P. v. Alcaraz

Filed 1/14/10 P. v. Alcaraz CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

I. Introduction

Defendant Thomas Eugene Alcaraz and his brother Ruben were in a car when four men violently attacked them. One of them hit defendant with a broken bottle, and then he and another punched and beat him while the two other assailants beat Ruben. When a police officer arrived, three of the assailants ran off. When the fourth fled, defendant immediately retrieved a gun and shot and killed him.

The jury was instructed on murder and voluntary manslaughter under three theories, including heat of passion. Under that theory, the malice required for murder is negated and murder is reduced to manslaughter where the defendant was provoked, he or she acted rashly under the influence of an intense emotion, and the provocation was enough to cause a person of average disposition to act rashly. Here, however, because of instructional error, jurors were erroneously led to believe that the provocation would also have to cause an average person to do what defendant didi.e., shoot and kill someone in front of the police.

Although the jury convicted defendant of murder, the instructional error undermines our confidence in the verdict. There was ample evidence of provocation to raise a reasonable doubt about whether defendant acted with malice, and we find that in the absence of the instructional error, it is reasonably probable that at least one juror would have had such a doubt. Accordingly, we reverse the judgment.

II. Statement of the Case

Defendant Thomas Eugene Alcaraz pleaded no contest to being a misdemeanant in possession of a firearm, and a jury convicted him of second degree murder and reckless driving while fleeing a peace officer and further found that in committing the murder, defendant personally and intentionally discharged a firearm causing death. (Pen. Code, 187, 189, 12021, subd. (c)(1), 12022.5, subd. (c), 12022.53, subd. (c); Veh. Code,  2800.2, subd. (a).)[1] The court sentenced him to a prison term of 40 years to life.

On appeal from the judgment, defendant claims there is insufficient evidence to support his conviction for second degree murder. He claims the court erred in excluding toxicological evidence concerning the victim and admitting gang-related evidence. He claims the courts murder and heat-of-passion voluntary manslaughter instructions were flawed. And he claims the court erred in instructing on mutual combat and contrived self-defense and in failing to instruct on involuntary manslaughter. He also claims the prosecutor was guilty of misconduct and defense counsel rendered ineffective assistance.

We find that there was instructional error concerning the proper standard for determining the sufficiency of provocation in connection with heat of passion voluntary manslaughter and reverse the judgment.

III. Facts

On March 6, 2005, around 2:00 a.m., Lieutenant Laurence Ryan of the San Jose Police Department was patrolling in downtown San Jose and observed a rowdy group of individuals, including defendant and his brother Ruben, yelling at passing cars. Defendant was very agitated, and Ruben ran into the street and challenged the occupants of one particular vehicle. Lieutenant Ryan flashed his spotlight on the group, and everyone stopped and went on their way.

That same evening, Lee Mitchell, Pablo Garcia, Peter Sanchez, and Joshua Vroom, the murder victim, were out drinking and later got a room at the Crowne Plaza Hotel to party with some girls. After the girls left, the group went to the parking garage to get Sanchezs Ford Expedition. As they looked for it, Vroom separated from them. The others found the vehicle and then went to get Vroom. When they found him, he was surrounded a group of men who were yelling Norte, Fuckin White Boy, and profanities at him. According to Mitchell, there were about eight people surrounding Vroom, including defendant. Vroom, who is African-American, was in a defensive posture, ready to fight if necessary. Defendant, who had a brace on his hand, seemed agitated and aggressive and yelled more than the rest. He yelled, Fuck you guys, this is Norte, and lifted up his short to reveal a tattoo. He said they were Norteos from Stockton and told them to get the fuck out of here. It seemed to Mitchell that defendant was trying to provoke something. Defendant put his hand in his pocket as if he were going to grab a weapon. During the confrontation, Sanchez said that he and his friends were Norte too and lifted his shirt to reveal a tattoo associated with Norteo gangs. Nevertheless, defendant challenged Vroom to a fight. Sanchez suggested a one-on-one fight. According to Mitchell, defendant backed down, saying, Oh, now you are going to fight with a one-armed man. It seemed to Mitchell that defendant did not want to fight for fear of losing. Sanchez said they should not be fighting. Ultimately nothing happened between defendant and Vroom or the two groups. Although the situation calmed down, Mitchell noticed that defendant still seemed angry, and Mitchell remained concerned because his group was outnumbered, and he thought defendant might have a weapon. Mitchell and the others then left in the Expedition. Defendant and Ruben left in a Cadillac; the rest of defendants group left in an Oldsmobile.

Mitchell testified that within a couple of blocks he saw the same two cars, one behind and the other to the side, and the two groups saw each other. Mitchell said that the Cadillac and Oldsmobile were kind of following them for a few blocks, and then, near a freeway on-ramp, the Oldsmobile pulled in front of the Expedition and stopped abruptly. The Cadillac, driven by defendant, was still behind. Mitchell testified that one or two people in the Oldsmobile got out. One threw a crowbar at the Expedition, which hit the hood, and then they reentered the car and drove farther up the on-ramp.[2] Mitchell said that they could have left, but instead he grabbed a wine bottle, and then he and his friends jumped out and ran back to the Cadillac. He opened the door, swung the bottle, broke it on the roof, and hit defendant with it. Then he and Sanchez started punching and kicking defendant, who was still in his seat belt. At the same time, Garcia and Vroom attacked Ruben. Within moments, Mitchell saw a police car and yelled cop, Mitchell, Sanchez, and Garcia immediately ran back to the Expedition. Mitchell heard gunshots and remembered seeing Vroom back at the Cadillac. By this time, the Oldsmobile had reversed back toward the Expedition, but the Expedition headed up the on-ramp, and then both vehicles sped on to the freeway.

