Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Dewey L. Falcone, Judge. Los Angeles County Super. Ct. No. VA067520
Patricia Ihara 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, Lance E. Winters and Tita Nguyen, Deputy Attorneys General, for Plaintiff and Respondent.
CHAVEZ, J.
A jury convicted appellant Eduardo Linares of second degree murder as a lesser included offense of felony murder during a robbery. The jury found true the allegation that a principal was armed with a firearm in the commission of the murder. (Pen. Code, §§ 187, subd. (a); 12022, subd. (a)(1).) The trial court sentenced appellant to prison for a total of 16 years to life.
All further references to statutes are to the Penal Code unless stated otherwise.
Appellant appeals on the grounds that: (1) he was denied his constitutional right to due process of law because the evidence was insufficient to support his second degree murder conviction; (2) the trial court erred when it denied appellant’s new trial motion on the ground that the jury’s verdict was contrary to the evidence; alternatively, the trial court erred when it failed to identify the target crime and describe the elements of the target crime under the natural and probable consequence doctrine; (3) the court committed reversible error, lessened the People’s burden of proof, and denied appellant his right to trial by jury and due process of law by giving a legally incorrect definition of malice; (4) the trial court committed prejudicial error when, in response to the jury’s first request for more clarification on second degree murder and manslaughter, and its third request for clarification of the words “intentional act,” it directed the jury back to the given jury instructions; and (5) the cumulative effect of the instructional errors requires reversal.
FACTS
I. Prosecution Evidence
Victor Aguilar (Aguilar) worked at GTO Tires on Eastern Avenue in Bell Gardens. He worked near K’s Market, and he knew members of the family who ran the market. One of them was Alfredo Reynaga (Reynaga), the victim in this case.
Appellant appeared at the tire shop at approximately noon on the day of the shooting with a thin, white-skinned Hispanic man. Aguilar thought appellant’s companion was five feet four inches in height. Appellant and the thin man, whom appellant later identified as Ricardo, both wore button-down shirts and baseball caps. They arrived in a blue Suburban with paper plates that appellant was driving. The two men asked Aguilar about rims. At one point, Aguilar and Cruz Ibarra (Ibarra), the tire store owner’s son, left the store to buy food. When they returned to the shop, appellant and Ricardo were gone.
Appellant and Ricardo returned approximately one hour later. Appellant again drove the Suburban. The two men asked more questions about rims and stayed approximately 10 or 15 minutes. They returned a third time at approximately 3:50 p.m.
On this third visit, after appellant and his companion had been in the tire store approximately 10 minutes, Reynaga arrived. According to Aguilar, Ibarra had telephoned Reynaga to come to the tire store because Reynaga was selling some rims. Reynaga arrived with a friend and was carrying a black plastic market bag containing something that looked like a shoe box. Reynaga spoke with appellant and Ricardo for five minutes. Aguilar heard Reynaga tell the men to go to his store. Appellant and Ricardo went with Reynaga towards K’s Market on foot. Ibarra followed them about four minutes later. After that, Aguilar heard a gun shot.
Aguilar and his coworkers went outside and saw appellant and Ricardo running toward the tire shop. Ricardo had a torn shirt and it seemed he had been in a fight. Appellant was cradling something under his arm. The object looked like the bag Reynaga had been carrying. Appellant opened the Suburban’s passenger door for Ricardo and then got into the driver’s seat and drove off. Aguilar then saw Reynaga on the ground beside K’s Market.
At approximately 4:00 p.m. on August 13, 2001, Defydd Innes (Innes) was driving northbound on Eastern Avenue when he saw two men run out of K’s Market at the corner of Gotham and Eastern Avenue. The two were followed almost immediately by a third man, who ran out very fast and began grabbing for a folded bag that the middle person had. The bag appeared to contain an object that was about four and a half inches by nine inches in size. The first man, who was taller than the other two and who wore a cap, kept walking toward the corner. The second individual was about five feet ten inches in height. The man in the cap turned around, pulled out a gun, and fired one shot. Innes heard a horrific scream and saw that the last person coming out of the store had been hit. Innes kept on driving but then made a U-turn back to the market. He saw the shooter, who appeared to be Latino, and the second man start to run into the street. The second man was carrying the package. Innes told a bystander to call the police and proceeded to follow the two men, who had climbed into a large, black SUV parked at the curb. The shooter got into the passenger side and the person with the package got into the driver’s side. Innes was only able to approach within half a block of the SUV before he lost sight of it. Innes saw only the three individuals in the area around the market.
Dr. Stephen Scholtz, a forensic pathologist with the Los Angeles County Department of Coroner performed an autopsy on Reynaga. Reynaga died as a result of a gunshot wound to the torso. The bullet entered his body on the left side and exited on the right side.
Sergeant Chris Brackpool of the Los Angeles County Sheriff’s Department Homicide Bureau was one of the investigating officers on the case. Sergeant Brackpool noticed that the cash register in K’s Market was undisturbed. Apart from two soda bottles that had toppled in the front of the store, the store was untouched.
Sergeant Brackpool recovered an expended bullet about 11 feet from the curb line of Eastern Avenue. He also recovered a piece of cloth approximately 23 feet from the curb and a shoe box lid in the parking lot area of K’s market. Having learned that the suspect’s vehicle had a red paper license plate with white lettering, Sergeant Brackpool looked for possible dealerships in the area that had that type of plate. He spoke with someone at a dealership whose information led Sergeant Brackpool to an address listed on a document. Sergeant Brackpool’s partner, Detective Margarita Barron, eventually located the vehicle. Sergeant Brackpool also received information that a suspect was supposed to appear at an office in South Gate.
On August 15, 2001, Detective Barron went to appellant’s probation office in South Gate to take pictures of him. She and Sergeant Brackpool had information that appellant was one of the suspects in this case, and she needed to prepare a photographic lineup (six pack) to show witnesses. Appellant was surprised and apprehensive when Detective Barron took his photograph.
A few days after Detective Barron photographed appellant, he went to Mexico, where he remained for approximately two and one-half years. He was arrested approximately one month after he returned to the Los Angeles area in 2004.
Detective Barron recorded a lengthy interview with Aguilar on August 14, 2001, the day after the incident. During a second interview with him she showed him a six pack. She also interviewed him a third time. Detective Barron did not hear from Aguilar that the suspects were carrying any sort of package until Aguilar’s testimony at the preliminary hearing in June 2005.
Detective Barron spoke with appellant on March 30, 2004. After advising appellant of his Miranda rights, she conducted a recorded interview with appellant in Spanish. The recording was played to appellant’s jury as they followed along with an English translation.
Miranda v. Arizona (1966) 384 U.S. 436 (Miranda).
