] So this isn't an issue about who it happens to be, it's an issue of what did they do, and what motivation did they have ...."
Referencing the instruction on self-defense (CALCRIM No. 505), the prosecutor argued that to have a valid claim of selfdefense, a defendant "[m]ust have acted only because of that belief [that there was imminent danger of death or great bodily injury to himself]." He then proceeded to say, "The reason why the law says that . . . you only get self-defense if you act only on [that] belief . . . and not with some other motivation, it's because --" Harris's counsel interposed an objection, claiming the prosecutor had misstated the law.
The court overruled the objection, and the prosecutor continued: "Because the law recognizes and understands that, look, if there are just two gang members trying to kill each other, they're trying to kill each other....[S]ociety doesn't say it's okay -- when two gang members try to kill each other .... So they both don't get self-defense, because they were both trying to kill each other at the same time. The law recognizes that. [¶] . . . I'll take you back to the Westerns, when they're in the middle of the street and they're about to draw. Like both of them are intending to kill each other. But when they shoot at each other, they don't get to say, whoa, hold on, . . . self-defense. No. You purposely engaged in that mutual combat, in that mutual fight....[¶] So you can't have self-defense -- oh, I need to protect myself, plus, oh and by the way, . . . I wanted to kill him anyway." Ward's counsel objected that the prosecutor had misstated the law, but the court overruled the objection.
The prosecutor resumed: "And so in that situation you don't get self-defense because the other guy was shooting at you, if you're trying to kill that person. You also don't get self-defense because you happen to be late on the draw. [¶] .... When there is a gun battle, 99 percent of the time someone is going to be before the other person. That doesn't mean that the second person gets to claim self-defense. [¶] . . . [¶] Am I misstating the law? [¶] 'The defendant must have believed that there was an imminent danger of death or great bodily injury to himself or someone else. The defendant's belief must have been reasonable, and he must have acted only because of that belief.' [¶] That's the instruction."
During deliberations, the jury submitted a note to the trial court, stating, "We would like clarification from the prosecution on why the defendants cannot claim selfdefense." Appellants' counsel asked the court to tell the jury that the arguments of the attorneys are not evidence, and further asked that the court include in its answer the portions of the self-defense instruction stating that the prosecution had the burden of proof, and that if there was a reasonable doubt, appellants were entitled to not guilty verdicts. The court declined to direct the jury to a specific portion of the instruction, and instead submitted the following written response to the jury: "The arguments of the attorneys are completed and those arguments are not evidence. Please refer to jury instruction 505 [the selfdefense instruction]."
2. Analysis
i. The Prosecutor's Argument
Appellants claim the prosecutor misstated the law regarding self-defense in his rebuttal closing argument. "Advocates are given significant leeway in discussing the legal and factual merits of a case during argument. [Citation.] However, 'it is improper for the prosecutor to misstate the law ....'" (People v. Centeno (2014) 60 Cal.4th 659, 666.) "When attacking the prosecutor's remarks to the jury, the defendant must show that, '[i]n the context of the whole argument and the instructions' [citation], there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.'" (Id. at 667.)
Appellants claim the prosecutor incorrectly asserted that: (1) gang members can never claim self-defense; and (2) a killing in self-defense could not have occurred if the defendant had any other attitudes or beliefs, in addition to a belief in the need for self-defense. Ward adds that the prosecutor misstated the law by saying that (3) a defendant could not claim self-defense simply because he happened to be late in drawing his gun. We discern no misstatement of law in the prosecutor's argument.
First, the prosecutor never argued that gang members could not claim self-defense. To the contrary, he made clear that gang members were no different from other persons in this respect, stating: "Gang members can practice self-defense and exercise that, just like everybody else.... [¶] It depends on the situation and the circumstances.... [¶] So this isn't an issue about who it happens to be, it's an issue of what did they do, and what motivation did they have." The portion of the prosecutor's argument referenced by appellants evoked the image of a duel in "Westerns" and highlighted that if two gang members were engaged in mutual combat -- "just two gang members trying to kill each other" -- they had no valid claim of self-defense. This did not misstate the law.
