P. v. Moreno

Filed 5/23/08 P. v. Moreno CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Douglas E. Weathers, Judge. Affirmed.

George O. Benton, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Christine Levingston Bergman, Deputy Attorney General, for Plaintiff and Respondent.

Four men were shot on Christmas Eve during a gang fight when they showed up at a birthday party in rival gang territory. Defendant Alejandro Alfaro Moreno and his companion, Alonzo Tenorio, were responsible for the shootings of four rival gangsters.

Defendant appeals from judgment entered following jury convictions for four counts of premeditated attempted murder (Pen. Code, 664/187, subd. (a);^[1]counts 1 through 4) and one count of participation in a criminal street gang ( 186.22, subd. (a); count 5). The jury also found true, as to counts 1 through 4, that the offenses were committed for the benefit of and in connection with a criminal street gang ( 186.22, subd. (b)); and defendant was either a principal or an aider and abettor in the personal and intentional discharge of a firearm during the commission of the offenses ( 12022.53, subds. (d) & (e)(1)). The jury found not true the allegations as to counts 1 through 4 that defendant personally discharged a firearm causing great bodily injury (GBI). The trial court sentenced defendant to four consecutive life terms, plus 100 years to life.

Defendant contends there was insufficient evidence to support his convictions and enhancements and the trial court committed prejudicial error by failing to instruct on assault, self-defense, and the lesser-included offense of attempted voluntary manslaughter.

We conclude there was no reversible error, either individually or cumulatively, and affirm the judgment.

1. Facts

On Christmas Eve in 2005, Gabriel Halcon, Michael Rangel, Jr., Randy Lozano, Francisco Gonzalez, Daniel Rangel, and Jesse Lopez attended a backyard party in the Hillside area of Riverside. These young men were members of or associated with the Casa Blanca criminal street gang.

All six men arrived at the party at about the same time, around 12:30 or 1:00 a.m., with Michael, Jr., arriving a few minutes after his friends. Right after Michael, Jr., arrived, defendant asked him where he was from and Michael, Jr., responded, Im from Casa Blanca Riva, homey. Defendant said he was from a rival gang, the Hillside Dukes. The two immediately engaged in a fistfight. Alonzo Tenorio, also a Hillside gang member, joined in the fight. Within a few seconds defendant and/or Tenorio pulled out a gun and fired at the Casa Blanca gang members. Halcon, Michael, Jr., Lozano, and Gonzalez suffered gunshot wounds.

That evening, shortly after the shootings, Police Officer Simpson and Detective Toussaint stopped a car driven by Sergio Jaimez in the Hillside area, with defendant and Tenorio as passengers. The officers discovered Tenorio had been shot in the buttocks but Tenorio would not say how it happened. Defendant admitted to Simpson that the three men in the car had come from a party where there had been a shooting and that, at the time, defendant had been trying something with a girl inside the house. The officers released the three men after searching the car and not finding any guns or bullets in the car.

After the shootings, the four wounded Casa Blanca gang members and Tenorio went to the hospital for treatment of their gunshot injuries. Daniel and Michael, Jr.s brother, Daniel, and their father, Michael Rangel, Sr., told investigating officer, Detective Stamps, that defendant shot Michael, Jr. Daniel told his father this. Michael, Sr., had also overheard this from others who had been at the party. Michael, Sr., said Daniel told him defendant had been fighting with Michael, Jr., before the shooting and Tenorio was with defendant. Michael, Jr., told Stamps that the person fighting him was the same person who shot him.

Daniel and Michael Sr., told Stamps that defendant arrived at the hospital to pick up someone and, as he got out of the car, said, Yeah, its me. I did it. People standing nearby said, Its him. Its Alex. Daniel and Michael, Jr.s mother, Maria Rangel, testified she also recalled a male passenger getting out of the car at the hospital and saying, Yeah, I did it. I shot him.

Detective Stamps, testifying as a gang expert, stated that Hillside and Casa Blanca were rival criminal street gangs. Stamps further stated that defendant and Tenorio were members of the Hillside gang, and that the shootings benefitted their gang by enhancing defendants and his gangs reputation. Stamps said that when gangs engaged in fist fighting, it often led to shootings.