On the recording, appellant told Detective Barron that he met Ricardo when they were students at Huntington Park High School. Appellant drove Ricardo several times to see Reynaga so that Ricardo could buy cocaine from Reynaga. Appellant told “the detective” about it and the detective told him to wait. Appellant said that the plan was for appellant to take the money to Reynaga, and Reynaga and Ricardo were going to make the deal. Ricardo was going to buy two kilos of cocaine at $14,000 per kilo. They were going to do the deal there in the street, but at the last minute they decided to go to the store. They trusted appellant and did not know what he was planning. When Detective Barron asked appellant who was carrying a gun, appellant answered, “Ricardo.” Appellant knew Ricardo was carrying a gun because Ricardo had told him he was carrying a pistol for security.
During appellant’s subsequent trial testimony he claimed that he had contacted Detective Jose Escobedo, his former handler when appellant was an informant, and had told him about the drug deal Ricardo was planning.
As they walked to the store, Ricardo and Reynaga were talking, and appellant followed behind with a friend of Reynaga’s—a very dark man who was built like appellant. Another friend of Reynaga’s showed up too. Reynaga opened up the store, and appellant entered first. He thought Reynaga entered next, but he was not sure. Ricardo was going to come in with Reynaga’s friend, but they started arguing. Reynaga said something like, “I already knew you were up to this.” Reynaga started screaming and he took off running. After that, appellant left. Reynaga and Ricardo smashed into each other at the door and fell to the ground. As appellant ran out, he kicked the bag, which was lying on the ground. Reynaga’s two friends were near the pay phone. Appellant said that from that point, “guns got pulled out, and the other guys that were there had guns too.” Ricardo and Reynaga started fighting. A man called El Diablo, a friend of Ricardo’s who had helped put the deal together, showed up and pulled out a gun also.
Appellant told Detective Barron he was on the other side of the street when he heard the shot. He saw Ricardo running with a gun in his hand. Ricardo showed up at appellant’s truck and they got in and left. Ricardo threw his torn shirt out the car window on the freeway. Ricardo had the bag Reynaga had been carrying and all the money. Appellant said that Ricardo’s intention had not been to take the bag. Ricardo’s car was at appellant’s house, and after appellant drove him there, Ricardo went his own way.
Upon further questioning by Detective Barron, appellant acknowledged he had offered to drive his Suburban to the deal site. He said, “[I]t seemed the best thing for me to work with Jose because he was going to—he would pay me for—for what I did for—with them.” Jose was Jose Escobedo, the detective who had told him not to go alone. Ricardo was going to pay appellant $400 for driving “or depending on how much he was going to make.”
Appellant saw on the news on the evening of the shooting that Reynaga had died. Appellant did not know El Diablo’s true name, and he had heard later that El Diablo had been killed by police. Appellant believed Ricardo’s last name was Mendoza, and he remembered mentioning that name to Jose Escobedo. Detective Barron showed appellant a Huntington Park High School yearbook from the time appellant was in school with Ricardo. Appellant did not identify Ricardo in the yearbook.
On cross-examination, Detective Barron acknowledged that appellant had told her that three men were actually involved in the drug deal: Ricardo, Reynaga, and a male called “Diablo.” Appellant talked about Jose Escobedo, a detective from the Whittier Police Department. Appellant said he had worked for Detective Escobedo. Detective Barron never wrote in a report that appellant was an informant for Detective Escobedo. Since appellant was not working for Detective Escobedo on this specific occasion, she did not feel it was important. Appellant said that Detective Escobedo told him to wait and not do anything. Appellant told her there were five or six people in the immediate vicinity when the incident occurred.
II. Defense Evidence
Eva Cota (Cota) is a Dial-A-Ride bus driver in Bell Gardens. At 4:00 p.m. on the day of the shooting she was proceeding north on Eastern Boulevard toward Gotham Street. As she was turning left beside K’s market onto Gotham Street, she saw some men running out of the market. She then saw these same two men on the ground wrestling. She saw another man standing by the phone booth at the corner of K’s Market. He was just standing there looking at the two men. He was a tall man with long, black, wavy hair. All three of the men looked Hispanic. The tall man wore dark pants and a white T-shirt and seemed quite young—approximately 20. He was slender and was probably about six feet in height. She recalled seeing no facial hair. As Cota began driving west on Gotham Street, she heard a gunshot. She did not remember telling Detective Puga that one of the wrestlers had a silver metal handgun in his right hand. She did not remember telling him that the person standing next to the phone booth had a silver metal handgun in his left hand, pointed at the other two individuals on the ground. She did recall testifying that she was not sure if the man standing there was involved or not. She saw only these three people in the immediate area. She had been unable to select anyone from Detective Barron’s six pack.
Rigoberto Polanco (Polanco) is a special agent supervisor with the California Department of Justice, Bureau of Narcotic Enforcement. He was assigned to a task force called L.A. Impact, which is a combination of several police agencies investigating narcotics. He is a group leader for the group that manages informants. The informants sign a contract stating they are only to work under the Bureau’s guidelines and not act on their own. They are not to violate any laws and cannot carry firearms. They are assigned a handler.
Polanco said that appellant was first documented as a confidential informant on May 24, 1999. In May 1999 he was working with Detective Escobedo of the Whittier Police Department. Appellant was deactivated in late 1999 and reactivated in December 2000. He provided some information that resulted in a bust and was paid $600. In March 2001 he was paid $4,500 for additional information that led to a bust. In April 2001 he was paid $1,200 for information that led to a bust. He was deactivated in July 2001. There were no records explaining why someone would be deactivated, but some possible reasons are lack of contact with handlers, not providing information, untruthfulness, getting arrested, and acting on one’s own volition. Being an informant is a dangerous job.
Detective Barron was called by the defense and asked about Reynaga’s unknown friend that Aguilar said had shown up with Reynaga at the tire store. Aguilar told her he did not know who that friend was. Aguilar told Detective Barron that this unknown friend walked back to K’s Market with appellant, Ricardo and Reynaga, followed shortly by Ibarra. On cross-examination, Detective Barron stated that during her first interview with Aguilar on August 14, 2001, Aguilar said that both suspects’ shirts were torn and the suspect who took the right front passenger seat was holding his right side as they ran back to the car.
Appellant testified on his own behalf. He became an informant with Detective Escobedo in 1999 after being arrested for the sale of methamphetamine. He reported to Detective Escobedo once a week and kept him informed on people selling drugs. He agreed with Polanco’s characterization of the contract terms. He was never aware of being deactivated.
Ricardo went to appellant’s house and asked him for a ride to the tire shop, saying he was going to take some money there. They waited for Reynaga to bring the drugs. At one point, appellant said he did not know that the drug transaction was to be that day. Appellant was just giving Ricardo a ride and was not supposed to participate in the transaction. Ricardo was going to buy two kilos of drugs from Reynaga. Appellant first stated that Ricardo was going to pay appellant “according to what he made,” but he later said he was to be paid $400. Appellant said he did not know Ricardo had a gun. Appellant did not call Detective Escobedo because he did not yet have the necessary information. He wanted to verify that Reynaga was, in fact, selling drugs.
