P. v. Islas

Filed 7/22/10 P. v. Islas CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Robert M. Martinez, Judge. Affirmed.

Edward J. Haggerty, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Susan D. Martynec and Russell A. Lehman, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendant and appellant, Nestor Manuel Islas, appeals the judgment entered following his conviction, by jury trial, for first degree murder and second degree murder, with gang and firearm use enhancements (Pen. Code,  187, 186.22, subd. (b), 12022.53).[1] He was sentenced to state prison for a term of 90 years to life.

The judgment is affirmed.

BACKGROUND

Viewed in accordance with the usual rule of appellate review (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence established the following.

1. Prosecution evidence.

a. The shootings.

Jose Alberto was a student at North Park High School in Baldwin Park. He lived with his parents and his 14-year-old brother Pedro.

Jose Alberto testified he belonged to a tagging crew, a group of friends who painted graffiti together. He claimed his tagging crew was not associated with Northside Bolen, a street gang in Baldwin Park, but he testified he regularly socialized with close friends who were members of Northside Bolen.

On the night of November 13, 2007,[2] Jose Alberto was in Central Park with some Northside Bolen friends when a shooting took place. He testified he had nothing to do with the shooting; he just heard gunshots and started running.

At school the following day, he and Marcos Salcido mad-dogged each other as they passed in the hall. They made a date to fight after school. Salcido belonged to the KHA gang, which stood for Kings Have Arrived. After school, Jose Alberto and Salcido met at a vacant lot so they could fight. They each brought a couple of friends with them. However, a campus police officer intervened and the fight was called off.

About 8:30 p.m. that night, Jose Alberto was at home. His parents were in the living room watching television. His younger brother, Pedro, had been outside saying goodbye to his girlfriend, but he later came back into the house. Jose Alberto heard gunshots. At first he didnt do anything, but then he heard his mother scream so he ran outside. Pedro was standing by the front gate, bleeding from two gunshot wounds to the head.

Jose Albertos mother, Maria, testified she and her husband went outside when they heard the gunshots. Maria saw Pedro standing in the front yard. She also saw three young men near Pedro. These men were passing by, walking by Pedro. Maria testified her husband, Jose Luis, tried to apprehend these men: He saw them so close by that his first impulse was to run towards them, to grab them. Maria ran to Pedro and hugged him.

At the time of the shooting, Joaquin Zepeda was outside, leaning on his car which was parked just up the street from Jose Albertos house. When he heard the gunshots, Zepeda felt a hot sensation on his neck like the burn from a passing bullet. He saw an older man running up the street after someone and yelling Agarre, which is Spanish for grab him. Zepeda testified he heard, but did not see, at least two other people running up the street at this time. Zepeda saw the older man fall to the ground.

Baldwin Park Police Officer Luis Valdivia was on patrol at the time and responded to a radio call about shots fired. He was flagged down by a man and told someone had been shot. Valdivia found Jose Luis lying on the ground, bleeding from the chest. The wound was fatal.

Other officers found Pedro lying on the ground in front of his house. He had been shot six times and he was pronounced dead by responding paramedics. A single .40-caliber expended shell casing and seven 9-millimeter expended shell casings were found near Pedros body. Three more 9-millimeter expended shell casings were found up the street, closer to Jose Luiss body.

The autopsy showed Jose Luis had been shot once in the chest. A deformed, medium-caliber bullet was still in his body. The bullets deformity was consistent with it having impacted a hard surface before striking Jose Luiss body.

The police never found any of the guns used in the shootings.

b. Summary of Islass police statement.

Defendant Islas was interviewed by Sergeant Michael Rodriguez and Detective Francisco Real on November 20. The interview was tape recorded and portions of the tape were played for the jury.

At first, Islas claimed that on the day of the shootings he had been at his girlfriends house from 5:00 p.m. on. The officers pointed out his girlfriend could go to jail for providing a false alibi. Islas then said he hadnt been at his girlfriends house the entire time, but he still denied any involvement in the shootings. Eventually, Islas told the officers that members of the Northside Bolen gang, including Jose Alberto, had shot at him in Central Park on the night of November 13. The next night, Islas, Salcido and Juan Rodriguez went out to get revenge for the park shooting and for the incident at school between Salcido and Jose Alberto.

They were driven around by O.M. Salcido and Rodriguez had brought along guns. Salcido had a 9-millimeter Baretta and Rodriguez had a .40-caliber Glock. Islas claimed he was unarmed. They drove to Northside Bolen territory looking for someone to shoot. It was Islass job to identify Northside gang members. This was because he knew where most of the Northsiders lived as he had had problems with them in the past. It was also because Islas had been in the KHA gang the longest. They drove around for a couple of hours, but didnt see any Northsiders.

Then, as they drove past Jose Albertos house, they saw someone out in front talking to a girl. They thought it was Jose Alberto. O.M. went past the house, made a
U-turn, and stopped. Islas, Salcido and Rodriguez got out of the car. Asked why he got out of the car if he was unarmed, Islas said, I just wanted to see what was going on. By this time Jose Alberto was gone. Salcido and Rodriguez positioned themselves in a neighboring yard and one of them whistled. The person Islas thought was Jose Alberto came out of the house and walked up to Salcido and Rodriguez. Islas heard them talking and then he heard gunshots. He jumped back into the car. He saw a man he later learned was Jose Albertos father chasing after Salcido and Rodriguez, one of whom turned around and shot the father. Salcido ran off and Rodriguez jumped into the car.

c. Gang evidence.