At the hospital, Daniel told Stamps that, as Michael, Jr., entered the back yard where the party was, a Hispanic man asked him were he was from. Michael, Jr., and the Hispanic man began fighting. Seconds later, Daniel heard gunshots. Daniel said defendant was the person fighting Michael. There was another person with defendant but Daniel did not name him. Daniel said he did not know the name of the shooter.

On January 6, 2006, Detectives Impola and Stamps interviewed Vanessa Hurst who had been at the party at the time of the shooting. She said defendant had been talking shit to her. Apparently annoyed with defendant, she asked a friend to call Michael, Jr., whom she had previously dated, to give him directions to the party. Defendant had tried to date her and had been upset she was dating someone from Casa Blanca.

David Lopez told Impola and Stamps during an investigative interview on January 11, 2006, that, while he was talking to defendant and Daniel at the party, a Casa Blanca gang member tapped defendant on the shoulder and said, Where you from? Defendant said, Im Hillside, and asked, [W]here you from? The other person said, Casa Blanca, and then swung at defendant. David pulled Daniel away to remove him from the fight, and then turned away from the confrontation to tell others to go inside because he knew the Casa Blanca guys were up to no good. David then heard shooting and went inside. He did not see who was shooting or who started the shooting. After the shooting, he saw Tenorio running away.

Police officers found at the crime scene four .380-caliber shell casings in front of the house and one .32-caliber shell casing to the rear of the house. The .380 casings were fired from the same gun. A .32-caliber fragment was recovered from Gonzalezs hand.

About four months after the shooting incident, in April 2006, someone driving by in a Lincoln fired at Gilbert Guerra as he was driving in Riverside. There were three people in the Lincoln. Guerra accelerated. The Lincoln pursued him and someone fired three more shots. Someone called 911. Officer Baird found two .32-caliber shell casings near the curb at one of the shooting scenes.

During Guerras statement a month later to Officer Chincilla concerning the April shootings, Guerra identified Tenorio as the driver of the Lincoln. The same day as Guerras interview, Detective Miera searched Tenorios Lincoln and found a spent .32-caliber shell casing in the right front door storage compartment. The .32-caliber casing matched the .32-caliber casing found at the party shooting scene. A ballistics expert determined that the two casings were fired from the same gun.

2. Sufficiency of the Evidence

Defendant contends there was insufficient evidence to support any of his convictions or enhancements. He claims there was insufficient evidence (1) he aided and abetted in the shootings, (2) he aided and abetted by instigating the fistfight, (3) he was a principal in gang-related shooting causing GBI, and (4) he committed premeditated attempted murder.

In assessing the sufficiency of the evidence, we review the entire record in the light most favorable to the judgment to determine whether it discloses evidence that is reasonable, credible, and of solid value such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. [Citations.] Reversal on this ground is unwarranted unless it appears that upon no hypothesis whatever is there sufficient substantial evidence to support [the conviction]. [Citations.] (People v. Bolin (1998) 18 Cal.4th 297, 331; see also People v. Hill (1998) 17 Cal.4th 800, 848-849.) In applying this standard to a conviction based primarily on circumstantial evidence, we uphold the jurys verdict if reasonably justified by the circumstances, even if a contrary finding might also reasonably be reconciled with the circumstances. (People v. Ceja (1993) 4 Cal.4th 1134, 1138; People v. Bean (1988) 46 Cal.3d 919, 932.)

A. Aiding and abetting

A conviction for attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing. [Citations.] (People v. Lee (2003) 31 Cal.4th 613, 623 (Lee).) The People argue there was sufficient evidence of attempted murder because there was substantial evidence defendant not only personally shot the victims but also, alternatively, that he aided and abetted Tenorio in shooting the victims by instigating a confrontation with the rival Casa Blanca gang, the natural and probable consequence of which was the shootings.

