THE PEOPLE v. RAMON SANTANA (2011)

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

Appellant Ramon Santana was charged by information with murder.  (Pen.Code, § 187, subd. (a).) ¹  It was alleged that a principal personally and intentionally discharged a firearm, a handgun, which proximately caused great bodily injury and death (§ 12022.53, subds.(d) & (e)(1));  that a principal personally and intentionally discharged a firearm, a handgun (§ 12022.53, subds.(c) & (e)(1));  and that a principal personally used a firearm, a handgun (§ 12022.53, subds.(b) & (e)).   It was also alleged that appellant committed the offense for the benefit of, at the direction of, or in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members. (§ 186.22, subd. (b)(1)(C)).

After his first trial deadlocked, appellant was tried again on the same charges.   He appeals from a judgment entered after a jury found him guilty of first-degree murder (§ 187, subd. (a)) and found true the charged allegations.

Appellant was sentenced to state prison for 50 years to life consisting of the following:  25 years to life for the murder conviction and a consecutive 25-year-to-life term for the section 12022.53, subdivisions (d) and (e)(1) enhancement allegation.   The sentences on the section 12022.53, subdivisions (b) and (e)(1) and section 12022.53, subdivisions (c) and (e)(1) enhancements were stayed pursuant to section 654.   The trial court stayed the section 186.22, subdivision (b)(1)(C) gang enhancement pursuant to section 654.²

We modify the judgment to strike the stayed section 186.22, subdivision (b)(1)(C) gang enhancement and impose a minimum 15-year parole eligibility pursuant to section 186.22, subdivision (b)(5).   We affirm the judgment in all other respects.

CONTENTIONS

Appellant contends that the trial court committed prejudicial error when it failed to instruct the jury on voluntary manslaughter.

FACTS AND PROCEDURAL HISTORY

The events leading up to the murder of Tramaine Thomas

Viewing the whole record in the light most favorable to the judgment below as we must (People v. Ceja (1993) 4 Cal.4th 1134, 1138-1139), the evidence established the following.   On August 19, 2007, around 4:00 p.m., Tramaine Thomas (Thomas) was shot and killed as he sat outside on the steps of his mother's house.   Thomas, who lived in Arizona, was not affiliated with any gang.

The events leading up to the shooting are as follows.   On August 17, 2007, Raul Garcia (Raul),³ a member of the Compton Varrios Vatos Locos (Vatos Locos) gang, “banged on,” or harassed members of the rival Grape Street gang at Wilson Park, which is located across the street from appellant's house.   The Grape Street gang is an African-American gang.   Later that day, Grape Street gang members barged in through the driveway gate of appellant's residence looking for Raul, who was a friend of appellant and often visited him.   Raul was not there, but appellant's aunt Elizabeth Montes (Elizabeth),⁴ his cousin Perla Montes (Perla), his younger brother Tommy, his sister Myra, his grandmother (Elizabeth's mother), and his friend Rene Leira (Leira) were present.   One of the Grape Street gang members was holding a bag of ice to his face.   When another Grape Street gang member asked the man with the bag of ice if the man who hit him was present, the man replied, “He's not here.   It's not them.”   The Grape Street gang members then punched appellant's younger brothers and threw chairs around.   One of the chairs hit appellant's grandmother.   Elizabeth was hit in the face as she walked up to one of the girls who was with the Grape Street gang.   Appellant heard about the incident after he returned home from work.   Later that day, appellant bought a gun.

Two days later, on August 19, 2007, Leira was severely beaten by Grape Street gang members at Wilson Park. Appellant called his friend Carlos Zepeda (Zepeda), told him that Leira had just been beaten by Grape Street members, and asked him to come over.   Appellant told Zepeda that “we're” going to shoot some guys who live on Spring Street.   Appellant told Zepeda “we're going to go get these motherfuckers.   We're going to go dump on them.”   Zepeda testified that appellant was upset, mad, and sad because Leira was injured by the Grape Street gang members.   Appellant gave his gun to Raul or Luis as part of a planned retaliation.   Luis shot Thomas.

Cecelia Washington testified that she saw a Hispanic teenager wearing a white T-shirt and dark shorts walking behind her as she went to the liquor store.   He stopped at a white gate, and moved an object from his left pocket to his right pocket.   Inside the liquor store, she heard several gunshots.   She saw the Hispanic boy run from behind an apartment building into a vacant lot.