Detective Real testified as a gang expert. KHA was a gang recognized by the Mexican Mafia prison gang, which means KHA paid the Mexican Mafia taxes. They did this either by sharing profits from drug trafficking or other criminal activity, or by doing work for them, i.e., committing crimes. The three major gangs in Baldwin Park are Northside Bolen, Eastside Bolen, and KHA. Eastside Bolen and KHA get along with each other, but neither gang gets along with Northside Bolen. To put in work is to engage in criminal activity for the gangs benefit. Real testified Islas and Salcido were KHA members, and that Rodriguez was a member of Eastside Bolen. Given a hypothetical based on the trial evidence, Real opined the shootings had been committed for the benefit of a criminal street gang.

2. Defense evidence.

a. Rodriguezs testimony.

Codefendant Juan Rodriguez testified he was a student at North Park High School at the time of the shootings. He denied being a gang member, although he had friends in the Eastside Bolen gang. Rodriguez was not friends with Salcido, but knew him from school and knew he belonged to KHA. Similarly, he wasnt friends with Islas but knew who he was. Rodriguez was friends with O.M., who was not involved in any gang.

On the evening of November 14, Rodriguez was in O.M.s car because they were planning to smoke marijuana. However, Islas and Salcido were also in the car and they wanted O.M. to take them to Northside Bolen territory so they could put in work. Islas showed Rodriguez he had some marijuana and a 9-millimeter handgun.

Salcido had a .40-caliber handgun. Rodriguez himself was carrying an unloaded .22-caliber handgun. He had been carrying this gun around since having been shot two months earlier. He just felt he needed something to scare people off and, for that purpose, the gun did not have to be loaded.

Rodriguez told O.M. to take him home, but O.M. refused because he wanted to smoke Islass marijuana. As they drove around, Islas directed O.M. where to go because Islas wanted to look for Northsiders. When Rodriguez asked why, Islas said he had been shot at by a couple of Northsiders the night before. Islas also said something had happened at school that day between Salcido and Jose Alberto. Salcido was supposed to have fought with Jose Alberto, but he ranked it, which meant he got scared and backed off. Rodriguez said a gang member usually suffered retribution if he made his gang look bad. He testified it was not until he asked Islas why he wanted to look for Northsiders that he understood this was between K.H.A. and Northside. This is because Northside made K.H.A. look bad, and K.H.A. felt that they . . . had to do something about it.

Rodriguez again told O.M. to take him home, and then Salcido said he had to go home too. O.M. wanted to drop Islas off first because they were already close to where he lived. Then, at a stoplight, Islas told O.M., You know, lets make a left right here. Blast [i.e., Jose Alberto] lives here. Rodriguez and Salcido again said they needed to go home, but Islas insisted that O.M. drive past Jose Albertos house.

O.M. made the left turn and drove past the house. Islas had his gun out. There was a bald young man and a girl coming out of the house. Rodriguez testified Islas said,  Lets do a drive by. He was rolling down his window. Lets get him.  Rodriguez and Salcido urged him to forget about it, but Islas directed O.M. to make a U-turn. When they passed the house again there was no one outside. O.M. made another U-turn and parked.

Islas got out first. When he saw that Rodriguez and Salcido were not moving, he told them they had to get out. Islas said to Salcido, If not, you know whats going to happen. The crew already told you theyre mad at you because you ranked and made us look bad at K.H.A. And if you dont get [out], I am going to tell them. Rodriguez felt threatened because Islas had a gun. Salcido and Rodriguez got out of the car.

Islas wanted Rodriguez to call Jose Alberto out of the house, but Rodriguez refused and walked back toward the car. Then he heard a whistle. He turned around and saw a young man walking out of the house. Islas said in a friendly manner, Hey, homie. Come here, and the man walked toward him. Rodriguez realized the man wasnt Jose Alberto, so he started walking back toward the house to stop Islas from asking the man to call Jose Alberto out of the house. But before he could get there, Islas started shooting. Rodriguez testified he did not see Salcido fire any shots. However, he had told Detective Rodriguez that Salcido fired one shot and then ran away.

Rodriguez got scared and started running back toward the car. He heard a woman scream. An older man yelled something like leave my son alone and started running after Islas. Rodriguez kept running toward the car. Islas was running behind him and the older man was catching up. Rodriguez saw Islas turn with the gun in his hand and then Rodriguez heard three or four more gunshots. He jumped into the car and then so did Islas. Salcido had run in another direction.

O.M. sped off. Rodriguez asked Islas, Hey, did you shoot the dad?, and Islas replied, No, fool, I didnt shoot the dad. I shot the ground because he was getting close to me. Islas asked Rodriguez if he had used his gun and, because Rodriguez was scared of Islas, he said yes. Later that night, Salcido told Rodriguez he had shot one of the victims.

b. Salcidos testimony.

Codefendant Marcos Salcido began his testimony by saying he went along with the others that night knowing there was going to be a shooting because thats what he, Islas and Rodriguez had planned to do. However, Salcido also said he had a secret plan to prevent the assault.

Salcido testified he and Islas were members of KHA, and that Jose Alberto belonged to Northside Bolen. KHA and Northside Bolen were rivals. Salcido and Jose Alberto argued at school on November 14 and made an arrangement to fight when school was over. That afternoon, as they were starting to face off, a black Nissan pulled up in front of Jose Alberto. Inside the car was an older guy from Northside. They had a brief conversation, during which Jose Alberto was pointing at Salcido. Then the Nissan pulled around in front of Salcido. The older guy from Northside threw gang signs at him and then lifted up his shirt to display a gun. All this made Salcido feel extremely disrespected by Jose Alberto and Northside Bolen, particularly because it happened in front of his girlfriend.