It is apparent from the jury finding not true the enhancement for personal use of a firearm that the jury rejected the prosecutions theory that defendant personally committed the shootings. The jury thus must have found defendant guilty as an aider and abettor. An aider and abettor in the commission of a crime is a principal in the crime, and thus shares the guilt of the [direct] perpetrator. (People v. Prettyman (1996) 14 Cal.4th 248, 259 (Prettyman); 31.) [T]o be guilty of attempted murder as an aider and abettor, a person must give aid or encouragement [to the direct perpetrator] with knowledge of the direct perpetrator's intent to kill and with the purpose of facilitating the direct perpetrator's accomplishment of the intended killingwhich means that the person guilty of attempted murder as an aider and abettor must intend to kill. (Lee, supra, 31 Cal.4th at p. 624.)

Here, there was substantial evidence that defendant aided and abetted Tenorio in attempting to murder the four victims. Defendant and Tenorio were the only known Hillside gang members at the party. There was evidence defendant asked rival gang member, Michael, Jr., where he was from, knowing he was a rival Casa Blanca gang member. By doing so, he incited a fistfight in which it was foreseeable the confrontation would escalate into a shooting. According to gang expert, Detective Stamps, such fist fighting often led to shootings. The jury could reasonably conclude defendant knew that inciting such a fight would likely lead to Tenorio joining in the fight and shooting the rival gang members.

There was not only evidence that the confrontation was motivated by defendant and Tenorios antipathy for the rival gang members but, in addition, there was evidence of personal animosity between defendant and Michael, Jr., over Vanessa Hurst. Michael, Jr., had previously dated her.

Statements taken from people at the hospital shortly after the shooting and the ballistic evidence also established that defendant was involved in the shootings. Several people stated that defendant admitted committing the shootings. There was also testimony Tenorio joined defendant in the fight and, after the shootings, defendant and Tenorio fled together, reflecting a consciousness of guilt. (In re Lynette G. (1976) 54 Cal.App.3d 1087, 1095.)

In addition, the ballistic evidence indicated two different guns were fired. The .32-caliber casing found at the crime scene matched a spent casing later found in Tenorios car. A fragment of a .380-caliber casing was found in the hand of one of the victims. Since Tenorio and defendant were believed to be the only Hillside gang members at the crime scene, a reasonable inference could be made that defendant aided and abetted Tenorio in shooting the Casa Blanca gang members. Not only is there ample evidence that defendant instigated the fistfight and he and/or Tenorio fired at the victims but, in addition, even assuming defendant did not fire a gun, there is ample evidence he knew Tenorio or a rival gang member would do so upon defendant inciting and engaging in a fight with rival gang members, and that murder or attempted murder was a foreseeable outcome.

Under the natural and probable consequences doctrine, a criminal defendant who aids and abets another in the commission of a crime may be liable not only for that target crime, but also for any other crime the perpetrator commits that is a natural and probable consequence of the target crime. (Prettyman, supra, 14 Cal.4th at pp. 254, 259; 31.) Thus, if a person aids and abets only an intended assault, but a murder results, that person may be guilty of that murder, even if unintended, if it is a natural and probable consequence of the intended assault. (People v. McCoy (2001) 25 Cal.4th 1111, 1117; see People v. Gonzales (2001) 87 Cal.App.4th 1, 10.) This likewise is the case as to attempted murder.

Here, the target crime was assault. Defendant incited a fight with rival gang member, Michael, Jr. As Stamps explained, [Y]ou have gang members from two different groups who are involved. You have one [defendant] thats asking the other Where are you from, basically initiating the confrontation, and then you have the second group responding as far as what their neighborhood is. Then thats what led to the fistfight and eventual shots being fired at the party. Stamps further noted that fistfights between rival gangs often lead to shootings.

Assuming defendant did not use a gun, from these circumstances the jury could reasonably conclude that defendant aided and abetted Tenorio in shooting the Casa Blanca gang members by instigating a fistfight in which it was foreseeable that such fighting would lead to Casa Blanca gang members being shot and killed.

B. Premeditation

Defendant argues there was insufficient evidence the attempted homicides were premeditated.