Appellant saw the money Ricardo was to use when they were in the truck before walking to the market. Ricardo had $28,000 for two kilos. Because Reynaga only had one kilo, Ricardo counted out $14,000 in front of Reynaga and his friend. Ricardo kept the $14,000 on himself and gave the other $14,000 to appellant to keep.
Reynaga showed up with one of his friends and told Ricardo to give him the money. He would then give Ricardo the drugs. When Ricardo told Reynaga he had to check the drugs first, Reynaga told Ricardo to go to the store. Ricardo, appellant, Reynaga, Reynaga’s friend, and Ibarra all went to the store. Reynaga’s friend was a thin man with slightly long, wavy black hair. He was taller than appellant.
Reynaga opened the door to the market. Appellant entered first, and Reynaga and Ricardo were following along with Reynaga’s friend and Ibarra. Ibarra went only as far as the door. Reynaga went to the cashier’s station, and appellant walked to the middle of the store. Ricardo began arguing with Reynaga’s friend. Ricardo then said to appellant, calling him by his nickname, “Lalo come on, let’s go. I’m not liking this.” Reynaga began screaming “I knew that was going to happen. You brought an informant, you mother fucker.” Earlier Reynaga had asked Ricardo if appellant’s name was Lalo. Reynaga went running out from the cashier’s station and he ran into Ricardo at the entrance. Appellant was later unsure on the stand as to whether Ricardo actually entered the store. He did remember Ricardo arguing with Reynaga’s friends at the entrance and Reynaga running into Ricardo at the entrance. Reynaga was yelling and mad. Appellant never saw any cocaine inside the store, and he never saw guns pulled there.
Appellant felt paralyzed while Ricardo and Reynaga were yelling at each other. He believed Reynaga had been referring to him when he spoke of an informant. Finally appellant went running outside and there he saw Reynaga and Ricardo fighting on the ground and struggling over a gun. Appellant left running and tripped over a plastic bag lying outside of the store. Reynaga, while struggling with Ricardo, picked up the bag, which appellant believed was the cocaine. Appellant kept running. He stopped at the corner before crossing the street and looked back. Reynaga’s friend and Ibarra were there with guns in their hands. When Reynaga’s friends pointed a gun at appellant, he kept running. He heard a shot as he was crossing the street.
Because appellant did not know what to do, he ran to his truck. When appellant got to his truck he stood there for an instant, again not knowing what to do. When he opened his truck, Ricardo appeared, standing next to it in a torn shirt. Ricardo got into the truck, and appellant drove away towards the freeway. Appellant said he had not known that Ricardo brought a gun to the location. Appellant learned Ricardo had a gun when he saw him running. Ricardo told him later that he carried a gun for safety. Appellant then said he did not see Ricardo with a gun when he returned to the car. Ricardo did have a plastic bag that looked like the plastic bag Reynaga had been carrying.
Ricardo took the bag with him when he got out of appellant’s car at appellant’s house. Appellant returned the money he was holding to Ricardo. After the incident, Ricardo and appellant went their separate ways and appellant did not learn anyone had been killed at the market until he saw it on television that night. He tried to call Ricardo, but Ricardo did not answer. Appellant never did ask him what happened. He only saw Ricardo once more, about a year later, in Mexico.
Appellant did not try to call law enforcement after the shooting because he was scared and did not know what to do. He tried to contact Detective Escobedo several times but he did not answer his cell phone, and appellant never talked to him again. When Detective Barron interviewed him after his arrest, appellant told her about his relationship with Detective Escobedo and where he believed the detective worked.
Appellant testified that it was not his intention to rob Reynaga for a kilo of cocaine and he and Ricardo did not discuss robbing Reynaga. Appellant said he spoke to Detective Escobedo and told him he would let him know when he found out who was going to be involved. Detective Escobedo told appellant to let him know as soon as appellant learned who was the person involved, but not to go himself. Appellant did not understand from his contract with L.A. Impact that he could be deactivated if he acted on his own. He thought he could act on his own, engage in a drug deal, and then contact his handler at L.A. Impact and be paid.
Appellant believed there were five people in the area of the store when he ran out: Reynaga, Reynaga’s two friends, Ricardo, and himself. He later said there were six people because one of Reynaga’s friends who had left earlier came back with a gun. He said there were four guns and six people outside the market.
The defense called Detective Benjamin Sotelo, who had interviewed Aguilar twice. Aguilar identified two suspects. Suspect one was a male Hispanic with a light complexion, medium build, approximately five feet four inches in height, and wearing a yellow baseball cap. Suspect two was male Hispanic in his mid-20’s, somewhat heavy-set, with a long curvy nose and a cinnamon-type complexion. Aguilar said suspect two was the driver and wore a blue or black baseball cap. Aguilar said that suspect one was clutching something that appeared to be a bag by his side and appeared to be doubled over when he returned to the area in front of the tire store. Aguilar said he had never seen the men before. The next day, Aguilar admitted having seen the two men before on August 7.
On cross-examination, Detective Sotelo said that Aguilar described suspect two as wearing a button-down, short-sleeve, multi-color shirt and blue dress pants. He had a hickey on the right side of his neck. Suspect one was wearing beige or tan pants. Suspect two helped suspect one get into the passenger door of the car. Suspect two had a torn shirt and red stains that appeared to be blood on his face and the top portion of his shirt.
III. Rebuttal Evidence
Detective Jose Escobedo was assigned to L.A. Impact in August 2001. As appellant’s handler, he had appellant sign the L.A. Impact admonition, which sets out the rules of an informant. Detective Escobedo received no telephone call from appellant around August 13, 2001, regarding a potential drug transaction at K’s Market in Bell Gardens or regarding a Ricardo Mendoza or an Alfredo Reynaga. He received no such phone calls subsequent to August 2001 either.
Detective Escobedo said that appellant was an informant who did not want to testify in court for fear of retaliation. This required extensive surveillance in order to conduct a case. An informant could not engage in a drug transaction without supervision and then be paid for information regarding the transaction. An informant must give the information from start to finish, and a seizure must be the result. The informants were paid based on the amount of narcotics or money seized. L.A. Impact did not expect informants to tell them about drug deals that were going to happen, but rather to set up deals. Informants would find people who were good targets, and the agents would set up a meeting that was observed by investigators.
IV. Surrebuttal Evidence
Detective Barron interviewed Cota. Cota told her she observed two males wrestling in front of K’s market and a third male standing by a phone booth. She said the male on his back was holding a handgun and so was the man near the pay phone. She described the man near the pay phone.