Melvin Barber (Barber),⁵ who lived on Willow Avenue (one block away from Spring Street), testified that he saw a white van pull up near the front of his house.   He described the driver as a Latino man with a heavyset build.   The driver sat in the van looking in the direction of Spring Street.   Three to four minutes later, Barber heard two gunshots and then saw another man run from the direction of Spring Street, across a nearby field, and toward the white van, which drove off after he entered it.   Barber described the second man as Latino, five feet five inches to five feet seven inches in height, and in his late teens or early twenties.

About 20 minutes after the first phone call with appellant, Zepeda called appellant to tell him he would not be able to meet him at Wilson Park. Appellant told him not to go to the park because “we just did it and it's hot.”   He said “hey, we just dumped on this dude.   We let them have it.   We served them.”   Later, appellant and Raul picked up Zepeda in Raul's white van to go to Raul's house.

Appellant's family joined him at Raul's house for a few hours.   On the way back to appellant's house, they stopped at Wilson Park. At 9:00 p.m., Los Angeles County Sheriff's Department Deputy Benjamin Torres saw appellant standing near a vehicle parked in front of Wilson Park. When appellant noticed the deputies he removed a gun from his waistband and tossed it through the open rear passenger window.   Deputy Torres detained appellant, Zepeda, another man, appellant's wife, Perla, and three children.   Appellant admitted that the gun belonged to him.   He had 20 live rounds of ammunition on his person.   The gun contained four live rounds.

The next day, law enforcement officers searched the area outside Raul and Luis's house and recovered a trash bag from a white van.   Inside the trash bag was a black bag containing a pink box with six expended shell casings.   Three expended bullets were recovered from Spring Street.   Inside Raul's house, officers found various items bearing the Vatos Locos gang name.

A criminalist examined the gun recovered from appellant and opined that the three expended bullets collected from the crime scene and the bullet removed from Thomas's body were fired from appellant's handgun.   The six shell casings collected from the trash can outside Raul's house were fired from appellant's gun.

A gang expert opined that appellant is a member of the Vatos Locos gang based on the tattoos of “Compton,” “Happy,” and three dots on his hand, as well as the gang graffiti around his residence.

Appellant's testimony

Appellant testified that he belonged to the Vatos Locos gang in high school, but no longer associated with the gang.   Appellant became scared and mad when he came home from work and learned about the attack on his family by the Grape Street gang members.   He bought a gun to protect his family, but did not buy any ammunition.

On August 19, 2007, Jairo Sanchez (Sanchez) knocked on appellant's door, told him that Leira was being beaten up, and asked him for his gun.   Appellant refused to give him the gun.   When appellant looked outside, the attackers were gone, and someone had called an ambulance for Leira.   Law enforcement officers summoned to the scene spoke to appellant's wife and Perla about the incident.

Appellant testified that he was concerned, but not angry, when he saw Leira's condition.   Raul called appellant who told him that Leira had been badly beaten.   Raul became angry and said that he was coming to appellant's house.   Appellant called Zepeda and asked him to come over to the house.   He testified he planned to “flash” the unloaded gun to scare any intruders away, but admitted “it probably wouldn't work.”

Appellant feared that the Grape Street gang members might return, so he stood in his driveway with Sanchez for about 20 minutes.   Raul and Luis pulled up in a white van.   Appellant had to go to the bathroom, so he handed the gun to Sanchez and told him to hold it for him.   Appellant did not give Sanchez instructions to shoot anyone.   He did not talk to Raul or Luis when they pulled up.

While he was inside the house, appellant heard gunshots.   He then ran outside.   Raul and Luis drove up in the van.   Luis ran towards appellant and tried to give him the gun.   Appellant was surprised that Luis had the gun because appellant had handed the gun to Sanchez.   When appellant refused to take the gun, Raul and Luis drove away.   Sanchez said they had to get out of there and they should get a ride to Raul's house.   Appellant called Zepeda and told him not to come over because something had happened at the park.   Appellant's brother-in-law gave him a ride to Raul's house.   When appellant asked Raul and Luis what happened, they became quiet.   Appellant noticed that his gun was in a bag with some cartridges at Raul's house.