Later in the day, Salcido was driving around with O.M. and Rodriguez. At one point, Islas called O.M. and they drove to Central Park to pick him up. Islas said he wanted to retaliate against Northside Bolen for shooting at him the night before. Islas already knew what had happened between Salcido and Jose Alberto after school. Islas had O.M. drive to an apartment building. Islas directed Salcido to come with him into one of the units, where Islass friend gave them each a gun. They went back to O.M.s car.

Salcido understood he had been given the gun to put in work, i.e., go looking for Northsiders in order to retaliate. They drove around Northside Bolen territory for a while. Islas wanted to keep looking for Northsiders, but everyone else wanted to go home. Islas told O.M. to take him home first. Following Islass directions, O.M. ended up driving past Jose Albertos house again. When they first passed it, about 30 minutes earlier, Islas had pointed it out to the others and said it was Jose Albertos house.

As they drove past the house this time, there was a bald young man out front with a girl. Islas said he wanted to do a drive-by and he told O.M. to make a U-turn.

O.M. drove past the house and parked. Islas and Rodriguez got out, but Salcido did not. Islas told Salcido if he didnt get out, You know whats going to happen.

Salcido got out and walked with Rodriguez and Islas toward the house. Salcido kept his gun in his pocket. Islas whistled to get Jose Albertos attention and someone came out of the house. Salcido did not recognize him; it didnt appear to be Jose Alberto. Islas said, Where are you from? and started pulling something out of his waistband. When Salcido saw this, he fired a single shot toward the ground. He believed he had to fire at least one shot as that was the only way to make it appear he was participating, something which was expected of him because he had made KHA look bad that afternoon at school. If he didnt do what he was told, KHA would retaliate against him and his family. After firing once at the ground, Salcido fled. He heard other gunshots as he was running. Salcido also testified he believed that, by being the first one to shoot, he might be able to scare the others into breaking off the attack.

Salcido denied telling Rodriguez subsequently that he thought he had shot one of the victims.

c. Sergeant Rodriguezs testimony.

Sergeant Rodriguez testified the hard object apparently struck by the bullet recovered from Jose Luiss body could have been the street.

CONTENTIONS

1. The trial court erred by failing to instruct the jury that Rodriguez and Salcido were accomplices as a matter of law.

2. The trial court erred by denying Islass motion to suppress his police statement.

3. The trial court erred by refusing to instruct the jury on voluntary manslaughter.

4. The trial court erred by not instructing the jury sua sponte on involuntary manslaughter.

5. The trial court erred by not instructing the jury sua sponte on the defense of accident or misfortune.

6. The trial court erred by instructing the jury with CALCRIM Nos. 220 and 222.

7. The trial court erred by instructing the jury with CALCRIM No. 226.

8. The natural and probable consequences doctrine of accomplice liability violates due process.

9. There was cumulative error.

10. Imposition of a firearm use enhancement under section 12022.53 was an equal protection violation.

DISCUSSION

1. Accomplice testimony was properly corroborated.

Islas contends the trial court erred by failing to instruct the jury that, because Rodriguez and Salcido were accomplices as a matter of law, their testimony had to be corroborated before the jury could rely on it. Even if the trial court should have so instructed, their testimony was amply corroborated and Islas could not have been prejudiced.

a. Legal principles.

Section 1111 defines an accomplice as one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. An accomplice is one who acts with knowledge of the criminal purpose of the perpetrator and with an intent or purpose either of committing, or of encouraging or facilitating commission of, the offense. (People v. Stankewitz (1990) 51 Cal.3d 72, 91.) Whether a person is an accomplice is a question of fact for the jury unless there is no dispute as to either the facts or inferences to be drawn from the facts. (People v. Fauber (1992) 2 Cal.4th 792, 834; see People v. Williams (1997) 16 Cal.4th 635, 679 [trial court may only instruct that witness is accomplice as matter of law if facts establishing witness culpability are clear and undisputed].) The defendant has the burden of proving, by a preponderance of the evidence, that a witness is an accomplice. (Ibid.; People v. Sully (1991) 53 Cal.3d 1195, 1228.)

A conviction cannot be had upon the testimony of an accomplice unless it be corroborated by such other evidence as shall tend to connect the defendant with the commission of the offense . . . . (Pen. Code,  1111.) To corroborate the testimony of an accomplice, the prosecution must present independent evidence, that is, evidence that tends to connect the defendant with the crime charged without aid or assistance from the accomplices testimony. [Citation.] Corroborating evidence is sufficient if it tends to implicate the defendant and thus relates to some act or fact that is an element of the crime. [Citations.]  [T]he corroborative evidence may be slight and entitled to little consideration when standing alone. [Citation.] [Citation.] (People v. Avila(2006) 38 Cal.4th 491, 562-563.)

b. Discussion.

Using CALCRIM No. 334 (Accomplice Testimony Must Be Corroborated: Dispute Whether Witness Is Accomplice), the trial court told the jury it had to determine if Rodriguez and Salcido were accomplices whose testimony required corroboration before the jury could rely on it. Islas argues giving this instruction was erroneous because Rodriguez and Salcido were obviously accomplices: [T]he evidence of Salcidos and Rodriguezs direct participation in the shootings was clear and definitive. Through their own testimony and statements to the police, Rodriguez and Salcido admitted planning and undertaking the shootings . . . . Salcido . . . admitted to firing the first shot, though he implausibly asserted that this act somehow was supposed to discourage Islas and Rodriguez from consummating the planned shooting. Similarly, though Rodriguez tried to minimize his role and degree of culpability, [he] admitted to carrying a .22 caliber handgun at the time of the shooting, that he had heard talk of putting in work as he drove around in the car with Islas and Salcido and that he had walked toward the . . . house with his gun drawn.