DISCUSSION
I. Sufficiency of the Evidence
A. Summary of Appellant’s Argument
According to appellant, in order to support the second degree murder conviction, the jury had to decide that appellant was either the shooter or an aider and abettor of the shooter. Appellant contends there was no substantial evidence to support either finding.
B. Relevant Authority
“Murder is the unlawful killing of a human being, or a fetus, with malice aforethought. [Citation.] Second degree murder is the unlawful killing of a human being with malice, but without the additional elements (i.e., willfulness, premeditation, and deliberation) that would support a conviction of first degree murder. [Citations.]” (People v. Hansen (1994) 9 Cal.4th 300, 307.) The element of “malice” may be express or implied. Express malice exists “when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature.” (§ 188.) Malice is implied “when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart.” (Ibid.; People v. Hansen, supra, at pp. 307-308.)
“‘Implied malice . . . has both a physical and a mental component. . . . The mental component is the requirement that the defendant “knows that his conduct endangers the life of another and . . . acts with a conscious disregard for life.” [Citation.]’” (People v. Robertson (2004) 34 Cal.4th 156, 165.) The physical component of implied malice requires that defendant deliberately commit an act the natural consequences of which are dangerous to human life. (People v. Watson (1981) 30 Cal.3d 290, 300.) Such an act is one with a high probability of resulting in death. (Ibid.)
“[A]n aider and abettor is chargeable as a principal only to the extent he or she actually knows and shares the full extent of the perpetrator’s specific criminal intent, and actively promotes, encourages, or assists the perpetrator with the intent and purpose of advancing the perpetrator’s successful commission of the target offense. [Citation.] It is not sufficient if the person simply gives assistance with knowledge of the perpetrator’s criminal purpose. Merely giving assistance without sharing the perpetrator’s purpose and intent establishes liability only as an accessory, not as an accomplice. [Citations.]” (People v. Snyder (2003) 112 Cal.App.4th 1200, 1220, fn. omitted.)
C. Proceedings Below
Appellant was charged with one count of murder, and the prosecution’s theory was that of felony murder during the commission of a robbery. Jury instructions were given for that offense and for two lesser included offenses: second degree murder and voluntary manslaughter. With respect to second degree murder, the jury was instructed that “Murder of the second degree is [also] the unlawful killing of a human being when: [¶] 1. The killing resulted from an intentional act, [¶] 2. The natural consequences of the act are dangerous to human life, and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life. [¶] When the killing is the direct result of such an act, it is not necessary to prove that the defendant intended that the act would result in the death of a human being.” (CALJIC No. 8.31.)
During argument, after going through the three elements of second degree murder, the prosecutor stated, “Again, under an implied malice theory to second degree murder you can find the defendant guilty. Again, under the aiding and abetting theory as I talked to you about principals and aiders and abetters as I did just a moment ago, I won’t go into that again. Again, you have to understand that an aider and abetter is guilty for the acts of their co-principals as well, if they are in fact aiding and abetting that co-principal. And again, the killing resulted from an intentional act. Intentional act, again, as Mr. Innes describes and tells you that the defendant’s companion pulled out a gun, pulling out a gun, pointing it at the victim in this case. How do we know specifically with regard to that, the defendant even tells you that he knew that the defendant -- or excuse me, that his companion came when he went on August 13, 2001, that in fact he had a gun with him as he described it to you, for protection or safety reasons. Again, the natural consequences, dangerous to human life. I will tell you I don’t think that I do, Ladies and Gentlemen, because you could use your common sense. Again, you’re not to leave your common sense at the door when you are deciding and judging this case. . . . The natural consequences of an act dangerous to human life. Again, I don’t have to explain to you when you point a loaded gun at someone, the consequences are simply that someone could get shot and killed. The act was deliberately performed with the knowledge of danger or conscious disregard for human life. . . . The person who pulls a gun on someone knows the consequences -- potential consequences if he or she should pull that trigger. That’s second degree murder.”
Defense counsel argued that appellant was not the shooter. She attempted to cast doubt on Ricardo as the shooter and stated that her theory was that the shooter was one of the men who followed Reynaga to the store. She also attempted to cast doubt on a robbery having been attempted. She then told the jury that the prosecutor “talked about second degree murder, and it’s complicated, it’s very complicated.” She went on to explain felony murder and said, “but second degree murder, this is not -- the robbery cannot supply what we call specific intent for second degree murder. So throw the robbery out the window.” She added, “What if Ricardo and Linares just went there for whatever reason, and Ricardo pulls a gun and shoots the guy with the intent to kill him or for whatever reason. It can be second degree. It’s spontaneous and not premeditated or deliberate. At this moment, I can’t drum up an example of how that would happen.” She then told the jury that a voluntary manslaughter is “kind of something you may wish to consider” if the jury believed appellant or Ricardo was the shooter.
After the jury had convicted appellant of second degree murder, the trial court heard appellant’s new trial motion, which asserted that there was no basis for the jury to return a verdict of second degree murder. The trial court stated, “First of all, one who [abets] and aids is not only guilty of the crime aided and abetted but obviously is also liable for the material [sic] and probable consequences of such a crime. . . . So looking at the evidence that the court had in this particular matter, the defendant’s principal had a large sum of money for which to buy drugs. That principal -- this is a person known as Ricardo -- approached the defendant to assist him in purchasing those drugs.” The court went on to say that appellant knew the purpose of the trip, that he knew Ricardo had a gun, and that appellant was hired to drive Ricardo for the purpose of buying drugs. Appellant had previously been involved in drug deals and he was involved in a fight with Reynaga after he had been identified as an informant. He ran out and the victim pursued him and there was an altercation. The principal, Ricardo, saw the fight and shot the victim. Appellant grabbed the bag and he and appellant ran away. “What I’m saying is that there were other facts in the record upon which the jury could find that this was not, per se, a robbery because what was in that bag was never truly identified, but the defendant and Ricardo went to that location for the purpose of purchasing drugs, a very high risk factor. Secondly, the fight between the victim and defendant arose because of the fact that according to the defendant’s own testimony, that he had been identified as an informant, and when he ran out of the store the victim pursued him and got involved in the altercation. So there were other facts upon which the jury could decide that this was an act other than a robbery and that the finding of the jury that this is a second degree murder is certainly adequately covered by the evidence.”
D. Arguments
Appellant’s argument first emphasizes that there was no substantial evidence that appellant was the actual shooter. He points out that according to Innes’s testimony, the shooter was appellant’s companion, Ricardo. He states that Cota’s and Aguilar’s testimony bolster this.
Appellant next argues that appellant cannot have been an aider and abettor of Ricardo. Aiding and abetting requires that “the aider and abettor must share the specific intent of the perpetrator.” (People v. Beeman (1984) 35 Cal.3d 547, 560.) “[A]n aider and abettor will ‘share’ the perpetrator’s specific intent when he or she knows the full extent of the perpetrator’s criminal purpose and gives aid or encouragement with the intent or purpose of facilitating the perpetrator’s commission of the crime.” (Ibid.) Appellant asserts there was no evidence appellant knew Ricardo intended to use his gun other than for self-protection. There was also no evidence that appellant did anything to facilitate or encourage Ricardo to shoot Reynaga.