Garcia admitted that at the time of the incident he regularly abused alcohol and drugs, and after the incident he gave false information to the police. He testified that that night, he and others were driving around, drinking, and smoking marijuana. They went to a strip club and then rented a hotel room and called some escorts. Later, in the hotel parking lot, he, Sanchez, and Mitchell saw Vroom surrounded by four or five men who were taunting him. Sanchez asked if there was a problem, saying we can go one[-on-]one right now and identifying himself as a homeboy. At that point, defendant and another person joined the group surrounding Vroom. Defendant had his hand in his pocked and said, It aint going down like that. Some of defendants group started to disperse, but others were still talking shit. Defendant was the last to join his friends. Everyone then got into their vehicles and left.

Garcia was in the front passenger seat, faded, being intoxicated, and not paying much attention. At a stop light, Sanchez pointed out the two cars again, one on the side with several passengers, and one in back with two passengers. As all three vehicles headed onto a freeway on-ramp, one of the cars pulled in front and then stopped. Garcia did not see anyone get out of the vehicle or throw a crowbar. Nevertheless, he felt that something was going to happen, and to even up the odds a little bit, he and the others got out, ran back to the Cadillac, and started assaulting defendant and Ruben. He did not see anyone with a bottle. Within less than a minute, Garcia saw a police spotlight and ran back to the Expedition. At that point, he saw three or four people from the car in front returning to their car. Inside the Expedition, he looked back, saw a gun flash from the drivers side of the Cadillac, and heard several shots. Although he thought everyone had made it back to the Expedition, he saw Vroom standing near the Cadillac, frozen. Sanchez drove away, passing the car that had been blocking them.

Just before the shooting, Officer Michael ONeill of the Milpitas Police Department was driving near the freeway on-ramp. He saw three cars coming toward him and noticed that one of them abruptly cut in front of another vehicle. A short time later, he saw an Expedition enter the on-ramp and a Cadillac behind it. The Expedition stopped suddenly. Four or five men got out, ran back to the Cadillac, and started assaulting the driver and passenger. He could not remember what happened to the third vehicle; nor did he remember seeing a third car on the on ramp blocking the Expedition. He would have noted it in his report if he had. Officer ONeill pulled in about 40 yards behind the Cadillac, made a radio call of an assault in progress, and pointed his spotlight on the car. All of the assailants except one ran back to the Expedition, which then headed up the on-ramp and stopped. As that was happening, the remaining assailant (Vroom) continued to assault the passenger. Officer ONeill saw the driver reached down for something on the floorboard. He made eye contact with Vroom, who, when he realized that the Expedition had moved up the ramp, turned away from the Cadillac and ran. As Vroom fled, the driver reappeared, extended his arm across the passenger seat, and, pointing the gun at Vroom, rapidly fired it several times. When the first shots were fired, Vroom was three or four feet from the passenger door with his back toward the Cadillac. Officer ONeill did not see whether Vroom was hit. At that point, the Expedition sped away. As Officer ONeill got out of the car to approach the Cadillac, it too sped away up the ramp. He returned to his patrol car and followed it. He was joined by Lieutenant Ryan, and after a dangerous, high speed chase, defendant pulled over, and the officers arrested him and Ruben. Defendant was bloody and had injuries to his arm and body. There was also blood in and on the car.

Police did not know that Vroom had been shot and did not find him at the scene. Mitchell testified that he and Garcia later returned to the scene. They saw police cars but not Vroom. There were no ambulances, so they thought Vroom had escaped. Later, Garcia, who lived with Vroom, told Vrooms mother that there had been an altercation but did not elaborate. She became concerned and the next day called the missing persons unit of the police department, which had no information. Over the next couple of days, she continued to learn more details about what had happened from Garcia, and on March 9, she called the homicide division and reported the incident. Police returned to the scene, searched the area, and finally found Vrooms body in some tall grass.

Vroom died from two gunshot wounds to his torso. One entered his back and exited his chest; the other entered his left side and lodged in his shoulder; and both perforated internal organs, causing fatal injuries.

Further investigation and testing revealed gunshot residue on defendants right and left hands and his wrist brace. Residue was not found anywhere else. An expert testified that Vroom was between two and eight feet away when shot. Inside the Cadillac, police noticed a hidden compartment under the center console floorboard and inside found a holster. They also found part of a broken wine bottle. They never found the murder weapon. An expert testified that the bullet recovered from Vrooms body could have been fired from only four types of guns, and the holster was designed to fit one, possibly two, of them.

IV. The Sufficiency of the Evidence

Defendant contends that there is insufficient evidence to support his murder conviction.

Where a defendant is entitled to instructions on voluntary manslaughter under the theory of provocation/heat of passion as a lesser offense to a charge of murder, the jury may find the defendant guilty of murder only if the prosecution proves beyond a reasonable doubt that the defendant did not kill in the heat of passion after being provoked. (People v. Rios (2000) 23 Cal.4th 450, 462.) Accordingly, the court here instructed the jury, The People have the burden of proving beyond a reasonable doubt the defendant did not kill as the result a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder.

Defendant claims the evidence that he killed Vroom in the heat of passion was so strong that no rational juror could have found otherwise beyond a reasonable doubt. In particular, he notes that he shot Vroom almost immediately after Mitchell brutally assaulted him with a bottle and continued to beat and kick him along with Sanchez and while Vroom was still assaulting Ruben. We are not persuaded.

The evidence reasonably supports a finding that even though the confrontation in the parking garage ended, defendant had residual hostility toward Vroom and his friends because he had been very aggressive, taunting, and belligerent toward Vroom and initially had challenged him to a fight but had backed down from a counter-challenge. Indeed, Garcia testified that after it appeared that defendant would not fight anyone, some of defendants friends continued talking shit, and defendant was the last to leave. Mitchell testified that defendant still seemed angry.

Moreover, it is undisputed that Vroom did not personally assault defendant. Mitchell and Sanchez, who did assault him, had fled before defendant retrieved his gun. And defendant shot Vroom after Vroom had stopped assaulting Ruben and was retreating with his back toward defendant. Given Officer ONeills testimony, jurors could have found that when defendant shot Vroom, neither defendant nor Ruben was being assaulted or further threatened. Accordingly the jurors reasonably could have further found that defendant did not act in the heat of passion or with an honest belief in the need for defend himself or Ruben. Rather, they could have found that once he saw Vroom running away, he retrieved the gun from the secret compartment and shot Vroom because of his preexisting hostility toward him and a desire to get back at him and the others. In other words, the record supports a finding of malice and the absence of heat of passion.

V. Instructional Error Concerning the Sufficiency of Provocation

Defendant contends that the courts heat-of-passion instruction was flawed because it provided an erroneous standard for determining the sufficiency of provocation.

A defendant commits voluntary manslaughter, not murder, when he or she unlawfully kills another person upon a sudden quarrel or heat of passion. ( 192, subd. (a).) The heat of passion requirement for manslaughter has both an objective and a subjective component. [Citation.] The defendant must actually, subjectively, kill under the heat of passion. [Citation.] But the circumstances giving rise to the heat of passion are also viewed objectively. . . . [T]his heat of passion must be such a passion as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances, because no defendant may set up his own standard of conduct and justify or excuse himself because in fact his passions were aroused, unless further the jury believe that the facts and circumstances were sufficient to arouse the passions of the ordinarily reasonable man. [Citation.] (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253, italics added.)

In instructing the jury, the court used a former version of CALCRIM No. 570. In relevant part, the court stated, A killing that is otherwise be murder is reduced to voluntary manslaughter if the defendant killed someone in a sudden quarrel or in the heat of passion. [] The defendant killed someone because of a sudden quarrel or in the heat of passion if: [] (1) The defendant was provoked; [] (2) As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reason or judgment; and [] (3) The provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. [] Heat of passion does not require anger, rage or any specific emotion. It can be any violent or intense emotion that causes a person to act without due deliberation and reflection. [] In order for heat of passion to reduce a murder to voluntary manslaughter, the defendant must have acted under the direct and immediate influence of provocation as I have defined it. While no specific type of provocation is required, slight or remote provocation is not sufficient. Sufficient provocation may occur over a short or long period of time. [] It is not enough that the defendant was simply provoked. The defendant is not allowed to set up his own standard of conduct. You must find whether the defendant was provoked and whether the provocation was sufficient. [] In deciding whether the provocation was sufficient, consider whether a person of average disposition would have been provokedand how such a person would react in the same situation knowing the same facts. []  . . .  [] The People have the burden of proving beyond a reasonable doubt the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder. (Italics added; see fn. 5, post.)

Defendant claims that the italicized language misstates the standard for the sufficiency of provocation.

The courts instruction describes the subjective and objective elements of heat of passion; and, as to the latter, it informs jurors that the defendant must have acted as a result of provocation that would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. (CALCRIM No. 570.) This language reflects the correct standard. (People v. Manriquez (2005) 37 Cal.4th 547, 583-584 [conduct sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection].)

Next, the instruction tells jurors that they must decide whether the defendant was provoked (the subjective component) and whether the provocation was sufficient (the objective component). (CALCRIM No. 570.) To guide the latter determination, the instruction directs jurors to consider (1) whether an average person would have been provoked; and (2) how an average person would have reacted under the same circumstances. Defendants challenges the propriety of the second consideration.

Directing jurors to consider how an average person would react is not necessarily incorrect or inconsistent with the correct standard because it encompasses a proper focus on whether an average person would react rashly and without due deliberation. (CALCRIM No. 570.)

However, the instruction does not clearly and properly limit the jurors focus to whether an average person would act rashly. The challenged language naturally invites jurors to consider what would and would not be a reasonable response to the provocation. More specifically, the instructional directive allows, if not encourages, jurors to consider whether the provocation would cause an average person to do what the defendant did: commit a homicide. However, as we explain below, whether an average person would be provoked to kill is not a proper consideration in determining whether provocation was sufficient. Thus, insofar as the instructional language permits the jury to decide a crucial issue based on proper and improper considerations, it is ambiguous.[3]

In People v. Najera (2006) 138 Cal.App.4th 212 (Najera), the trial court instructed the jury on voluntary manslaughter. During final argument, the prosecutor focused on how the killer responded to the provocation and argued that it would not cause an average person to kill. On appeal, the court concluded that such argument was erroneous and improper. The court explained, The focus [of a heat of passion defense] is on the provocationthe surrounding circumstancesand whether it was sufficient to cause a reasonable person to act rashly. How the killer responded to the provocation and the reasonableness of the response is not relevant to sudden quarrel or heat of passion.[4] (Id. at p. 223.)

Najeras analysis of the prosecutors argument is sound. It simply reinforces the long-standing, qualitative standard for provocationi.e., that it be sufficient to cause an ordinarily reasonable person to act from passion rather than judgment. (See People v. Hurtado (1883) 63 Cal. 288, 292 [provocation sufficient to excite an irresistible passion in a reasonable person]; People v. Logan (1917) 175 Cal. 45, 49 [provocation sufficient to arouse the passions of the ordinarily reasonable man]; People v. Manriquez, supra, 37 Cal.4th at pp. 583-584 [conduct sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection].)

More importantly, the Najera analysis prevents this qualitative standard from being distorted by the quantitative notion that to reduce murder to voluntary manslaughter, provocation must reasonably trigger a certain heightened level of reactive conducti.e., lethal force. Such a notion is erroneous. What negates malice and thus reduces an unlawful killing in the heat of passion from murder to voluntary manslaughter is simply a state of mindobscured by passion. (People v. Carasi (2008) 44 Cal.4th 1263, 1306; People v. Johnston(2003) 113 Cal.App.4th 1299, 1311.) That passionate state of mind can be any violent, intense, high-wrought, or enthusiastic emotion, except revenge, including anger, rage, and fear of death or bodily harm. (People v. Lasko (2000) 23 Cal.4th 101, 108; People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704-1705; People v. Aris (1989) 215 Cal.App.3d 1178, 1203, disapproved on other grounds in People v. Humphrey (1996) 13 Cal.4th 1073, 1089.) Thus, for the purpose of negating malice, provocation is sufficient if it would trigger such a state of mind in a reasonable person. It need not further cause a particular level of conduct, let alone cause a reasonable person to react with lethal violence.[5]

With this in mind, we return to defendants claim of instructional error. The mere fact that CALCRIM No. 570 is ambiguous does not, standing alone, establish instructional error. The determinative question is whether there is a reasonable likelihood that the jury misconstrued or misapplied the law in light of the instructions given, the entire record of trial, and the arguments of counsel. [Citations.] (People v. Dieguez (2001) 89 Cal.App.4th 266, 276-277; People v. Fiu (2008) 165 Cal.App.4th 360, 370-371; see Estelle v. McGuire (1991) 502 U.S. 62, 72; Boyde v. California (1990) 494 U.S. 370, 378-381; People v. Mayfield (1997) 14 Cal.4th 668, 777 [For ambiguous instructions, the test is whether there is a reasonable likelihood that the jury misunderstood and misapplied the instruction.]; e.g., People v. Moore (1988) 47 Cal.3d 63, 87-89; People v. Kelly (1992) 1 Cal.4th 495, 526.)

Concerning heat of passion voluntary manslaughter in general and provocation in particular, the prosecutor, in his opening argument, asserted There was no reason for [Vroom] to be killed other than one, [defendant] was mad. He was mad. [] Were going to talk about the law of homicide and whether someone would be mad and a lot of people would be mad getting hit on the arm, but you have to determine not only was [defendant] mad, . . . but would a reasonable person react [in] the same way [defendant] did even if [he or she] was mad? Was it reasonable to shoot someone in the back because he was mad? And thats what you have to decide and its really a simple decision.

Later, the prosecutor argued that being angry doesnt amount to justification or excuse, we know that. And we know how angry the defendant was because he wasnt deterred by the fact that the people attacking him had left. . . .  He as not deterred by Joshua Vroom retreating. . . .  [] He wasnt deterred by Ruben Alcaraz not being injured. . . .  He wasnt deterred by the police being there. Eeryone else new the police was there except the defendant and he wasnt deterred by any of that because he was mad.

The prosecutor continued that the issue for the jury was whether it [was] reasonable for the defendant to have reacted the way he did[.] In a situation [where someone comes home and sees their loved one having an affair with another person], you might decide I can understand that that person was really emotionally involved and I can understand that did what they did under those circumstances. [] It doesnt mean that they are not guilty of the crime, they still get punished for hitting someone with a candlestick and it kills them, but under certain circumstances[] [w]e will look at the provocation and if the provocation was high enough and it seems to be in accord with it [sic], we are not going to convict someone with [sic] murder[;] we will convicted them of voluntary manslaughter. [] Here, you look at the provocation. He gets cut on the arm. He was looking for a fight, he was angry. He had a gun and he was ready to use it. Everyone had run away. The police were there. The person that got shot wasnt even the person that attacked him. That provocation does have a reasonable response of shooting him in the back. [] For voluntary manslaughter you have to prove that a person of average disposition would have been enraged the same way and would have acted the same way and here for the facts as detailed, you might have been mad if you were hit in the arm. You wouldnt have shot Joshua Vroom in the back with the cops sitting behind you and you running away. Let alone take off when the police are there.

The prosecutor revisited the courts instruction that a person might not be guilty of murder if he was reasonably provoked and acted reasonably or if he was reasonably provoked and honestly thought [he] needed to use [that] deadly force in response. However, the prosecutor argued that defendant did not act reasonably.

In his closing argument, the prosecutor continued to emphasize that a reasonable person would not have responded the way defendant did. We know that there was not sufficient provocation that would support a reasonable person doing this.

Later, the prosecutor reiterated the example of a spouse who kills in reaction to discovering an affair. We are not going to convict you of murder, we will convict the husband or the wife with voluntary manslaughter because they are provoked and they responded like an average person would. They dont have a right to kill someone because they were sleeping with a loved one, but its not going to be murder under those circumstances. [] In the heat of passion, thats like I am really mad because I got hit in the arm, but in order to do that not only [does] what caused the heat of passion have to be reasonable, it would have angered everyone as much as the defendant, but the response has to be reasonable and here shooting someone in the back with a police officer just a few feet away when hes running away, the person who got shot, when everyone else has left and when you have a gun in your car ready to go, thats not a reasonable response. So [defendants] not entitled to heat of passion. You cant shoot someone in the back when they dont pose a danger to you because you are mad.

The prosecutors argument was essentially the same as the improper argument in Najera and reflected the wrong standard for provocation and a misapplication of the instructional language in CALCRIM No. 570.[6]

We note that the court instructed the jurors that [i]f you believe that the attorneys comments on the law conflict with my instructions, you must follow my instructions. (Italics added; see CALCRIM No. 200.) And, we may presume that jurors would understand and follow that instruction. (See People v. Hovarter (2008) 44 Cal.4th 983, 1005; People v. Valladares (2009) 173 Cal.App.4th 1388, 1400.) Here, however, it is not reasonable to presume that jurors disregarded the prosecutors erroneous argument because it was entirely consistent with courts instruction and, therefore, jurors had no reason to find a conflict and disregard it.

These circumstances distinguish this case from Najera, where the reviewing court presumed the jury followed the courts warning and disregarded the prosecutors improper argument, which was inconsistent with CALJIC No. 8.42 given in that case. (See fn. 3, ante.)

Here, the court directed the jury to use the challenged instructional language as an analytical tool in determining whether provocation was sufficient. Given its purpose, its ambiguity, and the prosecutors improper and erroneous argument, we find a reasonable likelihood that the jury misunderstood how to determine the sufficiency of provocation and erroneously believed that, to be sufficient, provocation had to be such as would cause an average person to react the way defendant did shoot a fleeing victim in the back in front of a police officer.

Having determined that there was instructional error, we turn to the issue of prejudice.

Defendant contends the instructional error violated his federal constitutional right to due process and, therefore, must be reviewed under the federal standard for prejudicial error set forth in Chapman v. California (1967) 386 U.S. 18. However, heat of passion voluntary manslaughter is a lesser included offense of second degree murder, and it is settled that failing to instruct, failing to give adequate instructions, and giving erroneous instructions on a lesser included offense constitute errors of state, not federal, law. (People v. Lasko, supra, 23 Cal.4th at pp. 111-113; People v. Blakeley (2000) 23 Cal.4th 82, 93; People v. Lee (1999) 20 Cal.4th 47, 62 (Lee); People v. Breverman (1998) 19 Cal.4th 142, 164-179.) Thus, we review the error under the standard set forth in People v. Watson (1956) 46 Cal.2d 818 and determine whether it is reasonably probable defendant would have obtained a more favorable result in the absence of the instructional error.

The Attorney General argues that any error was harmless because the evidence shows unequivocally that appellant was the provocateur. He notes that defendant and his friends were out that night yelling at cars. Later, defendant confronted Vroom in the parking garage and wanted to fight him, and at that time, he had his hand in his pocket, ready to take out a gun to use in any confrontation. Then, after Vroom left the garage, defendant and his group chased Vroom and his friends, stopped and trapped them on the on-ramp, and threw a crowbar at their vehicle. According to the Attorney General, Vroom had no choice but to attack defendant and Ruben. Then, when Vroom saw Officer ONeill, turned, and ran, defendant took out a gun and shot him in the back. The Attorney General argues that under the circumstances, [t]here is no question as to whether there was provocation sufficient to incite or provoke a rash response in a reasonable person. Vroom did nothing to provoke appellant. Any modification of the instructions would not have made any difference in this case. In essence, the Attorney General claims that there was such overwhelming evidence of malice and such slight evidence of provocation, it is unlikely that any juror would have had a reasonable doubt about whether defendant acted with malice even absent the instructional error. We do not agree with this analysis.

The provocation which incites the defendant to homicidal conduct in the heat of passion must be caused by the victim [citation], or be conduct reasonably believed by the defendant to have been engaged in by the victim. [Citations.] (Lee, supra, 20 Cal.4th at p. 59.) Except for revenge, passion so provoked can be any violent, intense, high-wrought or enthusiastic emotion, including anger, rage, and fear of death or bodily harm. (People v. Lasko, supra, 23 Cal.4th at p. 108; People v. Fenenbock, supra, 46 Cal.App.4th at pp. 1704-1705; People v. Aris, supra, 215 Cal.App.3d 1178, 1203.) The provocative conduct may be physical or verbal, and it may comprise a single incident. (People v. Wharton (1991) 53 Cal.3d 522, 569.) Although a simple tussle may not be enough to inflame the passions of an average person (e.g., People v. Gutierrez (2009) 45 Cal.4th 789, 827), a more severe physical attack can constitute sufficient provocation. (E.g., People v. Elmore (1914) 167 Cal. 205, 211 [physical blows sufficient provocation]; People v. Castro (1940) 37 Cal.App.2d 311, 315 [attack with a knife sufficient provocation to mandate instructions].)

With these principles in mind, we turn to the facts of this case. We do not find the evidence of malice to be overwhelming or the evidence of provocation to be slight.

Although at one point after Vroom was surrounded by defendants group, defendant challenged him to a fight, it is unclear who provoked that initial encounter or how it started. In any event, it is undisputed that once Mitchell, Sanchez, and Garcia joined Vroom, certain people in each group exchanged gang related statements, displayed gang tattoos, and challenged and counter-challenged each other. After a while, the incident ended without a fight, and both groups left each other and drove away.

Next, we note that Mitchell and Garcia, whose credibility the jury could question because of their relationships to Vroom and their participation in the incident, provided inconsistent versions of what happened on the on-ramp. Mitchell said an Oldsmobile cut them off, some of its passengers got out and threw a crowbar at them, and then they returned to the car and left. Garcia, whose credibility was further undermined by his admitted alcohol and drug use that night and his initial falsehoods to police, agreed that the Oldsmobile pulled in front of them. However, despite being in the front seat, he did not see anyone get out, let alone see someone throw a crowbar. Moreover, the police never found a crowbar. Garcia also did not say that the Oldsmobile drove away. Rather, he testified that after stopping, he, Mitchell, Sanchez, and Vroom jumped out and ran back to the Cadillac to assault defendant and Ruben.

In contrast to their conflicting testimony, Officer ONeill said that he observed an Expedition followed by a Cadillac, saw the Expedition suddenly stop, and then watched as four or five men got out of it, ran back to the Cadillac, and started assaulting the driver and passenger. Officer ONeill did not see a third car blocking the Expedition; nor did he see passengers from some third car get out and throw a crowbar at the Expedition.

Thus, as defense counsel emphasized during closing argument, Officer ONeills relatively unbiased testimony supported a finding that there was no third car in front of the Expedition boxing it in; instead, the Expedition forced the Cadillac to stop so that Mitchell, Sanchez, Garcia, and Vroom could assault defendant and Ruben.

What happened next was essentially undisputed. Mitchell hit defendant with a broken bottle, cutting his arm, and he and Sanchez then punched and kicked him while he remained stuck in his seat belt. At the same time, Garcia and Vroom punched and kicked defendants brother Ruben. Moments after the assault began, Officer ONeill illuminated the area with his spotlight, and Mitchell, Sanchez, and Garcia fled. Vroom continued his assault for a few second, then turned, and also ran. But before he could get more than eight feet away, defendant grabbed a gun and shot him.

In our view, the evidence, especially how quickly the shooting followed the assault, was strong evidence that defendant acted under the influence of anger and rage; moreover, the evidence that defendant was attacked with a broken bottle, cut, and then punched and kicked by two people while his brother was also being assaulted by two people constituted strong support for a finding that a reasonable person under the same circumstances would have been provoked to act rashly rather than from judgment.

Indeed, during final argument, the prosecutor conceded that defendant was mad and angry when he shot Vroom. The prosecutor accepted that under the circumstances, a reasonable person might also get mad and angry. However, the ambiguous heat-of-passion instruction enabled the prosecutor to further, and improperly, argue that although a reasonable person might get angry and mad, he or she would not have then shot Vroom in the back in front of a police officer.

Given the strong evidence of provocation and the prosecutors argument, we conclude that the instructional error was prejudicial and undermines our confidence in the jurys finding of malice. In our view, if the jurys determination of provocation had been properly limited to whether it would have caused an average person to act rashly, it is reasonably probable that at least one juror would have had a reasonable doubt concerning whether defendant acted with malice. (See People v. Watson, supra, 46 Cal.2d at p. 836.)

We acknowledge that in finding malice and convicting defendant of second degree murder, the jury implicitly rejected his primary defense of perfect self-defense and defense of another and his alternative claim of imperfect self-defense and defense of another. However, the rejection of those theories does not naturally encompass a finding that the provocation was insufficient as a matter of law. On the contrary, the jury could have rejected those theories based on a finding that defendant killed Vroom not because he believed he still needed to defend himself and Ruben but, as the prosecutor repeatedly argued, because he wasmad and angry after being attacked with a bottle, cut on the arm, punched, and kicked. Accordingly, the jurys verdict does not necessarily establish that the instructional error was harmless.

In sum, therefore, we conclude that the instructional error compels reversal of defendants murder conviction.[7]

VI. Remaining Contentions

For purposes of guidance in the event of a retrial, we address some of defendants other claims because they involve issues that could arise again. (E.g., People v. Harris (1994) 9 Cal.4th 407, 431, fn. 14; People v. Esquivel (1994) 28 Cal.App.4th 1386, 1400.)

A. Instructional Issues

1. Inadequate Murder Instruction

Defendant claims the courts instruction on the elements of murder was inadequate because it did not include the absence of provocation as one of the essential elements.

A trial court must instruct the jury, even without a request, on all general principles of law that are  closely and openly connected to the facts and that are necessary for the jurys understanding of the case.  [Citation.] (People v. Hovarter, supra, 44 Cal.4th 983, 1021, quoting Roldan (2005) 35 Cal.4th 646, 715, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421 and fn. 22; People v. Koontz (2002) 27 Cal.4th 1041, 1085.) At a minimum, this requires instruction on the elements of the offense charged. [Citation.] (People v. Wilkins (1993) 14 Cal.App.4th 761, 777.)

In this case, defendant was charged with murder. Contrary to defendants claim, the absence of provocation is not a separate and independent element of that crime. Section 187, subdivision (a) defines murder as the unlawful killing of a human being, or a fetus, with malice aforethought. Thus, the elements of murder are simply (1) the killing of another person or a fetus; (2) the unlawfulness of the killingi.e., the lack of legal excuse or justification; and (3) malice aforethought. (See CALCRIM Nos. 520; CALJIC No. 810.) Accordingly, the court instructed the jury that [t]he defendant is charged in count 1 with murder. To prove the defendant is guilty of this crime, the people must prove that one, the defendant committed an act that cause the death of another person. [] (2) When the acted, he had a state of mind called malice aforethought and; [] (3) he killed without lawful excuse or justification.

The courts instruction was legally correct.

Moreover, we note that immediately after instructing the jury on murder, the court instructed that [a] killing that is otherwise murder is reduced to voluntary manslaughter if the defendant killed someone in a sudden quarrel or in the heat of passion. [] The defendant killed someone because of a sudden quarrel or in the heat of passion if: []  (1) The defendant was provoked; [] (2) As a result of the provocation, the defendant acted rashly and under the influence of intense emotion that obscured his reason or judgment; and [] (3) the provocation would have caused a person of average disposition to act rashly and without due deliberation, that is, from passion rather than from judgment. []  . . .  [] The People have the burden of proving beyond a reasonable doubt the defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the People have not met this burden, you must find the defendant not guilty of murder. (Italics added; see CALCRIM No. 570.) And later, as part of its last instruction, the court instructed that [t]he People have the burden of proving that the defendant committed murder rather than a lesser offense. If the People have not met this burden, you must find the defendant not guilty of murder. (See CALCRIM No. 640.)

Generally, in determining the correctness of instructions, we look at the entire charge and not individual instructions or parts of an instruction. (People v. Smithey (1999) 20 Cal.4th 936, 987.)

Taken together, the courts instructions refute defendants claim and correctly informed jurors that the prosecution had the burden to prove malice and the absence of provocation and heat of passion beyond a reasonable doubt. Moreover, we note that the jurors were expressly instructed to consider the instructions together. (See CALCRIM No. 200; see also CALJIC No. 1.01)

2. Inapplicable Instructions Concerning Mutual Combat

Defendant claims the court erred in giving CALCRIM Nos. 3471 and 3472 because there was no evidence to support either instruction.

After instructing the jury that the people had the burden to prove beyond a reasonable doubt that defendant was not acting with an honest but unreasonable belief in the need to defend himself or another person, the court gave these two instructions. CALCRIM No. 3471 explains the doctrine of self-defense in the context of mutual combat. As given, the instruction provided, A person who engages in mutual combat or who is the first one to use physical force has a right to self-defense only if: [] (1) He actually and in good faith tries to stop fighting; and [] (2) He indicates, by word or by conduct, to his opponent in a way that a reasonable person would understand that he wants to stop fighting and that he has stopped fighting. [] If a person meets these requirements, then he has a right to self-defense if the opponent continues to fight. [] If you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fighting.

CALCRIM No. 3472, as given, further provided, however, that [a] person does not have the right to self-defense if he or she provokes a fight or quarrel with the intent to create an excuse to use force.

a. CALCRIM No. 3471

In People v. Ross (2007) 155 Cal.App.4th 1033, this court explained the term mutual combat as used in the jury instruction. Old but intact caselaw confirms that as used in this states law of self-defense, mutual combat means not merely a reciprocal exchange of blows but one pursuant to mutual intention, consent, or agreement preceding the initiation of hostilities. The lead case appears to be People v. Fowler (1918) 178 Cal. 657, 671 . . . , where the court wrote, It has long been established that one who voluntarily engages in mutual combat with another must have endeavored to withdraw therefrom before he can be justified in killing his adversary to save his own life . . . .  Both before and since [the 1872 enactment of Penal Code section 197] the phrase mutual combat has been in general use to designate the branch of the law of self-defense relating to homicides committed in the course of a duel or other fight begun or continued by mutual consent or agreement, express or implied. [Citations.] [Italics added in Ross.] In other words, it is not merely the combat, but the preexisting intention to engage in it, that must be mutual. (Id. at p. 1045, italics in Ross.) Thus, we held that  mutual combat consists of fighting by mutual intention or consent, as most clearly reflected in an express or implied agreement to fight. (Id. at pp. 1046-1047, italics in Ross.) [T]here must be evidence from which the jury could reasonably find that both combatants actually consented or intended to fight before the claimed occasion for self-defense arose. (Id. at p. 1047, italics in Ross.)

Defendant claims that there was no evidence of mutual combat, that is, a  fight begun or continued with mutual consent or agreement, express or implied.  He notes that the confrontation in the parking garage ended, and there is no evidence suggesting that the two groups implicitly agreed to continue the dispute at some later time and place. Although the two groups later ran into each other, that, according to defendant, was an unfortunate and unplanned coincidence. He asserts that except for whether the Oldsmobile was in front of the Expedition on the on-ramp, it is undisputed that Vroom and his group got out of the Expedition, ran back, and brutally attacked defendant and Ruben, who were stuck in their seat belts and unable to respond. He argues that there was no evidence that defendant and Ruben had previously agreed to fight Vroom and his friends and certainly no evidence that there was a reciprocal or mutual exchange of blows. Under the circumstances, defendant argues that no reasonable juror could have found beyond a reasonable doubt that defendant was ever engaged in mutual combat. We disagree with defendants narrow view of the evidence.

Given Mitchells and Garcias testimony, some of which was corroborated by Officer ONeill, the jury could have found that although defendant and his group ostensibly backed down and abandoned their challenge to Vroom in the parking garage, they, and defendant in particular, were resentful and remained angry at Vroom and the others. The jury also could have found that when the two groups encountered each others vehicles at a stop light a short time later, defendants vehicles followed the Expedition to the on-ramp to trap and the confront its occupants again. To this end, the Oldsmobile abruptly cut in front of the Expedition and then stopped; defendant and Ruben stopped, blocking it from behind; and some of the Oldsmobiles occupants got out and threw a crowbar at the Expedition. Declining to be intimidated, the occupants of the Expedition accepted the challenge, but instead of confronting those in the Oldsmobile, who outnumbered them, they chose to even up the odds a little bit and ran back to the Cadillac, where there were only two people. Such a view of the evidence supports the courts instruction on mutual combat because the actions of defendants group and the response by Vrooms group reasonably supports an inference that defendants group challenged Vrooms group, and Vrooms group accepted the challenge.

Defendant suggests that Officer ONeills testimony that he did not see a third car stopped on the on-ramp in front of the Expedition was more credible than Mitchells self-serving testimony that the Oldsmobile stopped short in front of the Expedition, trapping it. However, in deciding whether there is substantial evidence to warrant an instruction, the court does not determine the credibility of the evidence. (People v. Salas (2006) 37 Cal.4th 967, 982.) Moreover, we note that Officer ONeill testified that he saw three sets of headlights moving in the opposite direction toward the on-ramp and observed the lead vehicle cut in front of the middle vehicle.

Finally, the fact that defendant and Ruben were unable to reciprocate and land any blows against Vroom, Garcia, Sanchez, and Mitchell does not, as defendant suggests, preclude a finding of mutual combat. In Ross, we observed that mutual combat meant more than a reciprocal exchange of blows. (People v. Ross, supra, 155 Cal.App.4th at p. 1045.) However, we do not believe that reciprocal means that the fight must be even or that each party must be able to land blows against the other. In our view, mutual combat also encompasses a situation where two people agree to fight; and when they start, one of them so completely dominates that the other is overwhelmed and unable to resist or mount an offense.

Defendant argues that the final part of the instructionIf you decide that the defendant started the fight using non-deadly force and the opponent responded with such sudden and deadly force that the defendant could not withdraw from the fight, then the defendant had the right to defend himself with deadly force and was not required to try to stop fightingwas inapplicable to the facts and would have confused jurors. However, jurors conceivably could have found that defendant and his group initiated the confrontation with non-deadly force, by trapping and then throwing a crowbar at the Expedition; in response Garcia got out and attacked defendant with a bottle that was broken during the attack; and because defendant remained stuck in his seatbelt, he could not withdraw. Thus, this instructional language not only was potentially applicable but also could have redounded to defendants benefit and supported his defense.[8] Indeed, defense counsel made this very point during his closing argument.

b. CALCRIM No. 3472

Defendant claims that CALCRIM No. 3472 should not have been given because there was no evidence that he quarreled or fought with anyone and thus contrived the opportunity to use deadly force. As explained, however, given evidence of lingering resentment and animosity and an effort to trap and confront the Expedition on the on-ramp, the jury reasonably could have found that defendants group, including defendant himself, was the initial aggressor both in the parking garage and later on the on-ramp.

3. Failure to Instruct on Involuntary Manslaughter

Defendant contends the court erred in failing to instruct on the lesser included offense of involuntary manslaughter.

In accordance with its duty to instruct jurors on all general principles of law that are  closely and openly connected to the facts and that are necessary for the jurys understanding of the case[,]  [Citation] (People v. Hovarter, supra, 44 Cal.4th 983, 1021), a court must instruct on lesser included offenses, even without a request, where the evidence raises a question as to whether all of the elements of the charged offense were presenti.e., where there is substantial evidence to support a conviction for the lesser included offensebut not when there is no evidence that the offense was less than that charged. (People v. Breverman, supra, 19 Cal.4th 142, 155; People v. Birks (1998) 19 Cal.4th 108, 118.)

Murder includes the lesser offense of involuntary manslaughter. (People v. Abilez (2007) 41 Cal.4th 472, 515.) A defendant commits involuntary manslaughter when the killing occurs (1) in the commission of an unlawful act, not amounting to felony, i.e., a misdemeanor; or (2) in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. ( 192, subd. (b); People v. Cook (2006) 39 Cal.4th 566, 596; People v. Abilez, supra, 41 Cal.4th at pp. 515-516.) The former type of involuntary manslaughter requires that the defendant act with general criminal intent and that the predicate misdemeanor be dangerous to human life under the circumstances. (People v. Garcia (2008) 162 Cal.App.4th 18, 27.) The latter type requires proof of criminal negligence, i.e., aggravated, culpable, gross, or reckless conduct that creates a high risk of death or great bodily injury and evinces a disregard for human life or for the consequences of the conduct. (Ibid.) Additionally, an unintentional homicide committed in the course of a noninherently dangerous felony may properly support a conviction of involuntary manslaughter, if the felony is committed without due caution and circumspection. (People v. Burroughs (1984) 35 Cal.3d 824, 835-836, disapproved on other grounds in People v. Blakeley, supra, 23 Cal.4th 82, 89; People v. Dixon (1995) 32 Cal.App.4th 1547, 1556.) However, an unintentional killing, without malice, committed during the commission of an inherently dangerous felony does not constitute involuntary manslaughter. (People v. Garcia, supra, 162 Cal.App.4th at p. 31.)

Defendant claims there was evidence to support convictions under either theory of involuntary manslaughter. Concerning misdemeanor manslaughter, defendant argues the evidence would have supported a finding that he killed while brandishing a weapon, a misdemeanor in violation of section 417, subdivision (a)(2)(B); e.g., Lee, supra, 20 Cal.4th 47, 60-61 [evidence of brandishing can support instruction on misdemeanor manslaughter].[9] According to defendant, the jury could have found that he never aimed at Vroom but fired his gun rapidly and randomly in an effort to stop Vroom from beating Ruben. We disagree that the evidence would have supported such a finding.

Defendant did not simply brandish his guni.e., exhibit or display his gun in a rude, angry, or threatening manner. ( 417, subd. (a)(2)(B).) In a single, quick, and continuous action, without hesitation, he retrieved, pointed, and fired his gun several times. He also did not use his gun in some manner during a fight or quarrel in order to stop it. (Ibid.) There was no fight to stop because three of the assailants had already fled and Vroom was fleeing. According to Officer ONeill, Vroom had turned his back toward defendant and was running toward the Expedition when defendant shot him. (Cf. with Lee, supra, 20 Cal.4th at p. 61 [defendant held gun between him and wife as they quarreled and pushed each other].) Furthermore, Officer ONeills uncontroverted testimony rebuts defendants claim that there is no evidence he aimed at Vroom. He testified that when Vroom was a few feet away, defendant purposefully extended his arm in Vrooms direction and pointed at the person who was running away from him . . . . The fact that he only hit Vroom twice does no