People v. Rocha CA4/1

Filed 9/16/14 P. v. Rocha CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE, D062907

Plaintiff and Respondent,

v. (Super. Ct. No. SCN289751)

JUAN ROCHA,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of San Diego County,

Runston G. Maino, Judge. Affirmed.

Carl Fabian, under appointment by the Court of Appeal, for Defendant and

Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Peter Quon, Jr., and Raquel M.

Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
 Juan Rocha appeals a judgment following his jury conviction of one count of

second degree murder (Pen. Code, § 187, subd. (a))1 with a true finding that he

committed the murder for the benefit of a criminal street gang (§ 186.22, subd. (b)(1)).

The prosecution's theory at trial was that the murder was the natural and probable

consequence of Rocha's commission of the uncharged target offenses of assault and/or

challenge to fight in public. On appeal, Rocha contends: (1) the evidence is insufficient

to support his conviction of second degree murder; (2) the trial court prejudicially erred

by not instructing sua sponte on involuntary manslaughter as a lesser included offense of

murder; (3) the evidence is insufficient to show his gang had as a primary activity any of

the offenses listed in section 186.22, subdivision (e); (4) the trial court erred in instructing

on the elements of the gang allegation; and (5) the trial court erred by not instructing on

all of the elements of the uncharged target offenses that were the basis for the murder

charge. We find any error in failing to instruct on involuntary manslaughter was

harmless. We reject Rocha's remaining contentions and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

On March 25, 2011, Reuben Jones and Devon Allen, both African-American,

were drinking beer at a restaurant and bar in Carlsbad. They later met Eric Smith and

two others there. After drinking several beers, Jones, Allen and Smith left and walked

toward their cars, which were parked on a nearby street. To get to their cars, they went

through a hedge. Smith went first, then Allen, and finally Jones.

1 All statutory references are to the Penal Code.
2
 After Jones passed through the hedge, he saw two men, Rocha and Pedro Avalos,

on the sidewalk on the other side of the hedge. In a nonthreatening manner, Rocha asked

Jones for a lighter and Jones handed him his lighter. Rocha then asked him whether he

knew where he was. Based on his past experience, Jones believed that question was

gang-related, but the question did not initially bother him. Jones replied, "Yeah,

Carlsbad," smirking because he knew he was in the City of Carlsbad. Rocha then tilted

his head and shoulders back, inflated his chest, and responded, "Carlos Malos."

Allen then walked back to where Jones was and asked: "What's poppin [sic]? Is

there a problem?" Avalos replied to Allen, "What's up, homie," opened a small knife

with a clicking sound, bounced on his feet like a boxer, and then stabbed Allen in the

abdomen with the knife. Jones immediately punched Rocha and then Rocha and Avalos

ran away from the scene. Allen died from the stab wound later that night.

On March 29, Rocha was arrested in Indianapolis, Indiana. On March 31,

Carlsbad Police Detective Bryan Hargett and Sergeant Mickey Williams interviewed

Rocha in Indianapolis. Rocha admitted he was present at the scene of the stabbing and

was punched in the face by Jones. He denied seeing the stabbing, but eventually

identified Avalos as the person who stabbed Allen. After he (Rocha) was "sucker

punched" by Jones, he saw Allen lift his shirt and then realized Allen had been stabbed.

Rocha said he "freaked out" and ran from the scene. Rocha denied having a knife that

night and, prior to the stabbing, had asked Jones to "check" Allen and get him away.

Rocha said he did not do anything to Allen and "never had any intentions." He admitted

he burned his clothes after the incident. An information charged Rocha with one count of

3
murder and alleged the murder was committed for the benefit of a criminal street gang

within the meaning of section 186.22, subdivision (b)(1).

Prosecution's Case-in-Chief

At trial, the prosecution presented the testimony of Jones and other witnesses

substantially as described above. Detective Hargett testified as the prosecution's gang

expert. Since 2006, Hargett had personally investigated 95 percent of Carlsbad's violent

gang cases. The Carlsbad gang, known as "Varrio Carlsbad," "Varrios Carlsbad Locos,"

and "Carlos Malos," consists of Hispanic males from 12 years old through men in their

50's, although the age of the core group probably goes up to about 25 years old. The

gang had chosen to spell "barrio," the Spanish word for neighborhood, with a "v" instead

of a "b."

The Carlsbad gang had historically been involved in narcotic sales, assaults, hate

crimes, weapons purchases, weapons sales, thefts, and auto thefts. Gang members

committed those crimes in the barrio to "protect," or control, the neighborhood. Since

2006, there had been an increase in gang crimes targeting African-Americans and others

who enter the barrio. Hargett testified that since 2006, members of the gang had

consistently engaged in a pattern of criminal activity. Hargett described "hit ups," which

included phrases such as, "Where you from," "Do you bang," "Do you know where you

are at," and "This is Carlsbad." Most "hit ups" occur with rival gang members and there

was no good answer to such questions. In his training and experience, when a "hit up"

occurs in close proximity to the other person, it likely turns into a violent encounter.

4
 Hargett testified that in 2006, while investigating another case, he first met Rocha,

then 14 or 15 years old and not considered a gang member at that time. Rocha's father

admitted at that time he was the Carlsbad gang's "shot caller." Subsequently, Rocha

became identified as a documented Carlsbad gang member, satisfying two or three of the

Department of Justice's criteria. In December 2010, Rocha was contacted wearing gang

attire (e.g., Chargers football clothing, a belt buckle with the letter "C," and socks pulled

up to his knees). Rocha had also been seen with other gang members, including Avalos.

He also had a tattoo of an Aztec serpent and a tattoo on the middle finger of his left hand,

consisting of three dots, which meant "mi vida loca" (i.e., "my crazy life") and was

common in Hispanic street gang culture. Based on those factors and his belief that Rocha

claimed to be a Carlsbad gang member during his interview, Hargett testified he had no

doubt Rocha was a devout Carlsbad gang member. Rocha did not have any

documentation of violent crimes or harassment of African-Americans.

Hargett also testified regarding prior crimes committed by members of the

Carlsbad gang. In July 2006, members of the Carlsbad gang confronted Ivan Pena and

Johnny Pliego, who were passing through the barrio on their way home from school.

Pliego was punched and pulled off his bicycle while gang members repeatedly yelled,

"Carlsbad," and "Carlos Malos." One gang member stated: "Carlsbad bitch, thanks for

the bike." Pliego suffered a fractured skull, a lacerated face, and chipped teeth. Three

Carlsbad gang members (Raul Gonzales, Hector Garcia, and Angel Martinez) were

arrested for the attack. Thereafter, in March 2007, when Pliego was walking home from

school, gang members asked him, "Do you bang?" After Pliego denied gang

5
membership, one of the gang members stated: "He got paper on me," apparently referring

to Pliego's court testimony against him for the July 2006 attack and his resulting

probation or parole.

In November 2006, the Carlsbad gang attacked Bryce Smith, an African-American

who lived in the barrio and attended the local high school. While Smith was walking

home from school, gang members pushed him to the ground and repeatedly punched and

kicked him. While doing so, one gang member stated, "This is C-town, bitch . . . . This

is what happens when niggers try to roll C-town. . . . Carlos Malos, bitch. This is how

we handle shit in Carlsbad." Avalos and several other Carlsbad gang members were later

arrested for the attack.

In November 2007, Joe Torres and his friends drove into the Carlsbad barrio in

response to a Craigslist advertisement for the sale of a weight bench. "[S]ome young

gang members" threw rocks at their vehicle and, when they stopped their vehicle, the

young gang members confronted them. As Torres and his friends called police, some

older gang members approached and asked them, "Why are you fucking with the little

homies?" During the subsequent fight, Torres was stabbed multiple times in the front and

back of his torso. He was "life-flighted" to a hospital and survived the attack. Two

Carlsbad gang members (Jesus Hernandez and Edgar Zepeda) were convicted for the

attack on Torres.