Second, the prosecutor never argued that self-defense did not apply if the defendant simply had other attitudes or beliefs regarding the victim, in addition to a belief in the need for self-defense. Instead, referencing the relevant jury instruction -- which appellants do not challenge -- the prosecutor correctly argued that a defendant claiming self-defense "[m]ust have acted only because of [the] belief" that there was imminent danger of death or great bodily injury to himself, "and not with some other motivation." (Italics added.) These remarks accurately stated the law of self-defense, under which emotions other than fear "cannot be causal factors in [the defendant's] decision to use deadly force." (Nguyen, supra, 61 Cal.4th at 1045, italics added.)
As noted, a defendant may be entitled to self-defense even if the defendant felt anger or emotions other than fear at the time of the killing. (Nguyen, supra, 61 Cal.4th at 1045.)
Finally, the prosecutor did not misstate the law in discussing a defendant who was "late on the draw." In his argument, the prosecutor referenced a Western-style duel as an illustration of two gunfighters intent on killing each other, before and regardless of any need for self-defense, and argued that under those circumstances, a defendant cannot validly claim self-defense merely because he was not the first to shoot. This argument was entirely consistent with the law. (See Ross, supra, 155 Cal.App.4th at 1044, fn. 11 [involvement in mutual combat precludes reliance on self-defense unless defendant took certain steps to desist].) Quoting the mutual combat instruction (CALCRIM No. 3471), which the jury received, Ward claims the argument was misleading because "if Ward had been subjected to the use of 'sudden[] and deadly force' such that he could not withdraw then he 'had the right to defend himself with deadly force ....'" Yet the rule Ward cites is irrelevant to the duel-at-high-noon scenario referenced by the prosecutor, in which two combatants are intent on killing each other, and in which neither can validly claim self-defense.
The court's instruction under CALCRIM No. 3471 provided that a defendant who had engaged in mutual combat nevertheless had the right to self-defense if he used only non-deadly force, and the opponent "responded with such sudden and deadly force that the defendant could not withdraw ...."
Whether this scenario matched the facts of the case was for the jury to decide.
We see no reasonable likelihood the jury misunderstood the prosecutor's permissible comments or applied them in an erroneous manner. (See People v. Centeno, supra, 60 Cal.4th at 666.) Contrary to appellants' suggestion, and as discussed below, the jury's note asking for "clarification from the prosecution," did not reflect a misapprehension of the law resulting from the prosecutor's argument; rather, it expressed a desire for clarification of the People's position regarding appellants' lack of entitlement to self-defense. In sum, we find no prosecutorial error.
ii. The Court's Response to the Jury's Note
Appellants contend the trial court insufficiently answered the jury's question regarding the availability of self-defense. Section 1138 provides, "After the jury have retired for deliberation, . . . if they desire to be informed on any point of law arising in the case, . . . the information required must be given ...." (Ibid.) This provision "thereby creates a '"mandatory" duty to clear up any instructional confusion expressed by the jury.'" (People v. Loza (2012) 207 Cal.App.4th 332, 355.) "But '[t]his does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under section 1138 to determine what additional explanations are sufficient to satisfy the jury's request for information.'" (People v. Eid (2010) 187 Cal.App.4th 859, 882.) "The trial court abuses its discretion if it refuses to offer any further instruction without first considering how it can best aid the jury. [Citation.] However, the trial court does not abuse its discretion when it determines the best way to aid the jury is by directing the jury to reread the applicable jury instructions that 'are themselves full and complete.'" (People v. Lua (2017) 10 Cal.App.5th 1004, 1017 (Lua).)
Appellants assert that "jurors may have been under the impression that the defendants were categorically not entitled to claim [self-]defense," and suggest the trial court was required to "tell the jury that neither defendant was legally barred from claiming right to self-defense and that it was their duty to determine the facts." We disagree.