Appellant's wife and children joined appellant at Raul's house.   After an hour and a half, appellant decided to return home.   Pedro Enriquez gave appellant and his family a ride in his red Neon. Appellant took the gun back so that Raul and Luis could not use it again and to protect his family if the Grape Street gang retaliated.   They stopped at Wilson Park and appellant retrieved his gun from underneath the hood of the car where it was hidden.   He started to load the gun in case they were ambushed.   When he saw the law enforcement officers, he dropped the gun inside the car.

Defense witness testimony

Appellant's supervisor at Earl Scheib Paint & Body testified that appellant had been employed with him for nine years and was an outstanding employee who never caused trouble.   Elizabeth testified that she did not know appellant to be a troublemaker, although she was aware that he had been a member of the Vatos Locos gang while he was in high school.   Jose Cruz Romero, a friend of appellant and his family, testified that he did not know appellant to be a troublemaker or gang member.   Bernardo Santana, appellant's uncle who worked with him at Earl Scheib Paint & Body, also testified that he did not know appellant to be a troublemaker or gang member.

DISCUSSION

I. The trial court did not err when it failed to instruct the jury sua sponte on the lesser offense of voluntary manslaughter

A. Appellant's argument

Appellant contends that the trial court erred when it failed to sua sponte instruct the jury on the lesser offense of voluntary manslaughter because the jury could have inferred from the evidence “that appellant provided his gun to the shooter in a fit of uncontrolled rage ignited by passion caused by the Grape Streeters' provocation.”   We disagree with appellant's argument.

B. Relevant Legal Principles

Murder is the unlawful killing of a human being with malice aforethought. ( 187, subd. (a).)  A defendant who commits an intentional and unlawful killing but who lacks malice is guilty of ․ voluntary manslaughter. ( 192.)  ( [Citation].)   Generally, the intent to unlawfully kill constitutes malice. ( 188;  [Citations].)   But a defendant who intentionally and unlawfully kills lacks malice ․ 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.] ).   Because heat of passion and unreasonable self-defense reduce an intentional, unlawful killing from murder to voluntary manslaughter by negating the element of malice that otherwise inheres in such a homicide [citation], voluntary manslaughter of these two forms is considered a lesser necessarily included offense of intentional murder [citation.] ).  (People v. Breverman (1998) 19 Cal.4th 142, 153-154 (Breverman ).)

It is settled that in criminal cases, even in the absence of a request, the trial court must instruct on the general principles of law relevant to the issues raised by the evidence.  [Citations.]  The general principles of law governing the case are those principles closely and openly connected with the facts before the court, and which are necessary for the jurys understanding of the case.  [Citation.]  That obligation has been held to include giving instructions on lesser included offenses when the evidence raises a question as to whether all of the elements of the charged offense were present [citation], but not when there is no evidence that the offense was less than that charged.  [Citations.]  (Breverman, supra, 19 Cal.4th at p. 154.)

[T]he existence of any evidence, no matter how weak will not justify instructions on a lesser included offense, but such instructions are required whenever evidence that the defendant is guilty only of the lesser offense is substantial enough to merit consideration by the jury.  [Citations.]  Substantial evidence in this context is evidence from which a jury composed of reasonable [persons] could ․ conclude[ ] that the lesser offense, but not the greater, was committed.  ( [Citation.].) (Breverman, supra, 19 Cal.4th at p. 162.)

An intentional, unlawful homicide is ‘upon a sudden quarrel or heat of passion’ (§ 192(a)), and is thus voluntary manslaughter (ibid.), if the killer's 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’ ” ' [citations] other than revenge [Citation.]  ‘However, if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter․’  [Citation.]”  (Breverman, supra, 19 Cal.4th at p. 163.)

“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.   As we explained long ago in interpreting the same language of section 192, ‘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 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.)

If revenge or punishment is the motivation behind the killing, the voluntary manslaughter instruction cannot be given.  (People v. Daniels (1991) 52 Cal.3d 815, 868.)   Hence, the rule is that, if sufficient time has elapsed for the passions of an ordinarily reasonable person to cool, the killing is murder, not manslaughter.  (Ibid.)

[T]he duty to give instructions, sua sponte, on particular defenses and their relevance to the charged offense arises 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.  (People v. Sedeno (1974) 10 Cal.3d 703, 716 [no duty to give sua sponte heat of passion voluntary manslaughter instruction where there is no direct evidence of heat of passion nor reason for the court to know that the defendant is relying on that defense].)