Furthermore, appellant claims, as a matter of law, the natural and probable consequences theory, as given, could not impose liability for second degree murder. The trial court instructed the jury that appellant was liable for the murder if it found that murder was a natural and probable consequence of aiding and abetting a robbery only, and this would result in a finding of first degree murder. Therefore, if the jury relied on the theory of natural and probable consequences, it was necessarily in relation to a target crime other than robbery. However, the doctrine does not apply to criminal acts that occur when one of the principals departs from the original plan. In this case, the evidence showed that the murder was an improvised decision of Ricardo’s. The fight was not planned in advance, and the shooting was not within the normal range of outcomes that might have been expected if nothing unusual had intervened.
Respondent does not contend that appellant was the shooter or an aider and abettor, but rather argues that substantial evidence supported a finding that appellant directly and actively committed the crime of second degree murder rather than acting as an aider and abettor. Appellant acted deliberately by engaging in the highly volatile crime of drug sales, and the natural consequences of these acts were dangerous to human life. Appellant also acted with knowledge of the danger to, and with conscious disregard for, human life. According to respondent, the natural consequence of any drug transaction is that a shooting might occur in which someone is seriously injured or killed.
Appellant counters that respondent’s assertions that the natural consequences of any drug transaction is that a shooting might occur where someone is seriously injured or killed are unsupported by citations to authority or the record.
E. Sufficient Evidence Supports Second Degree Murder Verdict
We believe sufficient evidence supports appellant’s conviction for second degree murder. Our conclusion parallels somewhat respondent’s argument, but diverges in our analysis of the natural and probable consequences element of second degree murder. First, like respondent, we see appellant as a direct perpetrator in the act that resulted in the death of Reynaga—not as an aider and abettor. We realize that both the trial court and the prosecutor saw appellant’s role as an aider and abettor, although they defined different intentional acts as satisfying the first element of second degree implied malice murder. The prosecutor chose Ricardo’s act of pointing a gun, and the trial court chose participation in a drug deal.
As stated, we conclude the evidence is sufficient to support a verdict that appellant was a direct perpetrator of second degree murder, and we also believe that the prosecutor’s and trial court’s comments that characterized appellant as an aider and abettor do not invalidate this conclusion. The trial court’s findings after the motion for new trial were not heard by the jury and had no effect on the verdict. The prosecutor’s argument regarding appellant’s responsibility for the act of pointing a gun as an aider and abettor was transitory, and the record shows the jury members did not remember it, since they asked for read back of argument. The arguments were not given in printed form to the jury, unlike the jury instructions, and the record shows that the jury relied on the written instructions. One of these instructions told the jury that statements made by the attorneys were not evidence, and we presume the jurors followed the trial court’s instructions, especially after being reminded of this fact. (People v. Mickey (1991) 54 Cal.3d 612, 689, fn. 17.)
The act appellant committed was the sale of narcotics under the particular circumstances revealed by the evidence, which reveal that the natural and probable consequences of this act were dangerous to human life. As the jury was instructed, principals in the commission of a crime include direct perpetrators and those who aid and abet. (CALJIC No. 3.00.) As the court pointed out in People v. Felton (2004) 122 Cal.App.4th 260, 268, “‘[w]hen two or more persons commit a crime together, both may act in part as the actual perpetrator and in part as the aider and abettor of the other, who also acts in part as an actual perpetrator.’” In other words, a defendant can be a coperpetrator of a crime without sharing his or her coperpetrator’s intent, such as would be required of an aider and abettor. (Id. at p. 269.) The evidence clearly shows that appellant was one of the direct perpetrators of the drug transaction that was to take place between Reynaga and Ricardo. Although appellant attempted to convince the jury that he was only accompanying Ricardo to gain information to sell as an informant, the jury clearly disbelieved this testimony.
Whether the natural consequences of this act, the narcotics deal, were dangerous to human life and whether appellant performed the act with knowledge of the danger to, and with conscious disregard for, human life are the crucial issues in this case. As explained in People v. Nieto Benitez (1992) 4 Cal.4th 91 (Nieto Benitez), in the case of the felony-murder rule, we look to the underlying felony in the abstract to determine if that felony was so inherently dangerous that malice can be attributed to the defendant without reference to the particular facts of the case. (Id. at p. 106.) In fact, for certain enumerated felonies considered inherently dangerous to human life, the felony-murder rule makes irrelevant any evidence of actual malice or its absence. (Ibid.) On the other hand, when a murder committed with implied malice is alleged, the prosecution must demonstrate that the defendant “in fact acted with malice.” (Ibid.)
Respondent appears to argue that “the highly volatile crime of drug sales” per se satisfies the requirement for an intentional act, the natural consequences of which are dangerous to human life. However, “[w]hether a defendant’s underlying acts are inherently dangerous in the abstract is not dispositive in the jury’s determination as to whether a defendant acted with malice.” (Nieto Benitez, supra, 4 Cal.4th at p. 107.)
As we stated previously, implied malice has a physical and a mental component. The physical component is satisfied by the performance of an act whose natural consequences are dangerous to life. (Id. at pp. 106-107.) Although drug transactions in general may not qualify for classification as acts whose natural consequences are dangerous to life, “[t]he very nature of implied malice . . . invites consideration of the circumstances preceding the fatal act.” (Id. at p. 107.) Any act relates to the context in which it was committed. (Ibid.)
In the instant case, appellant drove Ricardo for the purpose of engaging in a drug deal. Ricardo was carrying a gun and the drug transaction with Reynaga involved a large sum of money. The dangers involved in drug transactions need no elaboration. In this instance, appellant himself was a factor that heightened the risks. Appellant’s history as an informant served only to increase the danger of this particular situation. Polanco testified that it was a dangerous job to be an informant because of involvement with people engaged in narcotics trafficking. It is a perilous business in which many people carry firearms. He stated that danger arises because many people engage in deals at one point, but on the next occasion plan to steal the drugs or the money. Detective Escobedo testified that acting as an informant was dangerous, and one could get killed being an informant.
The mental component of implied malice calls for the act to be deliberately performed by someone who knows his or her conduct endangers the life of another and acts with conscious disregard for that life. (Nieto Benitez, supra, 4 Cal.4th at pp. 106-107.) Appellant deliberately performed the act of engaging in this drug transaction knowing Ricardo was armed. Appellant was well acquainted with the dangers involved in drug transactions in general, and in drug transactions with a current or past informant present in particular. We therefore conclude that there were sufficient facts to support a finding of implied malice by the jury.