The record, however, demonstrates the evidence of the codefendants accomplice liability was not without possible dispute. Although Salcido appears to have been involved in formulating the plan to kill Northside members, Rodriguezs story was that he was unwillingly dragged along to the shooting scene when the others refused to take him home. Rodriguez said that at the scene he did not shoot anyone, his gun was unloaded, and rather than walk toward Pedro he walked in the opposite direction in order to separate himself from the attack. As Islas acknowledges, Salcido gave an elaborate story about a secret plan to disrupt the attack.

Despite the obvious credibility problems with these stories, there was probably an arguable dispute as to either the facts or inferences to be drawn from the facts, which meant the trial court properly determined the accomplice question should be determined by the jury. (See People v. Fauber, supra, 2 Cal.4th at p. 834 [Whether a person is an accomplice is a question of fact for the jury unless there is no dispute as to either the facts or the inferences to be drawn therefrom.].)

However, we need not decide this question because, even assuming arguendo Rodriguez and Salcido were accomplices as a matter of law, their testimony was amply corroborated by Islass police statement. A failure to instruct on the necessity of corroborating accomplice testimony is harmless if there is sufficient corroborating evidence in the record. (People v. Arias (1996) 13 Cal.4th 92, 142-143; People v. Sanders (1995) 11 Cal.4th 475, 534-535.) Moreover, [t]he necessary corroborative evidence for accomplice testimony can be a defendants own admissions. (People v. Williams, supra, 16 Cal.4th at p. 680; accord People v. Avila, supra, 38 Cal.4th at pp. 562-563.)

Islas asserts there was nothing in [his] statement to the police that corroborated Rodriguez or Salcido. But Islas not only put himself at the crime scene, he said he had heard the intended victim was involved in shooting at him the previous night in Central Park, and he admitted driving around with a fellow KHA gang member looking for a Northside Bolen gang member to shoot in retaliation.

Islas argues his police statement did not provide sufficient corroborating evidence because, in many particulars, it was at odds with Salcidos and Rodriguezs versions of events.[3] But   [t]he evidence required for corroboration of an accomplice need not corroborate the accomplice as to every fact to which he testifies but is sufficient if it does not require interpretation and direction from the testimony of the accomplice yet tends to connect the defendant with the commission of the offense in such a way as reasonably may satisfy a jury that the accomplice is telling the truth; it must tend to implicate the defendant and therefore must relate to some act or fact which is an element of the crime but it is not necessary that the corroborative evidence be sufficient in itself to establish every element of the offense charged. [Citations.]   (People v. Williams, supra, 16 Cal.4th at p. 680.)

Islass police statement did tend to implicate him in the shootings without having to be interpreted by the accomplice testimony. Initially, Islas tried to convince the police he had nothing whatsoever to do with the shootings. Given his subsequent admissions, this demonstrated a consciousness of guilt which, by itself, corroborated the accomplice testimony. (See People v. Avila, supra, 38 Cal.4th at p. 563 [Defendants initial attempt to conceal from the police his involvement in the activities culminating in the murders implied consciousness of guilt constituting corroborating evidence.].)

Islas eventually told the police he and his friends were driving around looking for Northside Bolen members to shoot, and that his particular job had been to spot and identify potential targets. This admission that he played an active role in the planned attack corroborated the testimony given by Salcido and Rodriguez, despite the fact Islas disputed various details about how the shootings were eventually carried out.

Hence, even if the trial court erred by refusing to instruct that Rodriguez and Salcido were accomplices as a matter of law, any error was harmless because there was sufficient corroborating evidence.[4]

2. Trial court properly admitted Islass police statement.

Islas contends the trial court erred by denying a motion to suppress his police statement on the ground it had been obtained by coercion and promises of leniency. This claim is meritless.

a. Legal principles.

A defendants admission or confession challenged as involuntary may not be introduced into evidence at trial unless the prosecution proves by a preponderance of the evidence that it was voluntary. [Citations.] A confession or admission is involuntary, and thus subject to exclusion at trial, only if it is the product of coercive police activity. [Citations.] (People v. Williams, supra, 16 Cal.4th  at p. 659.)

 On appeal, the determination of a trial court as to the ultimate issue of the voluntariness of a confession is reviewed independently in light of the record in its entirety, including all the surrounding circumstances both the characteristics of the accused and the details of the interrogation [citations] . . . . [] The trial courts determinations concerning whether coercive police activity was present, whether certain conduct constituted a promise and, if so, whether it operated as an inducement, are apparently subject to independent review as well. [Citation.] However, the trial courts findings as to the circumstances surrounding the confession including the characteristics of the accused and the details of the interrogation [citation] are clearly subject to review for substantial evidence. The underlying questions are factual; such questions are examined under the deferential substantial-evidence standard [citation] . . . .  [Citation.] (People v. Memro (1995) 11 Cal.4th 786, 826.)

b. Discussion.

Islas does not complain about the general circumstances of the interrogation. He acknowledges receiving the Miranda[5]advisements, telling the officers he understood his rights, and agreeing to speak to them. The interview was relatively short, lasting about 90 minutes, with breaks for food and drink. In addition, Islas was allowed to talk to his girlfriend on the telephone and he was allowed to see his father. Although Islas was only 16, he did have some experience with the court system.