In October 2008, a Carlsbad gang member (Juan Matias) approached Ms.

Norwood, an African-American who lives in the barrio, in front of her house, called her a

"nigger," and made a stabbing motion toward her with a small folding knife. After the

6
incident, Matias told his arresting officer, "Fuck that nigger bitch. I will kill that nigger

bitch." Hargett testified that the Norwood family had been targeted by the Carlsbad gang

for several years because of their African-American race.

In 2008, Eric Allen, an African-American, was driving through the Carlsbad barrio

when "some guys" signaled for him to slow down. Allen stopped his car, got out, and

apologized, stating: "Hey, I know I am in the hood. Sorry. No disrespect." A Carlsbad

gang member (Christian Gill) stabbed Allen once in the arm and once in the gut with a

small, pocket-style folding knife with a blade about two and one-half inches long.

According to Hargett, with "about two feet of his intestines hanging out through his stab

wound," Allen was able to get back into his car and drive to a nearby house from which

he was then "life-flighted" to a hospital. Allen survived and Gill was convicted for

stabbing him.

In February 2009, a group of people from Encinitas drove to a house party in

Carlsbad. Their car had a sticker from an Encinitas surf shop with only the letter "E."

Hargett testified that an Encinitas gang used the letter "E" as its sign and symbol.

Outside the party house, Carlsbad gang members approached the Encinitas group (none

of whom were gang members) and one gang member asked them, "What's up with that

Encinitas sticker?" The group replied that they had come only to party and not for

trouble. A Carlsbad gang member responded: "Fuck that. You are from Encinitas." A

witness heard the clicking of knives being opened and a fight began. A majority of the

Carlsbad gang members had knives. During the fight, a Carlsbad gang member (Raul

7
Gonzalez) pulled out a gun and shot at Alex Lopez, who was with the Encinitas group.

The bullet mostly missed Lopez, but shot off his eyelid.

In June 2010, a Carlsbad gang member (Mizael Matias, Juan Matias's brother)

walked by the Norwood family's home. Ms. Norwood, her son, and her daughter were

outside. He yelled, "Fuck you, nigger," and threw a rock and piece of fruit at them. Later

that month, Frederick Baker, Norwood's son, and an African-American friend were

approached by several Carlsbad gang members in an alley. One gang member asked,

"What's up, nigger?" Another gang member opened a small pocket knife and made a

stabbing motion toward Baker. Baker dodged the knife, punched his attacker in the face,

and escaped the attack.

Defense Case

Rocha did not testify in his defense. He presented two character witnesses and a

gang expert witness. Apolinar Echeverria, the gang expert, testified that it was not a

good idea to be known as a "snitch" or an informant in certain neighborhoods and gang

communities. Individuals and their families could suffer retaliation for snitching.

Echeverria also considered the Department of Justice's standards for documenting gang

members to be over-inclusive and gave an example involving tattoos of three dots and the

Aztec serpent, which represented Mexican culture and were not necessarily gang tattoos.

He testified that Hispanic street gangs did not like African-Americans living in the barrio.

He also testified that gang members had an incentive to commit violent crimes, because

they would then receive more respect in the gang.

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 Prosecution's Rebuttal

In rebuttal, the prosecution presented the testimony of Allaina Mahone, who

worked at the restaurant and bar involved in this case. She had seen Rocha a few times

there before and knew him as "Buddy." Although he was always nice to her, she noticed

a different "vibe" from him when other men were around. He only had that "vibe" when

with his friends, whom she described as "kind of like gang bangers." She described

Rocha's "vibe" as being more "confrontational" and called it "testing." However, she had

never seen him fight there and had never heard of him fighting anyone outside.

Verdict

The jury found Rocha guilty of second degree murder (§ 187, subd. (a)) and found

true the gang enhancement allegation (§ 186.22, subd. (b)(1)). The trial court sentenced

Rocha to an indeterminate term of 15 years to life for his murder conviction and stayed

imposition of the alternative gang enhancement sentence. Rocha timely filed a notice of

appeal.

DISCUSSION

I

SUBSTANTIAL EVIDENCE TO SUPPORT SECOND
DEGREE MURDER CONVICTION

Rocha contends the evidence is insufficient to support his conviction for second

degree murder. He argues the evidence is insufficient to support a finding that murder

was a natural and probable consequence of his commission of assault and/or challenge to

fight in public in the circumstances of this case.

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 A

When a defendant challenges his or her conviction for insufficient evidence on

appeal, we apply the substantial evidence standard of review. "Under this standard, the

court 'must review the whole record in the light most favorable to the judgment below to

determine whether it discloses substantial evidence--that is, evidence which is

reasonable, credible, and of solid value--such that a reasonable trier of fact could find the

defendant guilty beyond a reasonable doubt.' [Citations.] The focus of the substantial

evidence test is on the whole record of evidence presented to the trier of fact, rather than

on ' "isolated bits of evidence." ' " (People v. Cuevas (1995) 12 Cal.4th 252, 260-261,

italics added in Cuevas.) We "must presume in support of the judgment the existence of

every fact the trier could reasonably deduce from the evidence." (People v. Jones (1990)

51 Cal.3d 294, 314.) Furthermore, "[a]lthough we must ensure the evidence is

reasonable, credible, and of solid value, nonetheless it is the exclusive province of the

trial judge or jury to determine the credibility of a witness and the truth or falsity of the

facts on which that determination depends. [Citation.] Thus, if the verdict is supported

by substantial evidence, we must accord due deference to the trier of fact and not

substitute our evaluation of a witness's credibility for that of the fact finder." (Ibid.)

B

"A person who knowingly aids and abets criminal conduct is guilty of not only the

intended crime [target offense] but also of any other crime the perpetrator actually

commits [nontarget offense] that is a natural and probable consequence of the intended

crime. The latter question is not whether the aider and abettor actually foresaw the

10
additional crime, but whether, judged objectively, it was reasonably foreseeable."

(People v. Mendoza (1998) 18 Cal.4th 1114, 1133.) The California Supreme Court

discussed the doctrine of natural and probable consequences, stating:

"[W]hen a particular aiding and abetting case triggers application of
the 'natural and probable consequences' doctrine, the [People v.
Beeman (1984) 35 Cal.3d 547, 560] test applies, and the trier of fact
must find that the defendant, acting with (1) knowledge of the
unlawful purpose of the perpetrator; and (2) the intent or purpose of
committing, encouraging, or facilitating the commission of a
predicate or target offense; (3) by act or advice aided, promoted,
encouraged or instigated the commission of the target crime. But the
trier of fact must also find that (4) the defendant's confederate
committed an offense other than the target crime; and (5) the offense
committed by the confederate was a natural and probable
consequence of the target crime that the defendant aided and
abetted." (People v. Prettyman (1996) 14 Cal.4th 248, 262, fn.
omitted.)

"A reasonably foreseeable consequence is to be evaluated under all the factual

circumstances of the individual case [citation] and is a factual issue to be resolved by the

jury." (People v. Medina (2009) 46 Cal.4th 913, 920 (Medina).)

In this case, the trial court instructed the jury on the elements of murder, including

the natural and probable consequences theory of implied malice (CALCRIM Nos. 520 &

403), aiding and abetting (CALCRIM Nos. 400 & 401), and the elements of the

uncharged target offenses of assault and challenge to fight in public (CALCRIM Nos.

875 & 2688). The trial court instructed with CALCRIM No. 520 on implied malice,

stating: "The defendant acted with implied malice if: [¶] 1. [H]e intentionally committed

an act; [¶] 2. The natural and probable 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

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[¶] 4. [H]e deliberately acted with conscious disregard for [human] life." The court

further instructed with a modified version of CALCRIM No. 403 on the doctrine of

natural and probable consequences, stating:

"Before you may decide whether the defendant is guilty of Murder,
you must decide whether he is guilty of Assault and/or Challenge to
Fight in Public.