Premeditated murder requires evidence of premeditation and deliberation. There are three categories of evidence relevant in establishing premeditation and deliberation: planning activity, motive, and manner of killing. (People v. Anderson (1968) 70 Cal.2d 15, 26-27.) These factors are not exhaustive, however. Rather, they are intended to guide an appellate courts assessment whether the evidence supports an inference that the [attempted] killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.] (People v. Hughes (2002) 27 Cal.4th 287, 370, quoting People v. Pride (1992) 3 Cal.4th 195, 247.) The process of premeditation and deliberation does not require any extended period of time. The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly. . . . [Citations.] [Citation.] (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)

Based on the jurys finding that defendant did not personally discharge a firearm causing GBI, he could only be found guilty of premeditated attempted murder as an aider and abettor, and only if the jury reasonably could find that either he or the actual perpetrator acted with willfulness, deliberation, and premeditation in shooting the victims. (Lee, supra, 31 Cal.4th at p. 617.)

Defendant argues there was insufficient evidence that either he or Tenorio acted with willfulness, deliberation, and premeditation when committing the attempted murder offenses. We disagree. The jury could reasonably infer from the evidence that, when defendant encountered Miguel, Jr., a rival gang member, at the party in defendants gang territory, defendant decided, with premeditation, deliberation, and willfulness, to fight Miguel, Jr., anticipating that Tenorio would join in and they would kill Miguel, Jr., and his associates. Defendant was further motivated by his animosity toward Miguel, Jr., because Miguel, Jr., had dated Hurst, whom defendant was interested in.

There was also ample evidence that Tenorio acted with premeditation in shooting the victims. As discussed above, there was evidence Tenorio immediately joined in the fight and fired at the victims. Since the evidence indicated that defendant and Tenorio were the only Hillside gang members at the party and the victims were Casa Blanca gang members, the jury could reasonably have concluded Tenorio committed the shootings with premeditation. Also, the .32-caliber gun used during the party shootings was associated with Tenorio through a casing found at the crime scene and a casing found four months later in Tenorios car.

In addition, the injuries of those wounded indicated an intent to kill: Halcon was shot in the chest, left calf, right thumb, and left elbow; Michael, Jr., was shot in both legs and the scrotum; Lozano was shot in the abdomen; and Gonzalez was shot in the right hand.

Based on the totality of the evidence, the jury could reasonably have found that defendant and/or Tenorio used premeditation, deliberation, and willfulness in attempting to kill the victims.

C. Section 12022.53, Subdivision (e) Enhancement

Defendant contends that there was insufficient evidence to support the section 12022.53, subdivision (e) enhancement. This enhancement requires a finding that the defendant was a principal in the commission of the charged offense.

Under section 31, a principal is defined in relevant part as All persons concerned in the commission of a crime, . . . whether they directly commit the act constituting the offense, or aid and abet in its commission, or, not being present, have advised and encouraged its commission, . . . are principals in any crime so committed. ( 31.)

Defendant argues that since the jury found that he did not personally use a gun in committing the offenses. The jury would have had to have found true the section 12022.53, subdivision (e) enhancement based on a finding he aided and abetted in the commission of the offenses. Defendant asserts that, because there was insufficient evidence supporting a finding of aiding and abetting, there was insufficient evidence to support the section 12022.53, subdivision (e) enhancement.

As discussed above, there was ample evidence that defendant aided and abetted in the attempted murders by initiating the confrontation with rival gang members, knowing Tenorio would join in the fight and this likely would lead to Tenorio shooting the rival gang members.

3. Failure to Instruct on Assault

Defendant contends the trial court committed reversible error by not instructing the jury on the definition of assault. An assault instruction was required because the prosecution argued defendant was guilty of attempted murder based on the theory that he committed an assault which naturally and probably resulted in the four premeditated attempted murder offenses. The People argue the trial courts failure to instruct on assault was harmless error. We agree.