The jury's note did not reflect confusion about the law, but instead, sought clarification regarding the prosecution's position as to the application of the law to the facts of the case -- asking why, in the People's view, appellants had no valid claims of self-defense. The trial court reasonably responded that the arguments of counsel were completed and that those arguments were not evidence, and properly referred the jury to the instruction on self-defense. As noted, this instruction informed the jury that the People had the burden of proving beyond a reasonable doubt that the killing and the attempted killing were not justified. It is undisputed that the instruction was full and complete. Accordingly, the court did not abuse its discretion. (See Lua, supra, 10 Cal.App.5th at 1017.)
F. Removal of Juror No. 6
1. Background
Before opening statements, the trial court instructed the jury, "During the trial do not talk about the case or about any of the people or any subject involved in the case with anyone ...." At breaks in the trial, the trial court instructed the jurors not to discuss the case or make any decisions about it. After closing arguments, the trial court instructed the jury under CALCRIM No. 3550: "As I told you at the beginning of the trial, do not talk about the case or about any of the people or any subject involved in it with anyone .... [¶] . . . Do not discuss your deliberations with anyone."
During the deliberations, Juror No. 6 submitted a note to the trial court, complaining that the foreperson was unable to "maintain composure," and had thrown the jury instructions across the room. Several other jurors later submitted notes complaining about the manner in which Juror No. 6 deliberated, leading the trial court to conclude that she was a lone holdout. Two of the other jurors also complained about Juror No. 6's communication with a friend or coworker. Juror No. 8 wrote: "[Juror No. 6] and her friend laughed about her possibly being the last one. [It] almost feel[s] like it's a game to her." Juror No. 5 wrote: "She also stated she spoke to a co worker and the co worker was one that held out. She told the co worker that Oh 'I hope I am not the one that holds out!![']"
After reviewing these notes with counsel, the trial court was not concerned about Juror No. 6's ability to deliberate, but informed counsel that if she had spoken to someone about the case, "she has violated a court order and she is going to be gone."
The court then questioned Juror No. 6 outside the presence of the other jurors. The following colloquy ensued:
"[The court:] Now, my first question to you is have you spoken to a co-worker about being the holdout in this case?
"[¶] . . . [¶]
"Juror No. 6: I mentioned something that everyone was against me, but I didn't really go into detail.
"The court: Okay. When did you speak with your co-worker? "Juror No. 6: Probably two days ago.
"The court: Okay.... I gave you direct orders not to speak to anyone about this case.... And I know that you have said that you did not give details or did not speak to her at great length --[¶] . . . [¶] but you were ordered not to speak to anyone at all about this case. And from multiple notes that I've received from other jurors, you have spoken about speaking with this co-worker and about some of that conversation. [¶] . . . [¶] Not only that, . . . -- that you spoke to that coworker specifically about holding out.
"Juror No. 6: Uh-huh. "The court: Is that correct? "Juror No. 6: Yes.
"The court: At this point in time, I'm going to be removing you from this jury. You cannot speak to anyone while you're sitting on the jury.... [¶] I'm going to tell you right now, . . . and I'm not sure what's going on back there, and I know that it's been heated for many people. [¶] . . . [¶] . . . From what I have read, it seems like you were trying to participate. There is some head-butting going on and stuff - "Juror No. 6: Right. Deliberations. "The court: And it is what it is sometimes. [¶] . . .
[¶] I do appreciate that.... But I'm removing you because you violated a direct court order that I've made, I'm guessing like 20 or 25 times throughout this trial."
Harris's counsel objected to the removal of Juror No. 6, and moved for a mistrial. The court overruled the objection and denied the mistrial motion, stating that Juror No. 6 had spoken about the deliberations, thereby violating the court's order, and had therefore been removed. The court then replaced Juror No. 6 with an alternate.