Islas does claim the interrogating officers coerced admissions from him through psychological manipulation and an improper promise of leniency.

(1) Alleged psychological coercion.

Islas argues the officers used psychological coercion by improperly appealing to his emotions. For instance, he complains Detective Rodriguez said to him: Do you have any redeeming qualities, Nestor, that we may look at you when you go to trial, and people are gonna say this kid sorry [sic] for what he did? Did he get mixed up in something, did he get over his head? Or are you gonna cop that shit attitude that you have now and [youre] gonna look like you dont have any remorse whatsoever?

At the voluntariness hearing, Rodriguez testified he made these remarks in reaction to Islass bad attitude during the early stages of the interview when Islas was [l]ying to us, kind of laughing, not taking it very seriously. Much more heavy-handed questioning than this has passed muster. (See, e.g., In re Joe R. (1980) 27 Cal.3d 496, 515 [regarding interrogation of 17-year-old, trial court had no duty to rule that loud, aggressive accusations of lying amounted to coercive threats].) The trial court here concluded these comments about the benefits to be gained if Islas showed remorse were permissible in the context of Islass initial defiant attitude. We agree.

Islas complains the officers taunted him by saying his girlfriend was not likely to stick by him if he went to prison, made him feel guilty by referring to the pain he was causing his family, and threatened to prosecute and incarcerate [his] girlfriend if he did not cooperate. But appeals to a suspects concern for the feelings of family members are generally not considered so coercive as to overcome free will. (See, e.g., Peoplev.Kelly (1990)51 Cal.3d 931, 953 [appeal to suspects feelings for his mother held not so coercive as to overcome free will where suspect did not appear to be particularly moved by appeals to family]; People v. Chutan (1999)72 Cal.App.4th 1276, 1282 [officers statement to suspected child molester that  what happens here affects your whole family was not coercive because it was clearly true].) And as the trial court properly pointed out, telling Islas his girlfriend possibly faced criminal liability if she furnished him with a false alibi was accurate.

(2) Alleged promises of leniency.

Islas argues the officers impliedly promised [him] a benefit if he spoke truthfully. By referencing Islass age and the fact that he could be tried as either an adult or a juvenile, the interviewing officers strongly suggested that a confession of participation would likely result in a less serious prosecution as a juvenile.

But the record does not sustain this claim the references to Islass age implied the officers had the power to determine he would be treated as a juvenile rather than as an adult. Islas cites Rodriguezs statement, Everybody rolls [the] dice and takes my [sic] chances. Youre 16. If you were 26 or 27, I [would] probably tell you to roll the dice and take your chances. But youre not. Youre 16. Islas argues this statement implied that if he confessed the officers would insure he was treated as a juvenile because, shortly thereafter, Rodriguez stated the district attorney would have the option to try him as a juvenile or [as] an adult.

However, the full context of these statements shows Islas is conflating two, widely separated comments. The full context of Rodriguezs initial comment was: But see, the problem is . . . I know that . . . you were over there near the shooting. Right? You were, Nestor. And its . . . hard for you right now. For you to be a man and do the right thing. Everybody rolls [the] dice and takes my chances. Youre 16. If you were 26 or 27, Id probably tell you to roll the dice and take your chances. But youre not. Youre 16.

There followed a variety of other topics before, nine transcript pages later, the following comments were made:

RODRIGUEZ: . . . Do you wanna end this nonsense before your dad gets here? You dont? You know its gonna suck Nestor, cause youre gonna go to Juvenile Hall. And maybe youre gonna sit there until ___________.

REAL: Hes only 16. Theyll move him. He may end up going up as an adult.

RODRIGUEZ: Yeah. But right now hell go to that D.A. will have the option to try him as a juvenile or an adult. Well leave that to them. (Italics added.)

The trial court ruled there had been no express or implied promise of leniency, concluding that when the question of whether Islas would be tried as an adult explicitly arose, one of the officers correctly explained that was a decision for the district attorney. We agree with this analysis.[6]

(3) Lack of causation.

In addition, there is in the record simply no evidence that anything the officers said had a coercive effect. Because Islas did not testify at either the voluntariness hearing or at trial, there is no evidence from him tending to show he made admissions in response to anything improper the officers did. And Islas does not even try to argue on appeal that causation is manifest from the interview itself.

A threat renders a confession involuntary only if the threat actually induces [the person being interrogated] to make the statement. (People v. Lucas (1995) 12 Cal.4th 415, 442; see also Peoplev.Thompson (1990) 50 Cal.3d 134, 166 [in cases of claimed psychological coercion, question is whether influences brought to bear overcame defendants will to resist and resulted in confession not freely self-determined].) Similarly, an improper promise of leniency, express or implied, does not render a statement involuntary unless, given all the circumstances, the promise was a motivating cause of the statement. (Peoplev.Vasila (1995) 38 Cal.App.4th 865, 874; Peoplev. Cahill (1994) 22 Cal.App.4th 296, 316.)

One indication there was no causation here is that Islass eventual statement completely minimized the extent of his participation in the shootings. That is, he ended up telling the officers: he was not armed that night; his group ended up at Jose Albertos house by accident and not because he had directed them there; the only reason he got out of the car was because he wanted to see what was going on; it was Salcido and Rodriguez who shot Pedro; and, it was either Salcido or Rodriguez who shot Jose Luis. (See People v. Williams, supra, 16 Cal.4th at p. 660 [no causation shown where, even when defendant eventually dropped initial claim of total innocence, and admitted his presence at the scene of the murders, he insisted that he had played no role in the killings].)