"To prove that the defendant is guilty of Murder, the People must
prove that:

"1. The defendant is guilty of Assault and/or Challenge to Fight in
Public (with gang allegations).

"2. During the commission of Assault and/or Challenge to Fight in
Public (with gang allegations), a coparticipant in that Assault
committed the crime of Murder; [¶] AND

"3. Under all of the circumstances, a reasonable person in the
defendant's position would have known that the commission of the
Murder was a natural and probable consequence of the commission
of the Assault and/or Challenge to Fight in Public (with gang
allegations).

"A coparticipant in a crime is the perpetrator or anyone who aided
and abetted the perpetrator. It does not include a victim or innocent
bystander.

"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. If the murder was
committed for a reason independent of the common plan to commit
the Assault, then the commission of Murder was not a natural and
probable consequence of Assault and/or Challenge to Fight in Public
(with gang allegations).

"To decide whether [the] crime of Assault and/or Challenge to Fight
in Public (with gang allegations) was committed, please refer to the
separate instructions that I will give you on those crimes[.]

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 "The People are alleging that the defendant originally intended to aid
and abet Assault and/or Challenge to Fight in Public.

"If you decide that the defendant aided and abetted one of these
crimes and that Murder was a natural and probable consequence of
that crime, the defendant is guilty of Murder. You do not need to
agree about which of these crimes the defendant aided and abetted."

The trial court also instructed with CALCRIM No. 1401 on the section 186.22,

subdivision (b)(1) gang allegation.

C

Rocha asserts the evidence is insufficient to support his murder conviction because

murder was not a natural and probable consequence of the target offenses of assault

and/or challenge to fight in public in the circumstances of this case. Alternatively stated,

he argues it was not reasonably foreseeable that the offenses of assault and/or challenge

to fight in public in this case would result in Allen's murder.

Based on our review of the whole record, we conclude there is substantial

evidence to support Rocha's conviction of second degree murder. We conclude there is

substantial evidence to support the jury's implicit finding that Rocha intended to aid or

abet Avalos's commission of the target offenses of assault and/or challenge to fight in

public and that Allen's murder was a natural and probable consequence of those target

offenses. Jones's trial testimony described how the incident occurred. Rocha approached

Jones and asked for a lighter. After receiving that lighter, Rocha asked Jones whether he

knew where he was. Jones replied, "Yeah, Carlsbad." Rocha then tilted his head and

shoulders back, inflated his chest, and responded, "Carlos Malos." When Allen came

13
back to assist Jones and asked whether there was a problem, Avalos replied to Allen,

"What's up, homie," pulled out a knife, and fatally stabbed Allen in the abdomen.

Detective Hargett testified that Rocha was an admitted gang member and met the

Department of Justice's criteria for documentation as a gang member. In 2006, Rocha's

father admitted he was the Carlsbad gang's "shot caller." Hargett also explained gang "hit

ups" (e.g., "Where you from" and "Do you know where you are at") and stated they are

likely to have a violent outcome. He also testified, as described above, regarding specific

violent incidents involving the Carlsbad gang since 2006 that resulted in severe injuries

to their victims and many of which involved the use of knives. Gang members tell others

about their crimes to gain "respect." The jury could reasonably infer that, as a Carlsbad

gang member, Rocha likely would have heard about many, if not all, of those past violent

incidents involving the Carlsbad gang and the severe injuries suffered by their victims

from the stabbings and beatings. The jury could reasonably infer Rocha had heard about

the attack on Bryce Smith, the African-American high school student who was allegedly

punched and kicked by Avalos and other Carlsbad gang members who were arrested for

that incident. Also, during Rocha's interview with Hargett after the instant incident,

Rocha admitted he "knew something was gonna happen to [Allen]." Based on all of the

evidence, the jury could reasonably infer that when Rocha "hit up" Jones, he intended to

aid and abet the commission of an assault and/or challenge to fight in public, knew that

act was dangerous to human life, and deliberately acted with conscious disregard for

human life. Furthermore, the jury could reasonably infer that a reasonable person in

Rocha's position would have known that Avalos's murder of Allen was a natural and

14
probable consequence, or a reasonably foreseeable result, of the offenses of assault and/or

challenge to fight in public in the circumstances of this case. Therefore, there was

substantial evidence to support Rocha's conviction of second degree murder.

Contrary to Rocha's assertion, the fact that none of the Carlsbad gang's prior

victims died following the attacks on them does not disprove the requirements that Rocha

knew death was a reasonably foreseeable result of his "hit up" and the assault and/or

challenge to fight in public or that a reasonable person in those circumstances would have

reasonably foreseen Allen's murder could have resulted from those offenses. On the

contrary, we conclude there was substantial evidence to support those findings, including

evidence of specific prior violent incidents in which the victims of the Carlsbad gang

sustained severe injuries that were life-threatening and, absent immediate medical

treatment, could have resulted in their deaths. The jury could reasonably infer the

Carlsbad gang members who inflicted those injuries had acted with conscious disregard

for human life and Rocha was, and a reasonable person in his position and with his

knowledge would have been, aware that Allen's murder was a natural and probable

consequence of the commission of the offenses of assault and/or challenge to a fight in

public in the circumstances of this case.

We also reject Rocha's assertion that because he did not know Avalos had a knife,

he could not have known Allen's murder was a natural and probable consequence of his

aiding and abetting the commission of the offenses of assault and/or challenge to fight in

public. First, the jury was not required to infer from Rocha's interview statement--he

"never seen any knife" that night--that he did not, in fact, know Avalos possessed a knife

15
that night. Rather, the jury could reasonably infer, based on the many Carlsbad gang

incidents involving knife use, that Rocha knew Avalos had, or probably had, a knife at

the time he (Rocha) "hit up" Jones and aided and abetted the assault and/or challenge to

fight in public. Second, in any event, Rocha's knowledge of Avalos's possession of a

knife was not a requirement for the jury to find that murder was a natural and probable

consequence of the target offenses. Rather, the jury could reasonably infer, based on past

Carlsbad gang violent incidents not involving knives, that the "hit up" in this case posed a

danger to human life, whether by a beating or otherwise, such that murder was a natural

and probable consequence of the target offenses. "[P]rior knowledge that a fellow gang

member is armed is not necessary to support a defendant's murder conviction as an aider

and abettor." (Medina, supra, 46 Cal.4th at p. 921; see also People v. Montes (1999)

74 Cal.App.4th 1050, 1056 [defendant need not know of perpetrator's intended use of

weapon, but only intend to facilitate the target offense from which the charged crime is a

foreseeable consequence]; People v. Montano (1979) 96 Cal.App.3d 221, 227.)

Furthermore, contrary to Rocha's apparent assertion, he was not merely "present" during

the assault and/or challenge to fight in public, but, as the jury impliedly found, aided and

abetted the assault and/or challenge to fight in public that naturally and probably resulted

in Allen's murder. (Cf. People v. Stankewitz (1990) 51 Cal.3d 72, 90.)

Finally, although we agree with Rocha that Medina, supra, 46 Cal.4th 913, is

factually inapposite to this case, we nevertheless believe that case is instructive on the

doctrine of natural and probable consequences and supports our conclusion there is

substantial evidence to support Rocha's conviction of second degree murder. Medina

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discussed that nontarget offenses may be the natural and probable consequence of target

offenses if those nontarget offenses are reasonably foreseeable by a reasonable person in

the aider and abettor's position. (Id. at p. 920.) To be reasonably foreseeable, the

consequence need not have been a strong probability, but instead may be merely a

possible consequence of the target offense. (Ibid.) Rocha cites as support for his

contention the following language from Medina:

"Contrary to the dissent's suggestion, there was more here than just
verbal challenges by gang members. [Citation.] There was evidence
that Barba refused to succumb to the gang assault despite being
substantially outnumbered and defendants were unable to avenge
themselves because of Barba's show of strength; gang culture (in
which defendants were involved) emphasizes respect, fear, and
retaliatory violence in the face of disrespectful behavior; Lil Watts
was a violent street gang that regularly committed gun offenses; and
a Lil Watts gang member had ready access to a gun at the scene.
Even if the three aggressors did not intend to shoot Barba when they
verbally challenged him, or at the start of the fistfight, it was or
should have been reasonably foreseeable to these gang members that
the violence would escalate even further depending on Barba's
response to their challenge. [Citations.] Thus, given the fact that
defendants were unable to avenge themselves for the perceived
multiple instances of disrespectful behavior by Barba, the jury could
reasonably have found that defendants would have or should have
known that retaliation was likely to occur and that escalation of the
confrontation to a deadly level was reasonably foreseeable as Barba
was retreating from the scene." (Medina, supra, at pp. 927-928.)

Contrary to Rocha's assertion, the fact Medina involved rival gangs with access to a gun

at the scene and other distinguishing circumstances does not show that murder was not a

natural and probable consequence of Rocha's aiding and abetting the offenses of assault

and/or challenge to fight in public in the circumstances of this case. We conclude there is

substantial evidence to support his conviction of second degree murder.

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 II

INSTRUCTION ON INVOLUNTARY MANSLAUGHTER
AS A LESSER INCLUDED OFFENSE OF MURDER

Rocha contends the trial court prejudicially erred by not instructing sua sponte on

involuntary manslaughter as a lesser included offense (LIO) of murder.

A

Murder is the unlawful killing of a human being with malice aforethought. (§ 187,

subd. (a).) Malice, the mens rea for murder, is a specific intent to kill or a conscious

disregard for life. (People v. Rios (2000) 23 Cal.4th 450, 460.) Malice may be express

when a defendant manifests "a deliberate intention unlawfully to take away the life of a

fellow creature." (§ 188.) Malice may be implied when the killing results from an

intentional act, the natural consequences of which are dangerous to life, which act was

deliberately performed by a person who knows his or her conduct endangers the life of

another and who acts with conscious disregard for life. (People v. Lasko (2000)

23 Cal.4th 101, 107; People v. Dellinger (1989) 49 Cal.3d 1212, 1215.)

Manslaughter is the unlawful killing of a human being without malice. (§ 192.)

"A defendant lacks malice and is guilty of voluntary manslaughter 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-defense"--

the unreasonable but good faith belief in having to act in self-defense [citations].' "

(People v. Blakeley (2000) 23 Cal.4th 82, 87-88.) Furthermore, "when a defendant,

18
acting with a conscious disregard for life, unintentionally kills in unreasonable self-

defense, the killing is voluntary . . . manslaughter." (Id. at p. 91.)

Involuntary manslaughter generally is the unlawful killing of a human being

without malice (i.e., without an intent to kill and without a conscious disregard for life.)

(§ 192, subd. (b); CALCRIM No. 580.) There are two statutory forms of involuntary

manslaughter: (1) a killing during the commission of an unlawful act not amounting to a

felony (e.g., misdemeanor); and (2) a killing in the commission of a lawful act that might

produce death, in an unlawful manner or without due caution and circumspection.

(§ 192, subd. (b).) In addition, a nonstatutory form of committing involuntary

manslaughter is based on a predicate act of a noninherently dangerous felony committed

without due caution and circumspection. (People v. Butler (2010) 187 Cal.App.4th 998,

1007; People v. Blakeley, supra, 23 Cal.4th at p. 89; People v. Burroughs (1984) 35

Cal.3d 824, 835-836.) "[W]here involuntary manslaughter is predicated on an unlawful

act constituting a misdemeanor, it must still be shown that such misdemeanor was

dangerous to human life or safety under the circumstances of its commission." (People v.

Cox (2000) 23 Cal.4th 665, 675.) "The inherent or abstract nature of a misdemeanor

which underlies an involuntary manslaughter charge is not dispositive." (People v. Wells

(1996) 12 Cal.4th 979, 988.) All forms of involuntary manslaughter require the mens rea

of criminal negligence, which is a disregard for human life judged by an objective, or

reasonable person, standard. (Butler, supra, at pp. 1007-1009.) Alternatively stated, a

defendant acts with criminal negligence when he or she acts in a reckless way that creates

a high risk of death or great bodily injury and a reasonable person would have known that

19
acting that way would create such a risk. (CALCRIM No. 580.) However, if that person

unlawfully kills another with an intent to kill or a conscious disregard for human life, the

offense is either murder or voluntary manslaughter. (Ibid.)

"Both murder (based on implied malice) and involuntary manslaughter involve a

disregard for life; however, for murder the disregard is judged by a subjective standard

whereas for involuntary manslaughter the disregard is judged by an objective standard.

[Citations.] Implied malice murder requires a defendant's conscious disregard for life,

meaning that the defendant subjectively appreciated the risk involved. [Citation.] In

contrast, involuntary manslaughter merely requires a showing that a reasonable person

would have been aware of the risk. [Citation.] Thus, even if the defendant had a

subjective, good faith belief that his or her actions posed no risk, involuntary

manslaughter culpability based on criminal negligence is warranted if the defendant's

belief was objectively unreasonable." (People v. Butler, supra, 187 Cal.App.4th at

pp. 1008-1009, fn. omitted.)

B

"In a criminal case, a trial court must instruct on the general principles of law

relevant to the issues raised by the evidence." (People v. Earp (1999) 20 Cal.4th 826,

885.) "The trial court has a sua sponte duty to instruct on lesser included offenses when

the evidence raises a question as to whether all of the elements of the charged offense

were present and there is evidence that would justify a conviction of such a lesser

offense." (People v. Cooper (1991) 53 Cal.3d 771, 827 (Cooper).) An instruction on an

LIO is not required when there is no evidence to support a finding the LIO was

20
committed. (People v. Breverman (1998) 19 Cal.4th 142, 154 (Breverman).)

Alternatively stated, "a trial court errs if it fails to instruct, sua sponte, on all theories of a

lesser included offense which find substantial support in the evidence. On the other hand,

the court is not obliged to instruct on theories that have no such evidentiary support." (Id.

at p. 162.) "[A] trial court is not required to instruct the jury as to all lesser included

offenses, only those that 'find substantial support in the evidence.' " (People v. Medina

(2007) 41 Cal.4th 685, 700.) "Under California law, a lesser offense is necessarily

included in a greater offense if . . . the statutory elements of the greater offense . . .

include all the elements of the lesser offense, such that the greater offense cannot be

committed without also committing the lesser." (People v. Birks (1998) 19 Cal.4th 108,

117.)

"[T]he failure to instruct sua sponte on a lesser included offense in a noncapital

case is, at most, an error of California law alone, and is thus subject only to state

standards of reversibility. . . . [S]uch misdirection of the jury is not subject to reversal

unless an examination of the entire record establishes a reasonable probability that the

error affected the outcome. [Citations.]" (Breverman, supra, 19 Cal.4th at p. 165; see

also People v. Wyatt (2012) 55 Cal.4th 694, 698.)

C

Rocha asserts that because there was substantial evidence to have supported a

finding by the jury that he did not have the subjective mental state required for murder

(i.e., malice), the trial court erred by not instructing sua sponte on involuntary

manslaughter as an LIO of murder. Although the trial court instructed the jury on murder

21
and voluntary manslaughter as an LIO of murder, it did not instruct on involuntary

manslaughter as an LIO of murder.

Even if we assume the trial court erred in not sua sponte instructing the jury on the

lesser included offense of involuntary manslaughter, we conclude the error did not

prejudice Rocha. "[W]hen a trial court violates state law by failing to properly instruct

the jury on a lesser included offense, this test applies: '[I]n a noncapital case, error in

failing sua sponte to instruct, or to instruct fully, on all lesser included offenses and

theories thereof which are supported by the evidence must be reviewed for prejudice

exclusively under [People v.] Watson [(1956) 46 Cal.2d 818, 836 [299 P.2d 243]]. A

conviction of the charged offense may be reversed in consequence of this form of error

only if, "after an examination of the entire cause, including the evidence" (Cal. Const.,

art. VI, § 13), it appears "reasonably probable" the defendant would have obtained a more

favorable outcome had the error not occurred [citation]. [Citation.]' " (People v. Lasko,

supra, 23 Cal.4th at p. 111.)

In applying the Watson standard of prejudice, we follow our high court's guidance

in Breverman, supra, 19 Cal.4th 142:

"Appellate review under Watson . . . focuses not on what a
reasonable jury could do, but what such a jury is likely to have done
in the absence of the error under consideration. In making that
evaluation, an appellate court may consider, among other things,
whether the evidence supporting the existing judgment is so
relatively strong, and the evidence supporting a different outcome is
so comparatively weak, that there is no reasonable probability the
error of which the defendant complains affected the result." (Id. at
p. 177; original italics.)

22
 Based on our review of the record, we conclude the trial court's error was harmless

under the Watson standard. Here, on the record before us, we determine the jury was not

likely to have convicted Rocha of involuntary manslaughter in the absence of the error.

In making this determination, we stress the context of the events in question: This was a

gang case.2

Rocha is a gang member. Avalos is a gang member of the same gang. The jury

was presented with mountainous evidence regarding the gang's typical activities. Such

activities included attacking victims with knives and targeting African-Americans.

Moreover, the prosecution presented evidence that Avalos was arrested for one of the

gang's previous attacks on an African-American young male.

In addition, the jury convicted Rocha of second degree murder as an aider and

abettor under the natural and probable consequences doctrine. This theory only makes

sense within the gang framework presented by the prosecution at trial. Rocha "hit up"

Jones. After which, Allen essentially asked if there was a problem. In response to

Allen's question, Avalos stabbed him, and Jones punched Rocha. Then everyone fled.

Such an interaction among the four men can only be understood within the gang context.

Further, the jury found beyond a reasonable doubt that Rocha was aware that

Allen's murder was a natural and probable consequence of the offenses of assault and/or

2 Rocha does not directly challenge the jury's finding that the murder was
committed for the benefit of a criminal street gang. Rather, in regard to the gang
allegations, he contends: (1) the evidence is insufficient to show his gang had a primary
activity of any of the offenses listed in section 186.22, subdivision (e); and (2) the trial
court erred in instructing on the elements of the gang allegation. As we discuss below,
these contentions are without merit.
23
challenge to a fight in public. The jury also found that the murder was committed for the

benefit of a gang. Again, the jury believed the prosecution's theory that the murder was a

logical consequence of Rocha's "hit up" of Jones. In other words, without the gang

component, the prosecution's theory of the case would have crumbled. Moreover, we

note that in making this finding, the jury had to find beyond a reasonable doubt that

Rocha harbored the necessary malice (either express or implied) to convict him of second

degree murder. (See People v. Chun (2009) 45 Cal.4th 1172, 1181.)

Despite the abundance of evidence to support the gang theory against Rocha, he

argues that the trial court's failure to give an involuntary manslaughter instruction

prejudiced him. To support his position, Rocha focuses on certain statements he made to

the police. For example, Rocha told the police that he "never seen any knife" on the night

Allen was stabbed, and he was startled by the events that occurred after he asked Allen

for a light. Neither of these statements persuades us that it is likely that the jury would

have convicted Rocha of involuntary manslaughter instead of second degree murder.

Rocha's statement that he "never seen any knife" that night could imply that he

was unaware that Avalos had a knife on the night in question. That said, Rocha's

knowledge of Avalos's possession of the knife is not of the moment. As we discuss

above, Rocha's knowledge of Avalos's possession of a knife was not a requirement for the

jury to find that murder was a natural and probable consequence of the target offenses.

Instead, the jury could reasonably infer that the "hit up" in this case posed a danger to

human life, whether by a beating or otherwise, such that murder was a natural and

probable consequence of the target offenses. (See Medina, supra, 46 Cal.4th at pp. 921-

24
923; People v. Montes, supra, 74 Cal.App.4th at pp. 1055-1056.) Indeed, such a

consequence was argued by the prosecution and supported by the testimony of its gang

expert.

Also, Rocha's statement that he was startled by the events that occurred, does not

convince us that the lack of an involuntary manslaughter instruction prejudiced Rocha.

Again, we view this statement in the context of the gang violence of this case. Rocha

does not address the evidence supporting the gang allegations in relation to his claim that

the failure to give the involuntary manslaughter instruction prejudiced him. He provides

no authority that requires us to evaluate Rocha's statements in a vacuum, ignoring the

gang evidence against him. Indeed, under Breverman, supra, 19 Cal.4th 142, we cannot

do so. Simply put, unless we disregard the gang evidence in this case, Rocha's statements

to the police, by themselves, do not lead us to conclude the failure to provide the

involuntary manslaughter instruction prejudiced Rocha.

On this record, it is not reasonably probable that Rocha would have obtained a

more favorable outcome had the jury been instructed on the lesser included offense of

involuntary manslaughter, and any error is therefore harmless. (See People v. Lasko,

supra, 23 Cal.4th at p. 111.)

25
 III

SUBSTANTIAL EVIDENCE TO SUPPORT FINDING OF
GANG'S PRIMARY ACTIVITY

Rocha contends the evidence is insufficient to support the jury's finding that the

Carlsbad gang had as one of its primary activities one or more of the offenses listed in

section 186.22, subdivision (e).

A

The information alleged Rocha committed the murder of Allen for the benefit of a

criminal street gang within the meaning of section 186.22, subdivision (b)(1), which

provides:

"[A]ny person who is convicted of a felony committed for the
benefit of, at the direction of, or in association with any criminal
street gang, with the specific intent to promote, further, or assist in
any criminal conduct by gang members, shall, upon conviction of
that felony, in addition and consecutive to the punishment prescribed
for the felony or attempted felony of which he or she has been
convicted, be punished as follows: . . . ."

A "criminal street gang" is defined as "any ongoing organization, association, or group of

three or more persons, whether formal or informal, having as one of its primary activities

the commission of one or more of the criminal acts enumerated in paragraphs (1) to (25),

inclusive, or (31) to (33), inclusive, of subdivision (e), having a common name or

common identifying sign or symbol, and whose members individually or collectively

engage in or have engaged in a pattern of criminal gang activity." (§ 186.22, subd. (f),

italics added.) Among the various criminal offenses listed in section 186.22,

26
subdivision (e), is the offense of assault with a deadly weapon or by means of force likely

to produce great bodily injury. (§ 186.22, subd. (e)(1).)

The trial court instructed the jury with CALCRIM No. 1401 on the section 186.22,

subdivision (b)(1) allegation. After finding Rocha guilty of second degree murder, the

jury then found true the allegation Rocha committed that murder for the benefit of a

criminal street gang within the meaning of section 186.22, subdivision (b)(1).

B

We conclude there is substantial evidence to support the jury's finding Rocha

committed the murder for the benefit of a criminal street gang. There is substantial

evidence to support the finding that one of the primary activities of the Carlsbad gang

was the commission of one or more of the criminal acts listed in section 186.22,

subdivision (e).

"Sufficient proof of the gang's primary activities might consist of evidence that the

group's members consistently and repeatedly have committed criminal activity listed in

the gang statute. Also sufficient might be expert testimony [e.g., testimony of a police

gang expert] . . . ." (People v. Sengpadychith (2001) 26 Cal.4th 316, 324

(Sengpadychith).) Therefore, if a police gang expert testifies, based on his or her

personal investigations and information obtained from other law enforcement sources,

that a particular gang was primarily engaged in one or more of the criminal acts listed in

section 186.22, subdivision (e), that expert testimony may be sufficient evidence to

support a section 186.22, subdivision (b)(1) allegation. (Sengpadychith, supra, at p. 324;

People v. Gardeley (1996) 14 Cal.4th 605, 620.)

27
 Detective Hargett, the prosecution's gang expert, testified regarding many prior

violent acts committed by members of the Carlsbad gang. He testified regarding the

attacks on Torres, who was driving with his friends through Carlsbad in response to a

Craigslist "for sale" advertisement. They stopped when young gang members threw

rocks at their car. As they called police, older gang members approached Torres and his

friends and asked them why they were messing with the "little homies." A fight ensued

and Torres was stabbed eight to 10 times in the front and back of his torso. He was "life-

flighted" for emergency medical treatment. Jesus Hernandez and Edgar Zepeda were

convicted for attacking Torres and copies of their convictions were admitted into

evidence as predicate offenses committed by members of the Carlsbad gang.

Hargett also testified regarding the attack on Eric Allen, an African-American,

who was driving through the Carlsbad barrio when "some guys" signaled for him to slow

down. Allen stopped his car, got out, and apologized, stating: "Hey, I know I am in the

hood. Sorry. No disrespect." Christian Gill, a Carlsbad gang member, stabbed Allen

once in the arm and once in the gut with a small, pocket-style folding knife with a blade

about two and one-half inches long. With "about two feet of his intestines hanging out

through his stab wound," Allen was able to get back into his car and drive to a nearby

house from which he was then "life-flighted" to a hospital. Gill was convicted for

stabbing him. A copy of Gill's conviction for his attack on Eric Allen was admitted into

evidence.

Although Hargett did not specify the criminal offenses of which Hernandez,

Zepeda, and Gill were convicted, the jury received copies of their criminal convictions

28
that presumably set forth that information.3 Hargett also testified on the violent attacks

by other Carlsbad gang members on Johnny Pliego, Bryce Smith, Alex Lopez, and

Frederick Baker. Importantly, Hargett expressed his expert opinion that the Carlsbad

gang "consistently engaged in a pattern of criminal activity." We conclude Hargett had

an adequate foundation on which to form that opinion. Based on Hargett's expert

testimony and documentary evidence of criminal convictions of Carlsbad gang members

for two of the six violent attacks discussed above, the jury could reasonably infer that one

of the primary activities of the Carlsbad gang was the commission of one or more of the

offenses listed in section 186.22, subdivision (e) (e.g., assault with a deadly weapon or by

means of force likely to produce great bodily injury). There is substantial evidence to

support the jury's finding Rocha committed the murder for the benefit of a criminal street

gang within the meaning of section 186.22, subdivision (b)(1). (Cf. Sengpadychith,

supra, 26 Cal.4th at p. 324; People v. Gardeley, supra, 14 Cal.4th at p. 620.)

IV

INSTRUCTION ON ELEMENTS OF
SECTION 186.22, SUBDIVISION (B)(1) ALLEGATION

Rocha contends the trial court erred in instructing on the elements of the section

186.22, subdivision (b)(1) gang enhancement allegation. He argues that because the trial

court omitted from that instruction the specific types of crimes committed by Carlsbad

3 Although the People were unable to locate Exhibits Nos. 30, 31, and 32, we
presume, and Rocha does not dispute, those exhibits did, in fact, set forth criminal acts
committed by Hernandez, Zepeda, and Gill that are listed in section 186.22,
subdivision (e).

29
gang members, the jury was not instructed on which specific crimes were the gang's

primary activities within the definition of a criminal street gang. (§ 186.22, subds. (b)(1),

(e).)

A

Out of the jury's presence, the trial court inquired of the parties' counsel whether

there were any stipulations. The prosecutor replied: "I think [defense counsel] and I are

essentially stipulating to the fact that the two blue-back priors we have for predicate

crimes contain crimes within [section] 186.22[, subd.] (b). So you don't have to give . . .

instructions on those crimes to the jury." Rocha's counsel did not express any

disagreement with the prosecutor's statement. The court accepted the parties' stipulation.

The trial court instructed the jury with the following modified version of

CALCRIM No. 1401:

"If you find the defendant guilty of the crimes charged in Count
One, or the lesser offense of voluntary manslaughter, you must then
decide whether, for each crime, the People have proved the
additional allegation that the defendant committed that crime for the
benefit of, at the direction of, or in association with a criminal street
gang. You must decide whether the People have proved this
allegation for each crime and return a separate finding for each
crime.

"To prove this allegation, the People must prove that:

"1. The defendant committed the crime for the benefit of, at the
direction of, or in association with a criminal street gang; [¶] AND

"2. The defendant intended to assist, further, or promote criminal
conduct by gang members.

"A criminal street gang is any ongoing organization, association, or
group of three or more persons, whether formal or informal:

30
 "1. That has a common name or common identifying sign or
symbol;

"2. That has, as one or more of its primary activities, the
commission of c [sic]; [¶] AND

"3. Whose members, whether acting alone or together, engage in or
have engaged in a pattern of criminal gang activity.

"In order to qualify as a primary activity, the crime must be one of
the group's chief or principal activities rather than an occasional act
committed by one or more persons who happen to be members of
the group. . . ."

The jury found true the allegation Rocha committed the murder for the benefit of a

criminal street gang within the meaning of section 186.22, subdivision (b)(1).

B

Rocha argues the trial court erred by instructing with a version of CALCRIM No.

1401 that omitted the specific predicate crimes that allegedly provided the basis for the

second element for a finding that the Carlsbad gang was a criminal street gang (i.e., the

gang had as one of its primary activities the commission of those specific types of

crimes). However, Rocha waived or forfeited that purported error by stipulating to that

omission. As discussed above, the prosecutor pronounced on the record the parties'

stipulation "to the fact that the two blue-back priors we have for predicate crimes contain

crimes within [section] 186.22[, subd.] (b). So you don't have to give . . . instructions on

those crimes to the jury." Therefore, to the extent the court erred by omitting those

specific predicate crimes, Rocha invited that error and cannot now raise it on appeal.

(Cooper, supra, 53 Cal.3d at p. 831.) We disagree with Rocha's argument that his

31
stipulation dealt only with the third element for a criminal street gang finding (i.e., a

pattern of criminal gang activity). Rather, the list of predicate crimes set forth in section

186.22, subdivision (e) applies to both the second and third elements for a criminal street

gang finding for purposes of a section 186.22, subdivision (b)(1) allegation. (§ 186.22,

subds. (e), (f).) Therefore, the parties' stipulation that the two "blue-back priors" (i.e., the

stabbings of Torres and Eric Allen discussed above) were predicate crimes for purposes

of section 186.22, subdivision (b)(1), and Rocha's stipulation that the court need not

instruct on those crimes constituted not only invited instructional error, but also an

admission that the requirement for the section 186.22, subdivision (b)(1) allegation was

satisfied.

Assuming arguendo Rocha did not invite that error and/or admit the Carlsbad gang

had committed specific crimes as one of its primary activities within the meaning of the

section 186.22, subdivision (b)(1) allegation, we nevertheless would conclude the trial

court's instructional error was harmless. The court had a duty to instruct sua sponte on

the elements of the section 186.22, subdivision (b)(1) allegation. (Sengpadychith, supra,

26 Cal.4th at p. 325.) By omitting from its instruction with CALCRIM No. 1401 the

specific predicate crimes for the second element of the definition of a criminal street gang

within the meaning of section 186.22, subdivision (b)(1), the court erred. However, we

conclude that error was harmless under either the federal or California standard of

prejudice. Under the California standard of Watson, supra, 46 Cal.2d 818, which applies

when the gang enhancement would not increase Rocha's punishment, such as in the case

of an indeterminate sentence for murder as the court imposed in this case (see

32
Sengpadychith, at pp. 325-327), we conclude it is not reasonably probable he would have

obtained a more favorable result had the court not so erred. The jury received copies of

the criminal convictions of Hernandez, Zepeda, and Gill for their vicious attacks on

Torres and Eric Allen. As Rocha concedes, because those attacks involved stabbings

with great bodily injury, they necessarily constituted predicate crimes for purposes of the

section 186.22, subdivision (b)(1) allegation. Therefore, had the court's instruction with

CALCRIM No. 1401 specifically listed the type(s) of those predicate crimes (e.g., assault

with a deadly weapon or by means of force likely to produce great bodily injury), we

have no doubt the jury would have made the same true finding on the section 186.22,

subdivision (b)(1) allegation. It is not reasonably probable Rocha would have obtained a

more favorable result had the court not erred by omitting those specific predicate crimes

from its instruction. (Watson, supra, at p. 836; Sengpadychith, supra, at p. 327.)

Alternatively, even applying the federal standard of prejudice (Chapman v.

California (1967) 386 U.S. 18, 24), we conclude that instructional error was harmless

beyond a reasonable doubt. The criminal convictions of Hernandez, Zepeda, and Gill for

their vicious attacks on Torres and Eric Allen involved stabbings with great bodily injury

and therefore necessarily constituted predicate crimes (e.g., assault with a deadly weapon

or by means of force likely to produce great bodily injury) for purposes of the section

186.22, subdivision (b)(1) allegation. Because there is no reasonable possibility of any

finding by a jury other than that those predicate crimes were of the type listed in section

186.22, subdivision (e), for purposes of determining whether the Carlsbad gang was a

criminal street gang within the meaning of section 186.22, subdivision (b)(1), the trial

33
court's error in omitting the specific predicate crimes for the second element of the

criminal street gang definition was harmless beyond a reasonable doubt. (Chapman,

supra, at p. 24.)

V

INSTRUCTIONS ON ELEMENTS OF TARGET OFFENSES

Rocha contends the trial court erred by not instructing on all of the elements of the

uncharged target offenses (i.e., assault and/or challenge to fight in public) that provided

the basis for the murder charge. He argues that because the trial court erred in instructing

on the gang allegation, as discussed above, and the court's instructions on the natural and

probable consequence theory of murder listed the two uncharged target offenses (i.e.,

assault and/or challenge to fight in public) and thereafter included a parenthetical

referring to the related gang allegation, the trial court did not properly instruct on all of

the elements of the target offenses and, therefore, of murder.

A

The trial court instructed with CALCRIM Nos. 403 and 520 on the natural and

probable consequences theory of implied malice murder. The court instructed with a

modified version of CALCRIM No. 403 on the doctrine of natural and probable

consequences, stating:

"Before you may decide whether the defendant is guilty of Murder,
you must decide whether he is guilty of Assault and/or Challenge to
Fight in Public.

"To prove that the defendant is guilty of Murder, the People must
prove that:

34
 "1. The defendant is guilty of Assault and/or Challenge to Fight in
Public (with gang allegations).

"2. During the commission of Assault and/or Challenge to Fight in
Public (with gang allegations), a coparticipant in that Assault
committed the crime of Murder; [¶] AND

"3. Under all of the circumstances, a reasonable person in the
defendant's position would have known that the commission of the
Murder was a natural and probable consequence of the commission
of the Assault and/or Challenge to Fight in Public (with gang
allegations)." (Italics added.)

The jury found Rocha guilty of murder and found true the section 186.22,

subdivision (b)(1) gang allegation.

B

Rocha asserts the trial court's instruction with the modified version of CALCRIM

No. 403, quoted above, had the effect of making the section 186.22, subdivision (b)(1)

gang allegation an additional element of the uncharged target offenses of assault and

challenge to fight in public for purposes of the natural and probable consequences theory

of implied malice murder. He argues that although the trial court instructed on the

elements of the uncharged target offenses of assault and challenge to fight in public, the

court erred by not clearly instructing the jury on what it intended by including the "gang

allegations" parenthetical that followed its listing of the target offenses in CALCRIM No.

403.

We are satisfied the trial court's instructions on the natural and probable

consequences theory of implied malice murder, when construed together with all of the

other instructions, were correct and not misleading. The court's modified version of

35
CALCRIM No. 403 could not reasonably be construed as adding another element to the

uncharged target offenses (i.e., the element of "gang allegations"). On the contrary, when

considered together with the other instructions, the jury certainly understood the

parenthetical "with gang allegations" merely referred to the related section 186.22,

subdivision (b)(1) gang allegation, and did not constitute an additional element of the

uncharged target offenses of assault and challenge to fight in public for purposes of the

natural and probable consequences theory of implied malice murder.

DISPOSITION

The judgment is affirmed.

HUFFMAN, Acting P. J.

I CONCUR:

McINTYRE, J.

36
McDonald, J., Dissenting.

I agree with a considerable portion of the well-written and thoughtful majority

opinion. I disagree with that portion of the majority opinion concluding the trial court's

failure to instruct sua sponte on the crime of involuntary manslaughter, if error, was not

prejudicial to Rocha under the People v. Watson (1956) 46 Cal.2d 818 (Watson) state

standard of prejudice. I would reverse the judgment of conviction for second degree

murder because of the prejudicial error not to instruct sua sponte on involuntary

manslaughter and remand the matter to the superior court with directions to enter a

judgment of guilty of involuntary manslaughter and resentence Rocha accordingly unless

the People elect within 60 days after the filing of the remittitur in the superior court to

bring Rocha to a retrial on the murder charge.

It has long been held that manslaughter is generally a lesser included offense

(LIO) of murder. (People v. Lewis (2001) 25 Cal.4th 610, 645 ["Manslaughter, both

voluntary and involuntary, is a lesser included offense of murder."]; People v. Sanchez

(2001) 24 Cal.4th 983, 989-992 [recognizing general rule, but holding gross vehicular

manslaughter is not an LIO of murder]; People v. Thomas (1987) 43 Cal.3d 818, 824

[charge of murder included by implication a charge of the LIO's of voluntary and

involuntary manslaughter].) Murder is an unlawful killing that requires malice, whether

express (i.e., an intent to kill) or implied (i.e., conscious disregard for life), and

involuntary manslaughter is an unlawful killing without malice, but with an objective, not

subjective, disregard for life. If a reasonable person would have known the commission

of a misdemeanor in the circumstances of that act would be dangerous to human life (i.e.,
would create a high risk of death or great bodily injury), then the defendant is criminally

negligent and guilty of involuntary manslaughter. Because under California law the

statutory elements of murder include all of the elements of involuntary manslaughter, so

that murder cannot be committed without also committing the lesser offense, involuntary

manslaughter is an LIO of murder. (People v. Birks (1998) 19 Cal.4th 108, 117; Sanchez,

at p. 989; Thomas, at p. 824.) If there is substantial evidence in the record to support a

finding that Rocha committed involuntary manslaughter but not murder, the trial court

was required to instruct sua sponte on involuntary manslaughter as an LIO of murder.

People v. Cooper (1991) 53 Cal.3d 771, 827; People v. Breverman (1998) 19 Cal.4th

142, 154 (Breverman); People v. Medina (2007) 41 Cal.4th 685, 700.)

Based on my review of the whole record, I conclude there is substantial evidence

to support a finding that Rocha committed involuntary manslaughter but not murder. A

reasonable jury could have found Rocha did not aid and abet the assault and/or challenge

to fight in public with the knowledge those misdemeanor offenses were dangerous to life,

or created a high risk of death or great bodily injury, in the circumstances of this case, but

that a reasonable person in his position would have had such knowledge.1 Alternatively

1 Rocha asserts, and the People apparently concede, the relevant unlawful target
offenses in this case are the misdemeanors of assault and challenge to fight in public,
which were not transformed into felony offenses by reason of the related gang
allegations. Although the gang allegations may have allowed punishment of the target
offenses as felonies, for purposes of determining whether a trial court has a duty to
instruct sua sponte on involuntary manslaughter, I presume the target offenses themselves
should be considered without related enhancement allegations. The People do not cite
any cases showing otherwise.

2
stated, a jury could reasonably find Rocha did not act with a conscious disregard for

human life when he aided and abetted the commission of those misdemeanor offenses,

but a reasonable person in his position would have known those acts in the circumstances

of their commission would have been dangerous to human life.

In the circumstances of this case, the jury could have found the prosecution had

not met its burden to prove beyond a reasonable doubt that Rocha, in fact, knew the

misdemeanor offenses he aided and abetted were dangerous to human life. For example,

the jury could have reasonably found that when Rocha approached Jones, asked him for a

lighter, and then asked him where he was from, Rocha did not, in fact, know he was

creating a high risk of death or great bodily injury to another human (e.g., to Allen or

Jones). There was no evidence Rocha had been involved in any prior violent incidents

with the Carlsbad gang, and the jury could have declined to infer that he had heard of

sufficient other violent incidents involving his gang so as to attribute to him the

knowledge that such a "hit up" in the circumstances of this case was likely to be

dangerous to human life. Furthermore, the jury could have found unpersuasive the

prosecution's argument that Hargett's testimony showed Rocha knew about those prior

incidents and/or that he knew a "hit up" was dangerous to human life. Although Hargett

testified that "hit ups" often led to violence, the jury could have found Rocha did not, in

fact, know his "hit up" of Jones created a danger of such great violence that it was

dangerous to human life.

Furthermore, the jury could have inferred from the evidence that Rocha did not

know Avalos possessed a knife that night. During his interview with Hargett, Rocha

3
stated he did not see a knife during the incident. Rocha also told Hargett that "nothing

[was] supposed to go down," which the jury could have reasonably interpreted as

meaning Rocha did not have any intent to harm anyone and did not, in fact, know his

aiding and abetting the assault and/or challenge to fight in public created a danger to

human life. Rocha also told Hargett he was just trying to have a normal conversation

with Jones when he asked him for the lighter. He further stated his question to Jones

about where he was from was not a gang-related question. He also told Hargett he "never

had any intentions" and was innocent, which the jury could have reasonably interpreted

as meaning Rocha did not intend to create any risk to human life and did not, in fact, have

the subjective knowledge that his aiding and abetting the misdemeanor offenses created a

high risk of death or great bodily injury in the circumstances of this case. There is

substantial evidence to support a finding by a jury that Rocha did not have the subjective

intent (i.e., conscious disregard for human life) required for murder based on implied

malice, but nevertheless a reasonable person in Rocha's position would have known the

assault and/or challenge to fight in public that he aided and abetted would create a high

risk of death or great bodily injury in the circumstances of that act. Because there is

substantial evidence to support a finding Rocha committed involuntary manslaughter but

not murder, the trial court erred by not instructing sua sponte on involuntary

manslaughter as an LIO of murder. (People v. Cooper, supra, 53 Cal.3d at p. 827;

Breverman, supra, 19 Cal.4th at pp. 154, 162; People v. Medina, supra, 41 Cal.4th at

p. 700.)

4
 Although the People extensively cite evidence in the record that supports a finding

Rocha had the subjective knowledge his aiding and abetting those misdemeanor offenses

created a danger to human life in the circumstances of the commission of those offenses,

in so doing they misinterpret and/or misapply the applicable standard of review. In

determining whether the trial court erred by not instructing on involuntary manslaughter,

we review the record independently to determine whether there is substantial evidence to

support a finding that Rocha committed involuntary manslaughter but not murder, and

not, as the People apparently argue, whether there is substantial, or even "overwhelming,"

evidence that Rocha had the requisite subjective knowledge (i.e., conscious disregard for

human life) for murder. I am not persuaded by the People's recitation of the evidence,

and inferences therefrom, that is favorable to support the jury's murder verdict constitutes

proof there was insufficient evidence for a finding by a reasonable jury that Rocha lacked

the subjective intent, but a reasonable person in his position would have known the

misdemeanor offenses created a risk to human life in the circumstances of their

commission.

Rocha contends he was prejudiced by the trial court's error in not instructing sua

sponte on involuntary manslaughter as an LIO of murder. He argues that had the trial

court instructed on that LIO, it is reasonably probable the jury would have found him

guilty of involuntary manslaughter instead of murder.

I agree the trial court's instructional error was prejudicial. Based on my review of

all the evidence, I conclude it is reasonably probable Rocha would have obtained a more

favorable outcome had the trial court instructed the jury on involuntary manslaughter as

5
an LIO of murder. (Cal. Const., art. VI, § 13; Breverman, supra, 19 Cal.4th at p. 165;

Watson, supra, 46 Cal.2d at p. 836; People v. Wyatt, supra, 55 Cal.4th at p. 698.) In

applying the "reasonably probable" standard of prejudice, the California Supreme Court

stated: "[A] 'probability' in this context does not mean more likely than not, but merely a

reasonable chance, more than an abstract possibility." (College Hospital Inc. v. Superior

Court (1994) 8 Cal.4th 704, 715.) Based on my review of the record, I conclude the

evidence in support of a finding that Rocha had the requisite subjective intent (i.e.,

conscious disregard for life) for murder based on implied malice, although substantial

enough to support the murder verdict, was not overwhelming and was instead based on

inferences that, although reasonable, were unlikely to have been made by a reasonable

jury had it been instructed on the LIO of involuntary manslaughter.

There was no direct evidence Rocha was aware of the past violent incidents on

which Hargett testified. Furthermore, based on Hargett's testimony, in only a couple of

those incidents was the violence preceded by a "hit up" by the Carlsbad gang. Hargett

conceded that most "hit ups" went unreported to police because they did not result in

violence. Therefore, although the evidence was strong Rocha was a member of the

Carlsbad gang, the evidence in support of inferences that Rocha knew about all of the

prior violent incidents involving the Carlsbad gang and that his "hit up" of Jones created

a danger to human life was weak.

Although Hargett testified "hit ups" that occur within close physical proximity to

another person "mostly will become [sic] . . . a violent outcome," he did not testify that

the "violent outcome" typically was death or great bodily injury. I conclude that had the

6
jury been instructed on involuntary manslaughter as an LIO, there was a reasonable

chance the jury would not have inferred Rocha, in fact, knew his "hit up" of Jones and the

assault and/or challenge to fight in public he aided and abetted created a danger to human

life and would have, instead, concluded he did not have a conscious disregard for human

life.

My conclusion is further supported by a lack of evidence showing Rocha had been

involved in any prior violent incidents and/or that he knew Avalos possessed a knife

when he (Rocha) "hit up" Jones. Also, the evidence shows Avalos acted quickly, and

illogically, during the incident, thereby supporting a finding Rocha did not have the

knowledge that the assault and/or challenge to fight in public would, in the circumstances

of this case, create a high risk of death or great bodily injury. The entire incident

occurred in less than one minute. When Rocha "hit up" Jones, Allen came back and

asked whether there was a problem. Avalos then replied, "What's up, homie," pulled out

a pocket knife, and fatally stabbed Allen in the abdomen. Prior to the stabbing, neither

Jones nor Allen took any actions that could have been reasonably construed as warranting

violence, escalating the matter, or otherwise confrontational. In the circumstances of this

case, it was highly unlikely Rocha could have foreseen, much less known, Avalos would

have acted in that manner or otherwise acted in disregard for human life. I conclude it is

reasonably probable the jury would have found Rocha guilty of involuntary manslaughter

rather than murder had the trial court instructed sua sponte on involuntary manslaughter

as an LIO of murder. Alternatively stated, I conclude there was a reasonable chance

Rocha would have received a more favorable outcome had the trial court instructed on

7
involuntary manslaughter as an LIO of murder. (College Hospital Inc. v. Superior Court,

supra, 8 Cal.4th at p. 715.) My confidence in the jury's verdict is undermined by the trial

court's failure to instruct sua sponte on involuntary manslaughter as an LIO of murder.

Therefore, Rocha's conviction of second degree murder should be reversed. (Cal. Const.,

art. VI, § 13; College Hospital Inc., at p. 715; Breverman, supra, 19 Cal.4th at p. 165;

Watson, supra, 46 Cal.2d at p. 836; People v. Wyatt, supra, 55 Cal.4th at p. 698.)

McDONALD, J.

8