The trial court instructed the jury on the natural and probable consequences doctrine as follows: Under the natural and probable consequences doctrine, before you may decide whether the defendant is guilty of attempted murder you must decide whether the defendant is guilty of attempted murder you must decide whether he is guilty of assault. [] To prove that the defendant is guilty of attempted murder, the People must prove that: [] 1. The defendant is guilty of assault; [] 2. During the commission of the assault, the crime of assault was committed; [] AND [] 3. Under all of the circumstances, a reasonable person in the defendants position would have known that the commission of the attempted murder was a natural and probable consequence of the commission of the assault. (Judicial Council of California Criminal Jury Instructions, CALCRIM No. 403.)

The trial court was required to identify and instruct sua sponte on the target offense of assault. (Prettyman, supra, 14 Cal.4th at pp. 267-268, 270.) The above-quoted jury instruction identifies the target crime as assault but does not define the elements of assault for the jury.

In Prettyman, supra, 14 Cal.4th 248, the defendant argued the trial court erred in not specifying the target offense and failing to instruct the jury on the target offense elements. (Id. at p. 266.) The Prettyman court held such instruction was required in order to minimize the risk of the jury indulging in unguided speculation. (Id. at pp. 266-267, 270, 272.) The court held, however, that the omission was not prejudicial error since there was no reasonable likelihood that the jury misapplied the trial courts instructions on the natural and probable consequences doctrine. (Id. at p. 272.) The court concluded this because the prosecution in Prettyman did not argue the natural and probable consequences doctrine during closing argument. Rather, the prosecution argued the defendant aided and abetted a codefendant in killing the victim.

The Prettyman court further noted that, even if the jury relied on the natural and probable consequences doctrine, there was little likelihood that the trial courts failure to identify and describe the target crimes caused the jury to misapply the doctrine. There was no evidence of any possible target crime other than the defendants assault on the victim, an act that was indisputably criminal. (Prettyman, supra, 14 Cal.4th at p. 273.) The court concluded such error in failing to instruct on assault did not violate defendants federal constitutional right to due process, and was harmless error under state law as well because it was not reasonably likely the outcome would have been any different in the absence of the instructional error. (Id. at p. 274.)

Likewise, in the instant case, there was little likelihood that the trial courts failure to define the elements of the target crime of assault caused the jury to misapply the doctrine. Unlike in Prettyman, the trial court identified the target crime as assault. There was thus no violation of defendants federal constitutional right to due process. (Prettyman, supra, 14 Cal.4th at p. 274.)

The failure to define the elements of assault was also harmless error under state law since it was not reasonably likely the outcome would have been any different in the absence of the instructional error. (Prettyman, supra, 14 Cal.4th at p. 274; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson).) It was sufficiently clear from the evidence that the target offense consisted of defendant, assaulting Miguel, Jr., and there was overwhelming evidence that the assault occurred.

Citing People v. Hickles (1997) 56 Cal.App.4th 1183 (Hickles), defendant argues the failure to instruct on assault constitutes reversible error. Hickles is distinguishable in that there was conflicting evidence such that it was unclear as to the identity of the target offense, with one of the possible target offenses not supporting a murder conviction under the natural and probable consequences doctrine. (Id. at pp. 1195-1196.) Such is not the case here. The court identified assault as the target offense and the evidence clearly established only one assault that could possibly have been the target offense. Since it was not reasonably likely the jury misapplied the natural and probable consequences doctrine or that the outcome would have been different in the absence of the trial courts instructional error, we conclude the error was harmless. (Prettyman, supra, 14 Cal.4th at p. 274; Watson, supra, 46 Cal.2d at p. 836.)

4. Rejection of Self-Defense Instruction

Defendant contends the trial court erred in refusing to instruct the jury on self-defense. He argues that David Lopezs statements to Stamps and Impola that defendant did not instigate the fistfight provided substantial evidence supporting a self-defense instruction.

Contrary to Michael, Jr., and Daniels testimony that defendant incited the fistfight with Michael, Jr., David Lopez said that a Casa Blanca gang member, not defendant, instigated the fight. Lopez also claimed that Daniel kind of went at defendant and was hitting him.

During the trial, defense counsel requested instructions on voluntary manslaughter based on sudden quarrel and heat of passion (CALRIM No. 604) and self-defense (CALRIM No. 603). The trial court rejected the proposed instructions, concluding there was insufficient evidence to support the instructions.