The fact that drug transactions may not rise to the level of an inherently dangerous felony for the purposes of the felony murder rule is of no moment. In People v. Satchell (1971) 6 Cal.3d 28, for example, the court stated that “by refusing to permit application of the felony-murder doctrine to the felonies here in question [possession of a concealable firearm by a felon and possession of a sawed-off shotgun], does not thereby insulate from murder liability all those who kill while engaged in the commission of such felonies. Under well-settled principles of criminal liability a person who kills—whether or not he is engaged in an independent felony at the time—is guilty of murder if he acts with malice aforethought.” (Id. at p. 43.)
Similarly, in People v. Lopez (1971) 6 Cal.3d 45, the court held that the crime of escape in violation of section 4532 was not an inherently dangerous felony and was not capable of supporting a second degree felony-murder instruction. (Id. at pp. 47, 49.) In that case, Lopez and three other prisoners escaped from the county jail without detection. (Id. at p. 48.) He and another inmate, Galindo hid in a shed near a house. Galindo broke into the house and assaulted an elderly couple. The elderly man died of his wounds. (Ibid.) The court concluded that the offense of escape, viewed in the abstract, was not a felony inherently dangerous to human life. (Id. at p. 51.) The court pointed out, however, that the prosecution could still show that the fatal act was done with malice aforethought and was, therefore, murder. (Id. at p. 53.) Likewise, in People v. Velasquez (1975) 53 Cal.App.3d 547, the court found that the defendant, who had successfully moved for dismissal under section 995, could properly be tried for murder, since there was sufficient proof of malice aforethought. (People v. Velasquez, supra, at p. 553.) In reversing the trial court’s ruling, the court found that the defendant’s conduct in initiating a fight with two police officers might establish the requisite implied malice to hold him responsible for the murder of his brother, who was shot by one of the officers after he entered into the fight and refused to desist. (Id. at pp. 551-552, 554.)
Although the jury apparently rejected the notion that appellant and Ricardo had planned to rob Reynaga, appellant himself admitted that a fairly large drug deal was to take place in K’s market. Appellant claimed that he planned to betray those involved. There was evidence that something occurred inside the market that caused Ricardo and appellant to flee from the scene with Reynaga in pursuit and with appellant carrying a package that looked like the package Reynaga had been holding. The attempted flight culminated in a violent struggle that was ended by a gunshot that killed Reynaga. Under these circumstances, the jury could reasonably find that the elements of second degree murder, as set out in CALJIC No. 8.31, were met. We therefore reject appellant’s argument.
II. New Trial Motion; Insufficient Instruction
A. Argument
Appellant contends that the trial court erred when it failed to properly instruct the jury with the target crimes. He asserts that the court has a sua sponte duty to identify and describe the target offense the defendant is alleged to have aided and abetted when the prosecutor has elected to rely on the natural and probable consequences theory of accomplice liability. Citing People v. Prettyman (1996) 14 Cal.4th 248, 273 (Prettyman), appellant argues that if there is a reasonable likelihood that the failure to identify the target offenses caused the jury to misapply the natural and probable consequences doctrine, then there is federal constitutional error.
B. No Error
Given our conclusions in the preceding section, we find appellant’s argument to be without merit. In Prettyman, the court explained that “[i]t sometimes happens that an accomplice assists or encourages a confederate to commit one crime, and the confederate commits another, more serious crime (the nontarget offense). Whether the accomplice may be held responsible for that nontarget offense turns not only upon a consideration of the general principles of accomplice liability . . ., but also upon a consideration of the ‘natural and probable consequences’ doctrine . . . .” (Prettyman, supra, 14 Cal.4th at pp. 259–260.) Under the natural and probable consequences doctrine, “a defendant may be held criminally responsible as an accomplice not only for the crime he or she intended to aid and abet (the target crime), but also for any other crime that is the ‘natural and probable consequence’ of the target crime.” (Id. at p. 261.) And, “when the prosecution relies on the ‘natural and probable consequences’ doctrine to hold a defendant liable as an aider and abettor, the trial court must, on its own initiative, identify and describe for the jury any target offense allegedly aided and abetted . . . .” (Id. at p. 268.)
Thus we see that appellant’s argument is based on the assumption that he acted as an aider and abettor rather than a direct perpetrator. Since we have found that appellant acted as a direct perpetrator of second degree implied malice murder rather than as an aider and abettor of some target offense, there was no unidentified target offense. Therefore, the trial court did not err by not identifying the target offense in a jury instruction and no constitutional violations occurred.
Appellant also claims that the trial court erred when it denied appellant’s new trial motion, which asserted that the verdict was contrary to the evidence. According to the motion, there was no legal theory and there were no facts to support a second degree implied murder verdict as to appellant as the nonshooter.
Appellant points out that the trial court stated that “one who [abets] and aids is not only guilty of the crime aided and abetted but obviously is also liable for the material [sic] and probable consequences of such a crime . . . .” The court then stated that “there were other facts upon which the jury could decide that this was an act other than a robbery and that the finding of the jury that this is second degree murder is certainly adequately covered by the evidence.”
Apart from the court’s reference to aiding and abetting, which was made at the beginning of its response to the motion, the court’s ruling on the motion parallels our view of the evidence. It is well established that a finding of the court that is correct under any theory of law pertinent to the case is upheld regardless of the considerations that led the court to its conclusion. (People v. Zapien (1993) 4 Cal.4th 929, 976.)
III. Other Issues Related to Jury Instruction
A. Proceedings Below
In initially instructing the jury, the trial court, without objection, included the trio of instructions defining “willfully,” “knowingly,” and “malice” and “maliciously.” (CALJIC Nos. 1.20, 1.21, and 1.22.) The trial court read CALJIC No. 1.22 as follows: “The words ‘malice’ and ‘maliciously’ mean[] a wish to vex, defraud, annoy or injure another person or an intent to do a wrongful act.”
After the jury had begun deliberations it sent a request to the trial court asking for more clarification on second degree murder and manslaughter. It also requested read back of Innes’s testimony regarding the struggle and shooting, Cota’s testimony regarding what she saw while turning, and appellant’s testimony regarding his awareness of what was in the package. In response to the request for clarification on the lesser included offenses, the trial court referred the jury to the jury instructions.
On the second full day of deliberations, the jury notified the trial court that it had reached “‘an impasse in the voting.’” The trial court’s investigation into the issue with the jurors revealed that the jurors had reached a resolution of the felony murder count, but two subsequent ballots on the “remaining counts” had led to results of 11-to-1. Because the trial judge at this stage was substituting for the judge that had actually tried the case, defense counsel explained to the court at sidebar that there was one charge with two lesser included offenses. Defense counsel stated that appellant had a right to the verdict on the charged offense if the jury was “hanging on the lessers.” Upon inquiry, the trial court ascertained that some of the jurors were not sure if further deliberation would help, and two believed it would. The court therefore sent the jurors back to the jury room to deliberate after having the verdict on count 1 sealed.