2. Governing Principles
i. Authority to Remove Juror and Standard of Review
Section 1089 provides: "If at any time . . . a juror dies or becomes ill, or upon other good cause shown to the court is found to be unable to perform his duty . . . the court may order him to be discharged ...." Removing a juror is "a serious matter," implicating constitutional protections. (People v. Barnwell (2007) 41 Cal.4th 1038, 1052 (Barnwell).) Thus, "while a trial court has broad discretion to remove a juror for cause, it should exercise that discretion with great care." (Ibid., fn. omitted.) Accordingly, rather than the usual substantial evidence standard of review, a "more stringent" standard applies in review of juror removal cases, requiring that a juror's disqualification appear on the record as a "'"'"demonstrable reality."'"'" (Ibid.) This standard reflects "an appellate court's obligation to protect a defendant's fundamental rights to due process and to a fair trial by an unbiased jury." (Ibid.)
Under the demonstrable reality standard, the reviewing court considers the evidence the trial court actually relied on and the reasons it provided for its decision, rather than evidence and grounds it could have relied on. (Barnwell, supra, 41 Cal.4th at 1052-1053; People v. Henderson (2022) 78 Cal.App.5th 530, 557.) However, even under this standard, the "'"ultimate decision whether to retain or discharge a juror . . . rests within the sound discretion of the trial court."'" (People v. Peterson (2020) 10 Cal.5th 409, 472.) If the record adequately reflects the trial court's reasons for discharging a juror, and the evidence on which the court relied supports those reasons, its decision will be upheld. (Ibid.)
ii. Unauthorized Communications as Cause for Removal
Discussing the case with a nonjuror is serious misconduct that generally supports dismissal. (See People v. Wilson (2008) 44 Cal.4th 758, 838 (Wilson) ["discussing the case with a nonjuror[] is serious misconduct"]; People v. Lewis (2009) 46 Cal.4th 1255, 1309 (Lewis) [In criminal case, any private communication between juror and nonjuror "'about the matter pending before the jury'" is presumptively prejudicial].) This rule applies to communications about the general conduct of deliberations, as well as to those about the evidence and the defendant's guilt. (See Lewis, supra, at 1309 [applying presumption of prejudice where juror discussed conduct of deliberations with her husband, but ultimately concluding presumption was rebutted].) Our Supreme Court has explained that "a judge may reasonably conclude that a juror who has violated instructions to refrain from discussing the case . . . cannot be counted on to follow instructions in the future." (People v. Daniels (1991) 52 Cal.3d 815, 865 (Daniels); accord, People v. Ledesma (2006) 39 Cal.4th 641, 743 (Ledesma).)
Appellants quote People v. Albert (2020) 50 Cal.App.5th 743 (Albert), suggesting that unauthorized juror communications are presumptively prejudicial only if "'"the content of the communication was about the matter pending before the jury, i.e., the guilt or innocence of the defendant."'" (Id. at 749-750.) The same language appears in other cases as well. (See In re Hamilton (1999) 20 Cal.4th 273, 287 (Hamilton); People v. Chavez (1991) 231 Cal.App.3d 1471, 1485 (Chavez); People v. Federico (1981) 127 Cal.App.3d 20, 38-39 (Federico).) But none of these cases had any occasion to distinguish between discussions about guilt or innocence and those about the conduct of deliberations. (See Albert, supra, at 747 [defendant's brother approached juror at home and said, "'you are a juror on my brother's case'"]; Hamilton, supra, at 287 [juror observed defendant's sister parked outside juror's home]; Chavez, supra, at 1485 [juror spoke with witness about matter unrelated to case]; Federico, supra, at 38-39 ["one juror had received an 'apparently threatening' telephone call and another juror received a Santa Claus figurine with a noose around its neck"].) The import of this language is that communications that are unrelated to the conduct of trial are not presumptively prejudicial. Deliberations are, self-evidently, related to the conduct of trial.
iii. Analysis
Appellants contend the trial court abused its discretion in removing Juror No. 6, arguing her conduct did not constitute misconduct. We disagree.