The prosecution here proved, by a preponderance of the evidence, that Islass police statement was voluntary.

3. Trial court properly refused to instruct on voluntary manslaughter.

Islas contends the trial court erred by refusing to instruct the jury on heat-of-passion voluntary manslaughter as a lesser included offense of murder. This claim is meritless.

a. Legal principles.

A trial court must instruct on a lesser included offense if there is sufficient evidence to support a finding by the jury that the lesser offense was committed rather than the greater. (People v. Breverman (1998) 19 Cal.4th 142, 154-163.) That evidence must be of some weight, however; the existence of any evidence, no matter how weak, will not justify instructions on lesser offenses. (Id. at p. 162.)

An intentional, unlawful homicide is upon a sudden quarrel or heat of passion ( 192(a)), and is thus voluntary manslaughter [citation], if the killers reason was actually obscured as the result of a strong passion aroused by a provocation sufficient to cause an  ordinary [person] of average disposition . . . to act rashly or without due deliberation and reflection, and from this passion rather than from judgment.  [Citations.]  [N]o specific type of provocation [is] required . . . .  [Citations.] Moreover, the passion aroused need not be anger or rage, but can be any   [v]iolent, intense, high-wrought or enthusiastic emotion   [citation] other than revenge [citation]. (Peoplev.Breverman, supra, 19 Cal.4th at p. 163, italics added.) The provocative conduct by the victim may be physical or verbal, but the conduct must be sufficiently provocative that it would cause an ordinary person of average disposition to act rashly or without due deliberation and reflection. (People v. Lee (1999) 20 Cal.4th 47, 59.)

Thus, [t]he 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. As we explained long ago . . . this 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 believes that the facts and circumstances were sufficient to arouse the passions of the ordinary reasonable man. [Citation.] (People v. Steele (2002) 27 Cal.4th 1230, 1252-1253.)

b. Discussion.

The trial court gave the following reasons for refusing to instruct on heat-of-passion voluntary manslaughter: there was no evidence Islass passions had actually been aroused; even assuming they had been, the evidence showed there had been a sufficient cooling off period because 22 hours had gone by since he had been shot at in Central Park; and, the evidence showed Islas had been motivated by revenge rather than any rashness or intense emotion. Islas disputes this reasoning.

As to the shooting of Pedro, Islas argues the evidence showed it arose out of the heat of passion generated by the ongoing disputes between KHA and the Eastside Bolen gangs on the one hand and Northside Bolen on the other. Most immediately, the evidence showed that Islas had been shot at by Northside Bolen gang members the night before and Salcido had an altercation with [Jose Alberto] . . . and his Northside Bolen gang friends earlier on the day of the murders. Islas criticizes the trial court for focusing on the park shooting, arguing the school incident in which Salcido was intimidated and disrespected by Northside Bolen gang members re-ignited the passions generated by the prior nights shooting and served as the more proximate triggering provocation for the deadly shootings . . . . As to the shooting of Jose Luis, Islas argues the jury could have concluded [it] . . . resulted from the heat of passion aroused by the fear and stress of being chased by [Jose Luis], who was yelling and gaining ground on the gunman.

We are not persuaded by either argument.

The evidence showed Islas was motivated by revenge when he set out that night to find Northside Bolen gang members to shoot. [T]he desire for revenge does not qualify as a passion that will reduce a killing to manslaughter. (People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1704; accord People v. Gutierrez (2002) 28 Cal.4th 1083, 1144 [If anything, defendant appears to have acted out of a passion for revenge, which will not serve to reduce murder to manslaughter].)

The school incident between Salcido and Jose Alberto could not have been an adequate provocation for heat-of-passion voluntary manslaughter. (See People v. Manriquez (2005) 37 Cal.4th 547, 586 [calling defendant a mother fucker and daring him to use his weapon, if he had one, plainly were insufficient to cause an average person to become so inflamed as to lose reason and judgment.].) Islas is not entitled to a different standard of reasonableness just because he belonged to a gang. (Cf. People v. Humphrey (1996) 13 Cal.4th 1073, 1087 [indicating disapproval of a reasonable gang member standard]; see Peoplev.Lucas (1997) 55 Cal.App.4th 721, 740 [receiving hard looks or so-called mad-dogging does not constitute reasonable provocation to shoot someone].)

With regard to the shooting of Jose Luis, it is well-established that predictable conduct by a resisting victim does not constitute the kind of provocation sufficient to reduce murder to voluntary manslaughter. (See People v. Rich (1988) 45 Cal.3d 1036, 1112 [resistance by rape victim]; People v. Jackson (1980) 28 Cal.3d 264, 306, disapproved on another ground in People v. Cromer (2001) 24 Cal.4th 889, 901, fn. 3 [defendant may have become enraged and brutally attacked and killed one of his elderly victims because she awakened during the burglary and began to scream]; People v. Kanawyer (2003) 113 Cal.App.4th 1233, 1247 [grandfathers screaming and pointing in an effort to get an unknown intruder (defendant, whom his grandfather did not recognize because of his hat and hood) to leave the house and calling for his wife to summon the police].) We cannot see why this rule would not apply to the shooting of Jose Luis. His attempt to apprehend the gunman who, seconds before, had shot his son, was just as predictable as the actions of a classic resisting victim.