As to the requested instruction on self-defense (CALCRIM No. 603), the court explained the instruction was rejected because there was no evidence that any provocation would have caused a person of average disposition to act rashly and without due deliberation, from passion rather than from judgment. In addition, the court noted that the instruction was inappropriate because defendant was arguing that he had been misidentified and such theory was inconsistent with the self-defense instruction.

Defendant argues that when there is evidence of a defense inconsistent with a defense asserted by the defendant, the court should ask the defendant if he wants instructions on the alternate theory. If a defendant requests the inconsistent instruction, it should be given without further inquiry. Defendant claims that by refusing to instruct on self-defense, the trial court deprived him of asserting the theory of self-defense, which was a complete defense to assault and which would have negated a finding that defendant intended to kill the victim or aid and abet in the homicide through instigating the fistfight.

An appellate court will uphold a trial courts refusal to instruct the jury on self defense unless the record contains substantial evidence to support the proposed instruction. (People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1270.) However, if the evidence is minimal and insubstantial, the trial court need not give the instruction. (People v. Flannel (1979) 25 Cal.3d 668, 684.) The testimony of a single witness may constitute substantial evidence. Any doubts as to the sufficiency of the evidence to require instruction on self-defense must be resolved in favor of the accused. (People v. Speaks (1981) 120 Cal.App.3d 36, 40, citing People v. Flannel, supra, at p. 685.) Questions of credibility are reserved for the jury. (People v. Breverman (1998) 19 Cal.4th 142, 162.)

To justify an act of self-defense for an assault, the defendant must have an actual and reasonable belief that bodily injury is about to be inflicted on him. (People v. Minifie (1996) 13 Cal.4th 1055, 1064; see also People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) The threat of bodily injury must be imminent [citation], and . . . any right of self-defense is limited to the use of such force as is reasonable under the circumstances. (People v. Minifie, supra, at pp. 1064-1065; 692, 693; Civ. Code, 50.) The test of reasonableness is objective; it is determined from the point of view of a reasonable person in the defendants position. (People v. Humphrey, supra, 13 Cal.4th at pp. 1082-1083.) Evidence that the victim had threatened the defendant is admissible to support a claim of self-defense. (People v. Minifie, supra, at p. 1065, citing, e.g., People v. Moore (1954) 43 Cal.2d 517, 527-529 and People v. Aris (1989) 215 Cal.App.3d 1178, 1188.)

Here, there was not substantial evidence supporting defendants proposed self-defense instructions. While there was evidence defendant did not incite the confrontation or throw the first punch, there was an absence of evidence that defendants use of force during the fistfight was reasonable under the circumstances. It can be reasonably inferred that defendant knew that his response that he was from the Hillside gang would provoke a gang fight.

Also, there was an absence of evidence that defendants act of fighting back, rather than attempting to leave the area, constituted a use of such force that was reasonable under the circumstances. (People v. Minifie, supra, 13 Cal.4th at pp. 1064-1065; 692, 693; Civ. Code, 50.) Defendant responded to clear provocation to engage in a gang fight with equally aggressive conduct known to perpetuate and escalate the level of violence, rather than making any effort to avoid the fight by leaving the area and by not flaunting his gang affiliation.

In addition, the self-defense instruction defendant requested was not supported by the evidence because the proposed instruction required the jury to find the following: The defendant acted in imperfect self-defense or defense of another if: [] 1. The defendant took at least one direct but ineffective step toward killing a person. [] 2. The defendant intended to kill when he acted. [] 3. The defendant believed that he was in imminent danger of being killed or suffering great bodily injury. [] AND [] 4. The defendant believed that the immediate use of deadly force was necessary to defend against the danger.

Defendant argues the self-defense instruction should have been given in connection with the assault but there was no evidence defendant believed he was in imminent danger of being killed or suffering GBI or that defendant believed the immediate use of deadly force was necessary to defend himself. The trial court thus appropriately rejected defendants proposed instruction.