Later, the jury asked for a reading of the closing arguments from both attorneys and for clarification of the term “intentional act.” The trial court stated for the record that, “the court has had a discussion with counsel outside the presence of the jury and in chambers regarding the latest question that has come out from the jury. It actually encompassed three questions and the court has gone over these three questions, and has formulated its response which includes informing them that they cannot have closing argument reread. They can have any other testimony read, referring them to two instructions that were previously given, 1.20 and 8.31, and reading them and giving them 8.11 which was not yet given . . . .”
The trial court called in the jury and informed them that it could not give them a read back of closing argument, since anything said by the attorneys is not evidence. In response to the request for clarification of intentional act, the court stated, “The response is I refer you to jury instructions 1.20 which was given yesterday, 8.31 which was also given yesterday, and a new instruction 8.11. This is one that you have not seen. I’m going to read it to you now. You will have it in written form in the jury room for further deliberations.” The court then read CALJIC No. 8.11. When the jury returned on the following morning, it reached a verdict of guilty of second degree murder.
The trial court read CALJIC No. 8.11 as follows: “Malice may be either express or implied. Malice is express when there is manifested an intention unlawfully to kill a human being. Malice is implied when: One. The killing resulted from an intentional act; Two. The natural consequences of the act are dangerous to human life; and Three. The act was deliberately performed with a conscious disregard for human life. When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought. The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. The word ‘aforethought’ does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act.”
B. Two Instructions Regarding Malice
1. Argument
Appellant first claims the trial court erred when it instructed the jury with CALJIC No. 1.22, which gives the common law definition of “malice.” Appellant argues that the trial court further erred when it instructed the jury during deliberations on the definition of “malice aforethought” as contained in CALJIC No. 8.11. As a result the jury had two definitions of malice on the final day of deliberations, one correct and one incorrect. In this way, the trial court lessened the People’s burden of proof by permitting the jury to find appellant guilty of murder if it found that he or Ricardo acted under the broad definition of malice in CALJIC No. 1.22 rather than the narrow definition of malice aforethought. Therefore the error denied appellant his constitutional right to due process of law and a fair trial.
Appellant maintains that the error was not harmless, since it cannot be shown that the jury did not determine the existence of malice under the incorrect definition. CALJIC No. 8.11 was given to the jury only on the third day of deliberations in response to the jury’s request for clarification of the phrase “intentional act.” The court’s reading of CALJIC No. 8.11 was not responsive to the jury query, since it does not define “intentional act.” Therefore, the jury may have not given the new definition of “malice aforethought” any consideration at all.
According to appellant, if the jury had determined that appellant lacked malice aforethought it may very well have acquitted appellant of second degree murder and voluntary manslaughter because neither crime fit the facts of this case. Appellant contends that it cannot be shown beyond a reasonable doubt that the error complained of did not contribute to the verdict, and appellant’s conviction must be reversed.
2. Relevant Authority
In criminal cases, the trial court has the duty to ensure the jury is adequately instructed on the applicable law to the extent necessary to allow it to decide the case. (People v. Wims (1995) 10 Cal.4th 293, 303; People v. Flannel (1979) 25 Cal.3d 668, 680-681.) An instruction can only be found to be ambiguous or misleading if, in the context of the entire charge, there is a reasonable likelihood that the jury misconstrued or misapplied its words. (People v. Frye (1998) 18 Cal.4th 894, 957.)
3. No Error or Constitutional Violation
With respect to the reading of both malice definitions, courts have held that, although CALJIC No. 1.22 should not be given in a murder case, the error is harmless if CALJIC No. 8.22 is given also. (See, e.g., People v. St. Martin (1970) 1 Cal.3d 524, 536; People v. Shade (1986) 185 Cal.App.3d 711, 715; People v. Price (1965) 63 Cal.2d 370, 374; People v. Chavez (1951) 37 Cal.2d 656, 666-667; People v. Harris (1985) 175 Cal.App.3d 944, 956.) As noted in People v. Shade, “The CALJIC use note specifically states this instruction should not be given in a murder trial.” (People v. Shade, supra, at p. 714.) Assuming error, we conclude that it was harmless.
CALJIC No. 8.11 was given in this case at a time when the jury was considering whether to find appellant guilty of second degree murder or voluntary manslaughter. Therefore, the jury would have understood that the definition of malice contained in CALJIC No. 8.11 was the one they must consider in deciding on the lesser included offenses. As stated in People v. Shade, “Although it was error for the court to have instructed on the basis of CALJIC No. 1.22, the error was harmless when the court also correctly instructed on malice aforethought as defined in [Penal Code] section 188 and embodied in CALJIC No. 8.11. [Citations.] This is so because, in these circumstances, reversal is required only when the reviewing court cannot determine from the record on which theory the verdict rested. [Citation.]” (People v. Shade, supra, 185 Cal.App.3d at p. 715; see also People v. Chavez, supra, 37 Cal.2d at pp. 666-667.) In this case, given the context of the reading of CALJIC No. 8.11, it is clear the jury used the correct definition of malice contained in this instruction and not the broad definition of malice as an intent to vex, annoy, or injure.
Furthermore the jury had already received the instruction on implied malice murder, CALJIC No. 8.31, which parallels CALJIC No. 8.11. Therefore, it was not reasonably likely the jury misunderstood the elements of the offense of implied malice murder. (See People v. Shade, supra, 185 Cal.App.3d at p. 715.) We conclude it is not reasonably probable that a more favorable result would have been reached absent the complained of error. (People v. Flood (1998) 18 Cal.4th 470, 487, 490.)
C. Alleged Error in Responding to Jury Queries in General
1. Argument
Appellant complains that instead of addressing the jury’s request for clarification of “intentional act,” the court referred the jury to CALJIC No. 1.20, which defines “willfully;” gave the jury CALJIC No. 8.11 (the definition of malice aforethought); and referred the jury to the already given instruction on second degree murder (CALJIC NO. 8.31). According to appellant, the trial court failed to alleviate the jury’s confusion and only confused matters further when it gave the definition of malice aforethought in response to a request for clarification of “intentional act” without any explanation of why it was giving that instruction.
CALJIC No. 1.20 was read as follows: “The word ‘willfully’ when applied to the intent with which an act is done or omitted means with a purpose or willingness to commit the act or make the omission in question.”
Appellant claims that the trial court’s response prejudiced him, and the instructional error implicates his federal constitutional right to trial by jury and due process of law. The jury’s request for read back of closing arguments suggests it was seeking an explanation of how voluntary manslaughter and second degree murder related to the facts of this case. Appellant contends it is reasonably probable appellant would have had a more favorable result had the jury been properly assisted.