Juror No. 6 violated the trial court's instructions by talking to her coworker about the juror's being a holdout. She did so despite being instructed multiple times not to discuss the case with anyone, and despite being specifically instructed, shortly before the jury began its deliberations, not to discuss the deliberations with anyone. Contrary to appellants' contention, this communication with a nonjuror regarding the conduct of deliberations constituted serious misconduct and grounds for removal, regardless of whether it also related to the merits of the case. (See Wilson, supra, 44 Cal.4th at 838; Lewis, supra, 46 Cal.4th at 1309.)
Moreover, the trial court informed Juror No. 6, "I'm removing you because you violated a direct court order that I've made, I'm guessing like 20 or 25 times throughout this trial," reflecting the court's finding that the juror was either unwilling or unable to follow its instructions, and had therefore shown she could not be trusted to fulfill her duties. The facts on which the court relied support the court's conclusion. (See Barnwell, supra, 41 Cal.4th at 1052; Daniels, supra, 52 Cal.3d at 865; Ledesma, supra, 39 Cal.4th at 743.) The court did not abuse its discretion.
G. Continued Validity of the Provocative Act Doctrine
1. Governing Principles
Under the theory of provocative act murder, the perpetrator of a crime may be held liable for the killing of another by a third party who attempts to stop the perpetrator's commission of the crime. (Mejia, supra, 211 Cal.App.4th at 602.) "Reduced to its essence, the theory of provocative act murder may be stated as follows: '[W]hen the perpetrator of a crime -- with a conscious disregard for life -intentionally commits an act that is likely to result in death and the crime victim kills in reasonable response to that act, the perpetrator is guilty of murder.'" (Ibid.) Thus, "[a] murder conviction under the provocative act doctrine . . . requires proof that the defendant personally harbored the mental state of malice" (People v. Gonzalez (2012) 54 Cal.4th 643, 655 (Gonzalez)), i.e., it requires proof that at a minimum, the defendant "knowingly act[ed] with conscious disregard for the danger to life that [his or her] act pose[d]" (id. at 653).
In this context, the phrase "'reasonable response'" is "a legal term of art equivalent to 'proximate cause.'" (People v. Gardner (1995) 37 Cal.App.4th 473, 481.) Under the provocative act doctrine, the victim's response need not be reasonable. (Ibid.)
Enacted in 2018, SB 1437 amended the felony murder rule and the natural and probable consequences doctrine, as it relates to murder, to ensure that murder liability is not imposed on a person who is not the actual killer, did not act with the intent to kill, and was not a major participant in the underlying felony who acted with reckless indifference to human life. (People v. Gentile, supra, 10 Cal.5th at 838, 842.) Among other things, SB 1437 added section 188, subdivision (a)(3), which provides that with limited exceptions, "in order to be convicted of murder, a principal in a crime shall act with malice aforethought" and that "[m]alice shall not be imputed to a person based solely on his or her participation in a crime." (§ 188, subd. (a)(3).) SB 1437 also "added section 1170.95 to provide a procedure for those convicted of felony murder or murder under the natural and probable consequences doctrine to seek relief ...." (Gentile, supra, at 843.) Because the provocative act doctrine does not permit a conviction based on imputed malice, SB 1437's changes did not affect those convicted under that doctrine. (People v. Lee (2020) 49 Cal.App.5th 254, 258, review granted Jul. 15, 2020, review dismissed Nov. 23, 2021, S262459 ["Provocative act murder requires proof of malice, which distinguishes it from felony murder and natural and probable consequences murder. Lee therefore is not entitled to resentencing under section 1170.95"].)
"Under the natural and probable consequences doctrine, '[a]n aider and abettor is guilty not only of the intended, or target, crime but also of any other crime a principal in the target crime actually commits (the nontarget crime) that is a natural and probable consequence of the target crime.'" (People v. Vega-Robles (2017) 9 Cal.App.5th 382, 433-434, disapproved of on another ground by People v. Valencia (2021) 11 Cal.5th 818, 839.) Before SB 1437, a murder conviction under this doctrine required no proof of malice by the defendant. (People v. Gentile (2020) 10 Cal.5th 830, 838, 845 (Gentile).)