Even if the court erred in not instructing on self-defense, the omission was harmless error under both the Chapman v. California (1967) 386 U.S. 18, 24, and Watson, supra, 46 Cal.2d at page 836standards of review. Since there was overwhelming evidence defendant did not act in self-defense, it is not reasonably probable a jury would have reached a more favorable result had instructions on self-defense been given.

5. Rejection of Instruction on Attempted Voluntary Manslaughter

Defendant contends the trial court also erred in refusing to instruct the jury on attempted voluntary manslaughter. He argues that the instruction should have been given because there was evidence that a rival gang member initiated the fist fight and defendant was the initial victim.

Voluntary manslaughter presupposes an intentional killing. A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of the lesser included offense of voluntary manslaughter. ( 192.) (People v. Barton (1995) 12 Cal.4th 186, 199.) Attempted voluntary manslaughter instructions are justified only if, notwithstanding the fact the defendant harbored the intent to kill, there were circumstances negating the malice required for murder. [A] defendant who intentionally and unlawfully kills lacks malice only in limited, explicitly defined circumstances: either when the defendant acts in a sudden quarrel or heat of passion ( 192, subd. (a)), or when the defendant kills in unreasonable self-defensethe unreasonable but good faith belief in having to act in self-defense [citations]. (People v. Barton, supra, at p. 199.) Only these circumstances negate malice when a defendant intends to kill. (People v. Lee (1999) 20 Cal.4th 47, 59; see also People v. Rios (2000) 23 Cal.4th 450, 460.) The burden is on the defendant to establish both provocation and heat of passion. (People v. Dixon (1995) 32 Cal.App.4th 1547, 1552.)

Here, there was overwhelming evidence that defendant instigated the fight with rival gang member, Michael, Jr., and this led to defendant or Tenorio shooting the Casa Blanca victims. There was no evidence that when the shootings occurred during the fistfight, defendant or Tenorios lives were threatened. There also was no evidence, as the trial court noted, that 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, and shoot at others during a fistfight.

While there was evidence a Casa Blanca gang member instigated the fistfight, there was substantial evidence to the contrary and no evidence was offered that suggested that defendant acted in a heat of passion when he declared his gang affiliation after being asked where he was from. It could reasonably be anticipated that defendants declaration that he was in a rival gang would provoke a gang fight.

There also is no evidence that, when defendant was punched and fought back, he acted in the heat of passion or upon sudden quarrel. The fistfight was a predictable outcome of defendants declaration that he was from Hillside and there is no evidence that being punched would have caused a person of average disposition under such circumstances to act rashly and attempt to shoot others or continue fighting.

For the same reasons stated above, we conclude there was insufficient evidence to instruct on the defense theory of imperfect or unreasonable self-defense. Defendants proposed instruction, rejected by the trial court, required evidence that The defendant believed that the immediate use of deadly force was necessary to defend against imminent danger of being killed or suffering great bodily injury. There was no evidence of this. There was no evidence that anyone was in possession of a weapon, other than Tenorio and defendant; that anyone had threatened defendant or Tenorio with a weapon; or that defendant had reason to believe or actually believed he was in imminent danger of being killed or sustaining GBI.

6. Disposition

The judgment is affirmed. The superior court is ordered to issue a modified abstract of judgment stating that defendant is sentenced on counts 1 through 4 to life with the possibility of parole. The superior court is further ordered to forward a certified copy to the Department of Corrections and Rehabilitation.^[2]

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Richli

Acting P. J.

s/Miller

J.

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^[1] Unless otherwise noted, all statutory references are to the Penal Code.

^[2] The abstract of judgment states that defendant is sentenced on counts 1 through 4 to life without the possibility of parole. Defendant claims in a footnote in his appellants opening brief that this is incorrect and requests the abstract to be corrected but does not state what the sentence should have been. The People do not respond to this request.

We agree, based on our review of the record, including the reporters transcript and March 23, 2007 minute order reflecting the courts sentencing order, that the abstract of judgment erroneously states that the court sentenced defendant on counts 1 through 4 to life without the possibility of parole. The abstract of judgment should be modified to state that defendant was sentenced on counts 1 through 4 to life with the possibility of parole.