2. Relevant Authority
Section 1138 provides: “After the jury have retired for deliberation, if there be any disagreement between them as to the testimony, or if they desire to be informed on any point of law arising in the case, they must require the officer to conduct them into court. Upon being brought into court, the information required must be given in the presence of, or after notice to, the prosecuting attorney, and the defendant or his counsel, or after they have been called.”
The trial court has the primary duty to help the jury understand the legal principles it is asked to apply. (People v. Thompkins (1987) 195 Cal.App.3d 244, 250-251.) The trial judge is not obligated to repeat the words chosen by the CALJIC committee, however helpful they may be. (People v. Runnion (1994) 30 Cal.App.4th 852, 858.) “[The trial court] must at least consider how it can best aid the jury. It should decide as to each jury question whether further explanation is desirable, or whether it should merely reiterate the instructions already given. . . . [¶] . . . A violation of section 1138 does not warrant reversal unless prejudice is shown. [Citation.]” (People v. Beardslee (1991) 53 Cal.3d 68, 97.)
“In reviewing a claim of error in jury instructions in a criminal case, this court must first consider the jury instructions as a whole to determine whether error has been committed. [Citations.] We may not judge a single jury instruction in artificial isolation, but must view it in the context of the charge and the entire trial record. [Citation.]” (People v. Moore (1996) 44 Cal.App.4th 1323, 1330-1331.)
Although a violation of the statute is reviewed according to the standard set forth in People v. Watson (1956) 46 Cal.2d 818, 836, a violation of appellant’s federal constitutional right to a fair trial is reviewed according to the standard set forth in Chapman v. California (1967) 386 U.S. 18, 24. (People v. Robinson (2005) 37 Cal.4th 592, 635-636.)
3. No Error or Constitutional Violation
We believe the trial court adequately answered the jury queries, and appellant was not prejudiced by the responses. Although there is no record of the in-chambers discussions regarding the responses, there is also no record of any objection by the defense to the proposed responses. Therefore, any claim of error has been waived. (See People v. Rodrigues (1994) 8 Cal.4th 1060, 1193.)
In any event, although the trial court clearly has a duty to help the jury understand the legal principles it is asked to apply, “[t]his does not mean the court must always elaborate on the standard instructions. Where the original instructions are themselves full and complete, the court has discretion under [Penal Code] section 1138[] to determine what additional explanations are sufficient to satisfy the jury’s request for information. [Citation.] Indeed, comments diverging from the standard are often risky. [Citation.]” (People v. Beardslee, supra, 53 Cal.3d at p. 97.)
The trial court here properly referred the jury to the original instructions defining second degree murder and voluntary manslaughter when they requested clarification of the two crimes. The jury had been instructed with CALJIC No. 8.31, which defined second degree murder, CALJIC No. 8.37, which defined manslaughter, and CALJIC No. 8.40, which defined voluntary manslaughter in particular. Finally, the trial court read CALJIC No. 8.50, which explained the distinction between murder other than felony murder and manslaughter. These instructions were full and complete, and no more was required or prudent. (People v. Beardslee, supra, 53 Cal.3d at p. 97.) The reading of special instructions may lead to greater confusion or the danger of misleading the jury. (People v. Briscoe (2001) 92 Cal.App.4th 568, 589.)
This is not a case where the trial court “figuratively [threw] up its hands” and indicated it could not help the jury. (People v. Beardslee, supra, 53 Cal.3d at p. 97.) In seeking to define “intentional act,” the trial court logically had recourse to the definition of “willfully,” which correctly states that an intentional act indicates a purpose and willingness to commit that act. The trial court properly focused on the “intentional” part of the phrase rather than defining the “act.” Furthermore, the instruction served to make clear to the jury that the word intentional in this context had no “special or unique legal meaning and should be construed as it would be in everyday language.” (Nieto Benitez, supra, 4 Cal.4th at pp. 100-101.)
Appellant apparently would have had the court define “intentional act” as the trial court did in the case of Nieto Benitez. When the jury asked the trial court in that case to define the term “intentional act” as used in CALJIC No. 8.31, the trial court informed the jury that “‘the pulling of a handgun in the manner described and/or the shooting of the handgun in the manner described are possible acts for your consideration. . . .’” (Nieto-Benitez, supra, 4 Cal.4th at p. 101.) We believe the trial court in the instant case was properly cautious when it avoided defining the specific act for the jury. It is understandable that a judge unfamiliar with the facts of the case, called in to help a confused jury, would be as circumspect as possible in responding to the jury’s questions. (See People v. Beardslee, supra, 53 Cal.3d at p. 97.) Furthermore, CALJIC No. 8.31 really needs no further amplification, since the concept therein described is not complex. In addition, had the trial court gone so far as to offer the jury specific acts to choose from appellant would undoubtedly argue that the trial court gave an argumentative instruction. The California Supreme Court suggested in Nieto Benitez that requiring a trial court to specify and to define an intentional act that is the predicate for implied malice murder invades the province of the jury. (Nieto Benitez, supra, at p. 105, fn. 9.) Finally, the trial court correctly read CALJIC No. 8.11, the definition of malice aforethought, since it is this definition of malice that applies in an implied malice murder case.
Finally, we conclude no prejudice resulted from any alleged misdirection of the jury. The concepts were correctly and adequately explained to the jury, and where the jury was referred back to the original instructions, the information contained therein was an adequate basis on which to reach a verdict of second degree murder based on implied malice as we have discussed in the first section of this opinion. It is not reasonably probable that a result more favorable to appellant would have been reached in the absence of the errors he alleges, and we find the instructional errors he alleges to be harmless beyond a reasonable doubt. (Chapman v. California, supra, 386 U.S. at p. 24; People v. Watson, supra, 46 Cal.2d at p. 836.)
D. Cumulative Error
1. Argument
Appellant contends that the cumulative effect of the instructional errors is an additional ground for reversal, since the number of errors increases the level of prejudice. Appellant asserts that this was a close case and, absent the cumulative effect of all the errors he discussed, it was reasonably probable that appellant would have had a more favorable outcome.
2. No Cumulative Error
We find no merit in appellant’s cumulative error argument. Our review of the record assures us that appellant received due process and a fair trial. (See People v. Ashmus (1991) 54 Cal.3d 932, 1006.) Whether considered individually or for their cumulative effect, any of the errors alleged did not affect the trial process, deprive appellant of his constitutional rights, or otherwise accrue to his detriment. (People v. Sanders (1995) 11 Cal.4th 475, 565; People v. Cudjo (1993) 6 Cal.4th 585, 637.) As the California Supreme Court has stated, “A defendant is entitled to a fair trial, not a perfect one.” (People v. Mincey (1992) 2 Cal.4th 408, 454.) There has been no showing of cumulative prejudicial error of a degree sufficient to permit reversal.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, Acting P. J., ASHMANN-GERST, J.