C. The evidence did not support a voluntary manslaughter instruction and was inconsistent with appellant's defense

Appellant first contends that the evidence was sufficient for the jury to find both provocation and heat of passion, even though the provocation did not come from the victim.   Appellant argues that because Luis reasonably believed Thomas to be one of the assailants, the voluntary manslaughter instruction should have been given even though the provocation did not emanate from Thomas.   He urges further that even if Luis's belief was not reasonable, the provocation required for appellant to be guilty of voluntary manslaughter was not required to come from Thomas under People v. Spurlin (1984) 156 Cal.App.3d 119, 126, superseded by statute on other grounds as stated in People v. Coad (1986) 181 Cal.App.3d 1106-1107, which states “[T]he provocation must have been given by the person who was killed, except in those cases in which the wrong person was killed by accident or mistake, or deceased was present aiding and abetting the person causing the provocation.   But, that dictum in People v. Spurlin, supra, at page 126, was expressly rejected by our Supreme Court in People v. Verdugo (2010) 50 Cal.4th 263, 294 which stated the rule as:  “ ‘ “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.”   [Citation.]’ ”

Proceeding on the assumption that Luis reasonably believed Thomas to be one of the assailants, we turn to appellant's other arguments.   Appellant contends that the voluntary manslaughter instruction should have been given because he participated in Thomas's killing while his judgment was obscured due to passion aroused by the Grape Streeters attack at his residence and subsequent beating of Leira.   But, the attack on his family members occurred while he was at work.   By the time he arrived home and heard about the confrontation, it was over.   There was no evidence that appellant was acting under a heat of passion aroused by the attack on his family when he handed the gun to Sanchez two days later.   Nor has he convinced us that an ordinarily reasonable person would naturally be aroused to a heat of passion under such circumstances.

Moreover, substantial evidence does not support that appellant's reason was actually obscured as the result of a strong passion when he saw Liera after he had been beaten.   The record shows that when Sanchez requested appellants gun while Leira was being beaten, appellant had the presence of mind to refuse to give Sanchez his gun.   Nonetheless, appellant argues that when he saw Leiras condition, appellant had been provoked to fury and deep distress.   But, appellant testified that he was concerned, but not angry when he saw Leiras condition.   While Zepeda testified that appellant sounded sad and mad when he described the beating of Leira, there is no evidence that appellant was in an uncontrollable rage.   Appellant testified that his family members were interviewed and Leira was taken to the hospital.   He then stood outside on his driveway for about 20 minutes before handing his gun to Sanchez.   Thus, the record supports the inference that sufficient time had elapsed for the passions of an ordinarily reasonable person to cool.  (People v. Avila (2009) 46 Cal.4th 680, 705.)   We are not convinced that the sight of Leiras injuries would arouse feelings of homicidal rage or passion in an ordinarily reasonable person.  (Id. at p. 706.)

Here, the evidence does not support appellants argument on appeal that he may have been in an uncontrollable rage when he saw Leira after he was beaten, and we conclude the attack was not sufficiently provocative to cause an ordinary person of average disposition to act rashly or without due deliberation and reflection.   Furthermore, a voluntary manslaughter instruction was inconsistent with appellant's defense that he did not intend to commit the murder and had no knowledge that Luis was going to shoot Thomas.  (People v. Sedeno, supra, 10 Cal.3d at p. 716.)

Even if we were to agree with appellant that the court should have instructed on voluntary manslaughter based on heat of passion any error in failing to give such instructions would have been harmless.  (People v. Prince (2007) 40 Cal.4th 1179, 1267 [The erroneous failure to instruct on a lesser included offense generally is subject to harmless error review under the standard of People v. Watson (1956) 46 Cal.2d 818, ․ 836837.   Reversal is required only if it is reasonably probable the jury would have returned a different verdict absent the error or errors complained of].)  [Citation.]   Here, as previously discussed, the evidence of heat of passion was insubstantial.   But the evidence of premeditation was compelling.   Two days prior to the shooting, appellant bought a gun.   After appellant told Raul about Leiras beating, Raul said he was going to appellants house.   Immediately prior to the shooting, appellant told Zepeda that were going to shoot some guys.   Appellant stood outside his residence with a gun.   Before he went back to the house he gave the gun to Sanchez.   After the shooting, he told Zepeda that we let them have it.   We served them.

Further, the jury was instructed as to the elements of murder, CALCRIM No. 520 ⁶ and the degrees of murder, CALCRIM No. 521.⁷  We conclude that in light of the jurys finding that the murder was willful, deliberate, and premeditated, the jury would not have convicted appellant of voluntary manslaughter based on heat of passion had it been so instructed.  (People v. Prince, supra, 40 Cal.4th at p. 1268 [As for the remaining murder count involving the murder of [the victim], we do not believe the jury would have convicted defendant of the second degree murder of [the victim] had it been instructed on that offense, in light of the jury's verdicts as to the five other homicide charges”];  People v. Manriquez (2005) 37 Cal.4th 547, 586 [in light of instructions that evidence of provocation could be considered in determining the degree of murder and considering the factual determinations made by the jury in reaching a verdict of first degree murder, jury would have returned the same verdict of first degree murder as to the killing of the victim even if the voluntary manslaughter instruction refused by the trial court had been given];  People v. Wharton (1991) 53 Cal.3d 522, 572 [Finally, although the jury was not directly instructed that provocation could occur over a ‘considerable period of time,’ the jury was instructed that a killing is first degree murder if it is ‘the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not upon sudden heat of passion.’  [Citation.]  By finding defendant was guilty of first degree murder, the jury necessarily found defendant premeditated and deliberated the killing”].)

We are satisfied that the trial court did not err in failing to instruct on voluntary manslaughter and that any error was harmless.

II. The judgment is modified to strike the stayed section 186.22, subdivision (b)(1)(C) gang enhancement and to impose a 15-year minimum parole eligibility pursuant to section 186.22, subdivision (b)(5)

Neither party raised the issue of whether the section 186.22, subdivision (b)(1)(C) gang enhancement should be stricken and a 15-year minimum parole eligibility imposed instead pursuant to section 186.22, subdivision (b)(5).   Neither party responded to our letter informing them that absent objection, we would modify the judgment to strike the stayed section 186.22, subdivision (b)(1)(C) gang enhancement and impose a 15-year minimum parole eligibility pursuant to section 186.22, subdivision (b)(5).

We conclude that because the jury convicted appellant of first-degree murder, an offense that carries a minimum sentence of 25 years to life in state prison, appellant's gang enhancement is governed by the 15-year minimum parole eligibility term pursuant to section 186.22, subdivision (b)(5).  (People v. Lopez (2005) 34 Cal.4th 1002, 1007-1008.)   We note that the modification of the judgment has no practical effect because appellant's conviction for first-degree murder carries a 25-year minimum parole eligibility term. (§ 190, subds. (a) & (e);  People v. Lopez, supra, at p. 1009.)

We modify the judgment to strike the stayed section 186.22, subdivision (b)(1)(C) gang enhancement and impose a 15-year minimum parole eligibility term pursuant to section 186.22, subdivision (b)(5).

DISPOSITION

The judgment is modified to strike the stayed section 186.22, subdivision (b)(1)(C) gang enhancement and impose a 15-year minimum parole eligibility term pursuant to section 186.22, subdivision (b)(5).   The judgment is affirmed in all other respects.   The trial court is directed to send a corrected copy of the abstract of judgment to the Department of Corrections and Rehabilitation.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

ASHMANN-GERST

We concur:

FOOTNOTES

FN1. All further statutory references are to the Penal Code unless otherwise indicated..  FN1. All further statutory references are to the Penal Code unless otherwise indicated.

FN2.  The trial court did not impose a term pursuant to section 186.22, subdivision (b)(1)(C) but merely stated:  “That allegation or enhancement will be stayed as well.”.  FN2.  The trial court did not impose a term pursuant to section 186.22, subdivision (b)(1)(C) but merely stated:  “That allegation or enhancement will be stayed as well.”

FN3. Because Raul and his brother Luis share the same last name, we will refer to them by their first names to avoid confusion..  FN3. Because Raul and his brother Luis share the same last name, we will refer to them by their first names to avoid confusion.

FN4. Perla Montes is Elizabeth Montes's niece.   We will refer to them by their first names to avoid confusion..  FN4. Perla Montes is Elizabeth Montes's niece.   We will refer to them by their first names to avoid confusion.

FN5. Barber's testimony from appellant's first trial was read into the record because Barber had died before the second trial..  FN5. Barber's testimony from appellant's first trial was read into the record because Barber had died before the second trial.

FN6. As given, CALCRIM No. 520 states:  “The defendant is charged in Count 1 with murder in violation of Penal Code section 187.“To prove that the defendant is guilty of this crime, the People must prove that:“1. The defendant committed an act that caused the death of (another person);AND“2. When the defendant acted, he had a state of mind called malice aforethought;/.)“There are two kinds of malice aforethought, express malice and implied malice.   Proof of either is sufficient to establish the state of mind required for murder.“The defendant acted with express malice if he unlawfully intended to kill.“The defendant acted with implied malice if:“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;AND“4. He deliberately acted with conscious disregard for (human) life.“Malice aforethought does not require hatred or ill will toward the victim.   It is a mental state that must be formed before the act that causes death is committed.   It does not require deliberation or the passage of any particular period of time.“An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act.   A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.   In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.“There may be more than one cause of death.   An act causes death only if it is a substantial factor in causing the death.   A substantial factor is more than a trivial or remote factor.   However, it does not need to be the only factor that causes the death.”.  FN6. As given, CALCRIM No. 520 states:  “The defendant is charged in Count 1 with murder in violation of Penal Code section 187.“To prove that the defendant is guilty of this crime, the People must prove that:“1. The defendant committed an act that caused the death of (another person);AND“2. When the defendant acted, he had a state of mind called malice aforethought;/.)“There are two kinds of malice aforethought, express malice and implied malice.   Proof of either is sufficient to establish the state of mind required for murder.“The defendant acted with express malice if he unlawfully intended to kill.“The defendant acted with implied malice if:“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;AND“4. He deliberately acted with conscious disregard for (human) life.“Malice aforethought does not require hatred or ill will toward the victim.   It is a mental state that must be formed before the act that causes death is committed.   It does not require deliberation or the passage of any particular period of time.“An act causes death if the death is the direct, natural, and probable consequence of the act and the death would not have happened without the act.   A natural and probable consequence is one that a reasonable person would know is likely to happen if nothing unusual intervenes.   In deciding whether a consequence is natural and probable, consider all of the circumstances established by the evidence.“There may be more than one cause of death.   An act causes death only if it is a substantial factor in causing the death.   A substantial factor is more than a trivial or remote factor.   However, it does not need to be the only factor that causes the death.”

FN7. As given CALCRIM No. 521 states:  “If you decide that defendant has committed murder, you must decide whether it is murder of the first or second degree.“The defendant has been prosecuted for first degree murder under the theory ‘the murder was willful, deliberate, and premeditated.’“The defendant is guilty of first degree murder if the People have proved that (he/she) acted willfully, deliberately, and with premeditation.   The defendant acted willfully if (he/she) intended to kill.   The defendant acted deliberately if (he/she) carefully weighted the considerations for and against (his/her) choice and, knowing the consequences, decided to kill.   The defendant acted with premeditation if (he/she) decided to kill before committing the act that caused death.“The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated.   The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances.   A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated.   On the other hand, a cold, calculated decision to kill can be reached quickly.   The test is the extent of the reflection, not the length of time.“All other murders are of the second degree.“The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime.   If the People have not met this burden, you must find the defendant not guilty of first degree murder.”.  FN7. As given CALCRIM No. 521 states:  “If you decide that defendant has committed murder, you must decide whether it is murder of the first or second degree.“The defendant has been prosecuted for first degree murder under the theory ‘the murder was willful, deliberate, and premeditated.’“The defendant is guilty of first degree murder if the People have proved that (he/she) acted willfully, deliberately, and with premeditation.   The defendant acted willfully if (he/she) intended to kill.   The defendant acted deliberately if (he/she) carefully weighted the considerations for and against (his/her) choice and, knowing the consequences, decided to kill.   The defendant acted with premeditation if (he/she) decided to kill before committing the act that caused death.“The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated.   The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances.   A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated.   On the other hand, a cold, calculated decision to kill can be reached quickly.   The test is the extent of the reflection, not the length of time.“All other murders are of the second degree.“The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime.   If the People have not met this burden, you must find the defendant not guilty of first degree murder.”

_, Acting P.J. DOI TODD _, J. CHAVEZ