In 2021, the Legislature enacted SB 775. (People v. Montes (2021) 71 Cal.App.5th 1001, 1004.) As relevant here, SB 775 modified section 1170.95 to provide that a person convicted of murder could petition for relief if he or she was convicted under any theory under which malice is imputed based solely on the person's participation in a crime. (§ 1170.95, subd. (a).)
2. Analysis
Harris contends SB 1437 and SB 775 have invalidated the provocative act doctrine and therefore preclude his conviction of Franklin's murder. We disagree, and conclude the provocative act doctrine remains valid following these enactments.
Whether the provocative act doctrine has been abrogated is an issue of statutory interpretation, which we review de novo. (People v. James (1998) 62 Cal.App.4th 244, 261.) As Harris notes, the new legislation precludes murder conviction under theories that allow for malice to be imputed due solely to participation in a crime. (§ 188, subd. (a)(3).) But as explained, the provocative act doctrine does not impute malice based solely the defendant's participation in a crime -- it "requires proof that the defendant personally harbored the mental state of malice ...." (Gonzalez, supra, 54 Cal.4th at 655.)
Harris contends the theory of provocative act murder imputes malice based only on participation in a crime because it permits a conviction even where the defendant "did not act with express or implied malice as to the homicide victim ...." (Italics added.) But the crime of murder does not require malice "as to" the person killed. If the defendant acts with malice, he or she is generally liable for the murder of those killed as a result, even if the defendant did not harbor malice "as to" the persons killed. (See, e.g., People v. Concha (2009) 47 Cal.4th 653, 660 [express malice]; People v. Taylor (2004) 32 Cal.4th 863, 868 [implied malice].)
Harris also contends that the provocative act doctrine incorporates the natural and probable consequences theory, pointing to CALCRIM No. 560's requirement that the victim's death was "the natural and probable consequence" of the defendant's provocative act. But as our colleagues in Division Seven recently explained, "[c]onsideration of the natural and probable consequence of the defendant's conduct in the context of provocative murder, as with any case of implied malice murder, relates to proximate cause -- that is to the actus reus element of the crime, not the mens rea element that was the focus of Senate Bill 1437." (People v. Mancilla (2021) 67 Cal.App.5th 854, 868, fn. omitted.) "'The . . . analysis of proximate cause in terms of foreseeability of the natural and probable consequences of the defendant's malicious conduct does not somehow bring a provocative act killing within the malice-free natural and probable consequences doctrine.'" (Ibid.)
Finally, Harris claims that to the extent SB 1437 did not invalidate the provocative act doctrine, it violated equal protection principles because it treated those convicted under that doctrine differently from those convicted under the natural and probable consequences doctrine, despite the fact that both "were convicted of murder under a theory of imputed malice ...." This argument, too, lacks merit because, as explained, a murder conviction under the provocative act doctrine require proof that the defendant personally harbored malice. (Gonzalez, supra, 54 Cal.4th at 655.) Accordingly, the provocative act doctrine remains viable following the enactment of SB 1437 and SB 775. Thus, the People will not be precluded from retrying Harris for murder under this theory.
DISPOSITION
Appellants' convictions for second-degree murder and attempted murder are reversed. Their remaining convictions are affirmed. Their sentences are vacated, and the matter is remanded. The People shall have 60 days from issuance of the remittitur to decide whether to retry appellants for second-degree murder and attempted murder, without allegations that the attempted murders were willful, deliberate, and premeditated. If the People do not elect to retry these charges, appellants' murder and attempted murder convictions shall be reduced to voluntary manslaughter and attempted voluntary manslaughter, respectively, the enhancement allegations under section 12022.53, subdivision (d) shall be stricken, and the trial court shall resentence them accordingly. Following appellants' resentencing, the trial court shall prepare amended abstracts of judgment and send certified copies to the Department of Corrections and Rehabilitation."
We concur: WILLHITE, J., CURREY, J.