But even if we were to assume, arguendo, the alleged provocations were sufficient, Islass claim would fail because there was no evidence his reason was actually obscured as a result of a strong passion . . . . (People v. Breverman, supra, 19 Cal.4th at p. 163.) Islas did not testify at trial. In his police statement, he did not describe himself as enraged at Jose Alberto because of the park shooting. Nor did he describe himself as enraged by the humiliation suffered by Salcido at school. Rodriguezs testimony did not describe Islas as acting out of fear and stress when he shot Jose Luis.[7] There was no evidence of the requisite subjective component of heat-of-passion voluntary manslaughter.

There was no error in refusing to give this instruction.

4. No prejudice in failing to give misdemeanor-manslaughter instruction.

Islas contends the trial court erred by not instructing the jury, sua sponte, on misdemeanor manslaughter as a lesser included offense of murder in connection with the shooting of Jose Luis. We conclude Islas was not prejudiced by any error.

a. Background.

Islas contends the trial court should have given the jury the following instruction, patterned after CALCRIM No. 580:

When a person commits an unlawful killing but does not intend to kill and does not act with conscious disregard for human life, then the crime is involuntary manslaughter. The difference between other homicide offenses and involuntary manslaughter depends on whether the person was aware of the risk to life that his or her actions created and consciously disregarded that risk. An unlawful killing caused by a willful act done with full knowledge and awareness that the person is endangering the life of another, and done in conscious disregard of that risk, is voluntary manslaughter or murder. An unlawful killing resulting from a willful act committed without intent to kill and without conscious disregard of the risk to human life is involuntary manslaughter.

The defendant committed involuntary manslaughter if:

1. The defendant (committed a crime that posed a high risk of death or great bodily injury because of the way in which it was committed/ [or] committed a lawful act, but acted with criminal negligence);

AND

2. The defendants acts unlawfully caused the death of another person.

The People allege that the defendant committed the following crime[s]: brandishing a firearm in violation of Penal Code section 417, subdivision (a)(2) or grossly negligent discharge of a firearm in violation of Penal Code section 246.3.

Other instructions tell you what the People must prove in order to prove that the defendant committed brandishing a firearm and grossly negligent discharge of a firearm.

In order to prove murder or voluntary manslaughter, the People have the burden of proving beyond a reasonable doubt that the defendant acted with intent to kill or with conscious disregard for human life. If the People have not met either of these burdens, you must find the defendant not guilty of murder and not guilty of voluntary manslaughter.

b. Legal principles.

Manslaughter, both voluntary and involuntary, is a lesser included offense of murder. (People v. Lewis (2001) 25 Cal.4th 610, 645.) Manslaughter is the unlawful killing of a human being without malice. ( 192.) Involuntary manslaughter is a killing committed in the commission of an unlawful act, not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. ( 192, subd. (b).) Generally, involuntary manslaughter is a lesser offense included within the crime of murder. [Citations.] (People v. Prettyman (1996) 14 Cal.4th 248, 274.)

When there is substantial evidence that an element of the charged offense is missing, but that the accused is guilty of a lesser included offense, the court must instruct upon the lesser included offense, and must allow the jury to return the lesser conviction, even if not requested to do so. (People v. Webster (1991) 54 Cal.3d 411, 443.)

c. Discussion.

Islass jury found him guilty of second degree murder in the killing of Jose Luis. The jury had been instructed on express malice second degree murder, which would include a finding of intent to kill, and implied malice second degree murder. In connection with the latter offense, the jury was told it had to find Islas committed an act that caused the death of another person, and that he acted with implied malice, which consisted of four elements: 1. He intentionally committed an act; [] 2. The natural consequences of the act were dangerous to human life; [] 3. At the time he acted, he knew his act was dangerous to human life; [] 4. He deliberately acted with conscious disregard for human life.

Islas argues there was evidence to support a misdemeanor-manslaughter instruction because Rodriguez testified Islas told him he had shot at the ground, not at Jose Luis, and the forensic evidence showed the bullet that struck Jose Luis had apparently ricocheted off some hard object first: Since there was testimony and credible physical evidence to show that the shooting of [Jose Luis] occurred in the course of the brandishing and negligent discharge of a firearm and that the bullet struck [Jose Luis] accidentally, the jury was provided with sufficient evidence from which to render an involuntary manslaughter verdict instead of murder.

The Attorney General argues any involuntary manslaughter instruction was inappropriate in this case because  [i]nvoluntary manslaughter is . . . inherently an unintentional killing  (People v. Hendricks (1988) 44 Cal.3d 635, 643), and [o]ne simply does not unintentionally squeeze off and fire three gunshots at someone pursuing him. But this argument misses Islass point, which is that although he intentionally pulled the trigger, there was evidence showing he had no intention of hitting Jose Luis, but that he merely wanted to frighten him.

However, we conclude that even if a misdemeanor-manslaughter instruction should have been given, the error was harmless because it is not reasonably probable the jury would have reached that verdict. [I]n a noncapital case, error in failing sua sponte to instruct . . . on all lesser included offenses and theories thereof which are supported by the evidence must be reviewed for prejudice exclusively under Watson.[[8]] A conviction of the charged offense may be reversed in consequence of this form of error only if, after an examination of the entire cause, including the evidence (Cal. Const., art. VI,  13), it appears reasonably probable the defendant would have obtained a more favorable outcome had the error not occurred [citation]. (People v. Breverman, supra, 19 Cal.4th at p. 178.)

Contrary to Islass assertion, there was no evidence he acted in a panic when he shot Jose Luis. There was no evidence at all regarding Islass state of mind at that moment. The evidence merely showed that, as he was fleeing, Islas turned around and fired three times in Jose Luiss direction, and that he later told Rodriguez he had fired at the ground because Jose Luis was getting close.

This is how the prosecutor framed the issue in closing argument: [Y]ou have to determine when Mr. Islas turned around and shot at [Jose Luis] as hes gaining on them, did he have express malice or implied malice? Did he have an intent to kill [Jose Luis] in an effort to get away from the crime scene; okay? [] Theres evidence that he may have shot at [Jose Luis] intending to kill him. He didnt shoot once. He shot three times. He may have been a bad shooter, he had a bad aim . . . . He might have intended to kill him. Thats what he was thinking in his head, I am going to kill this guy so I can get away. I am going to shoot at him three times. But Im a bad shot and I missed. It just so happened that one of the bullets ricocheted off something hard and bounced into his chest and killed him, but my intention was to kill him. Or, alternatively, you could say based on the trajectory of the bullet that . . . he intentionally shot into the ground to scare him off but the bullet somehow ricocheted and hit him in the heart. Well, that would be implied malice, intent to do something deadly, intent to do something deadly knowing the consequences and doing it anyway.

We think the jury would have agreed that the evidence showed Islas killed Jose Luis with either express or implied malice. Even if the jury concluded Islas did not intend to kill Jose Luis, there was overwhelming evidence he was guilty of implied malice second degree murder. As Jose Luis was chasing Islas up the street, and apparently getting close to him, Islas turned and deliberately fired three times in Jose Luiss direction and one of the bullets ricocheted off the sidewalk or the street and struck Jose Luis in the chest. We think any reasonable juror would have concluded Islass act of firing his gun in this situation was highly dangerous, that Islas could not have been ignorant of the danger, and that he acted with conscious disregard for human life. Hence, we conclude it is not reasonably probable the jury would have found Islas guilty of misdemeanor manslaughter had it been given the opportunity.

Any error in failing to give a misdemeanor-manslaughter instruction was harmless.

5. No error in failing to give accident instruction.

Islas contends the trial court erred by failing to instruct the jury, sua sponte, on the defense of accident. This claim is meritless.

a. Legal principles.

Section 26 provides: All persons are capable of committing crimes except those belonging to the following classes: [] . . . [] Five Persons who committed the act or made the omission charged through misfortune or by accident, when it appears that there was no evil design, intention, or culpable negligence.

Section 195 provides: Homicide is excusable in the following cases: [] 1. When committed by accident and misfortune, or in doing any other lawful act by lawful means, with usual and ordinary caution, and without any unlawful intent. [] 2. When committed by accident and misfortune, in the heat of passion, upon any sudden and sufficient provocation, or upon a sudden combat, when no undue advantage is taken, nor any dangerous weapon used, and when the killing is not done in a cruel or unusual manner. (Italics added.)

The trial court has a duty to instruct sua sponte on a defense  only if it appears that the defendant is relying on such a defense, or if there is substantial evidence supportive of such a defense and the defense is not inconsistent with the defendants theory of the case. [Citation.] (People v. Breverman, supra, 19 Cal.4th at p. 157.)

b. Discussion.

Islas asserts an accident instruction was warranted based on the same evidence he argues warranted a misdemeanor-manslaughter instruction: he did not intend to shoot Jose Luis; he only meant to scare him. Islas argues the fact he shot toward the ground in an apparent effort to scare off his pursuer demonstrates that, while the firing of the gun may have been an intentional act, the shooting of [Jose Luis] was accidental. In other words, the guns firing was intentional, but its fatal trajectory was an accident.

The Attorney General argues there was no error because an accident instruction is a pinpoint instruction, which need never be given sua sponte. This is incorrect. A trial court must give an accident instruction sua sponte if there is substantial evidence to support it. (People v. Bohana (2000) 84 Cal.App.4th 360, 370; People v. Gonzales (1999) 74 Cal.App.4th 382, 390; People v. Jones (1991) 234 Cal.App.3d 1303, 1314.)

However, the Attorney General correctly points out section 195 is based on the defendant having committed a lawful act by lawful means. ( 195.) The same is true of section 26: Under this section, the burden is on the defendant to establish the absence of evil design, intention and culpable negligence. (People v. Thurmond (1985) 175 Cal.App.3d 865, 871.)  Misfortune when applied to a criminal act is analogous with the word misadventure and bears the connotation of accident while doing a lawful act. (People v. Gorgol (1953) 122 Cal.App.2d 281, 308.) Normally, persons who commit an act through misfortune or by accident with no evil design, intention or culpable negligence are not criminally responsible for the act. [Citation.] (People v. Calban (1976) 65 Cal.App.3d 578, 584.)

Islass theory is that he accidentally shot Jose Luis while in the process of merely trying to scare him away by firing at the ground. Clearly, however, the entire context of this shooting was the exact opposite of any recognized notion of acting with the absence of an evil design or while doing a lawful act. Just seconds before, Islas had participated in the murder of Jose Luiss 14-year-old son, and now Jose Luis was trying to apprehend him. In these circumstances, Islas was not a person covered by sections 26 and 195.

There was no error in failing to instruct on an accident defense.

6. CALCRIM Nos. 220 and 222 did not misstate the definition of reasonable doubt.

Islas contends the trial court erred by giving the jury CALCRIM Nos. 220 and 222, defining the concept of reasonable doubt. This claim is meritless.

a. Instructions did not preclude jury from considering lack of evidence.

The trial court relied on CALCRIM Nos. 220 and 222 to explain the concept of reasonable doubt. One portion of the courts instructions read: In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire