People v. Thibodeaux CA2/2

Filed 1/8/21 P. v. Thibodeaux CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO

THE PEOPLE, B299468

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA070962)
v.

RAKYM THIBODEAUX,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Daviann Mitchell, Judge. Affirmed.
Corona & Peabody and Jennifer Peabody, under
appointment by the Court of Appeal, for Defendant and
Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Susan
Sullivan Pithey, Assistant Attorneys General, Colleen M.
Tiedemann and Rene Judkiewicz, Deputy Attorneys General, for
Plaintiff and Respondent.
 Defendant and appellant Rakym Yanell Thibodeaux
(defendant) appeals from the judgment entered upon his
conviction of second degree murder. Defendant contends that
there was insufficient evidence to support a finding that he acted
with implied malice and instructional error. He contends that
jury instruction CALCRIM No. 520 was incomplete and should
have been modified sua sponte, by the trial court. He also
contends that the trial court erred in failing to give a sua sponte
“Dewberry instruction.”1 Defendant additionally asks that we
review the sealed transcript of the trial court’s in camera review
of materials sought in discovery. We have reviewed the sealed
transcript and find no abuse of discretion. We further find no
merit to defendant’s other contentions and affirm the judgment.

BACKGROUND
Defendant was charged with the murder of Kahlil
Williams2 in violation of Penal Code section 187, subdivision (a),3
as well as firearm enhancements under section 12022.53,
subdivisions (b), (c), and (d).4 A jury found defendant guilty of

1 See People v. Dewberry (1959) 51 Cal.2d 548 (Dewberry).

2 As Kahlil Williams and his sister Britney Williams were
mentioned throughout trial, we will refer to them both by their
first names to avoid confusion.

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

4 The prosecutor dismissed the section 12022.53,
subdivisions (b) and (c), allegation sometime prior to the verdict.

2
second degree murder and found true the section 12022.53,
subdivision (d), allegation that defendant personally and
intentionally discharged a firearm which caused great bodily
injury and death to the victim. On June 24, 2019, the trial court
denied defendant’s motion for new trial and sentenced him to 15
years to life in prison, plus 20 years pursuant to section 12022.53,
subdivision (c), in place of the stricken enhancement under
section 12022.53, subdivision (d). Defendant was awarded 808
actual days of custody credit, and ordered to pay fines, fees, and
victim restitution.
Defendant filed a timely notice of appeal from the
judgment.

Prosecution evidence
Trayshawn Davis (Davis)
Davis was present and clearly saw defendant shoot Davis’s
best friend Kahlil on April 7, 2017, when the two friends were 16
or 17 years old. Davis had known Kahlil for three years and had
been staying with him for two days in Kahlil’s family home in
Lancaster. Davis also knew Kahlil’s sister Britney and two of his
brothers, including Terrell Scott (Scott) who was also present
that night with defendant.
Davis testified that he and Kahlil had been “hanging out”
in the garage, each sitting on one of two ice chests, when a few
minutes before 11:00 p.m., defendant entered the garage with a
“crazy look in his eye.” Defendant was holding a gun in his right
hand and waving it back and forth, pointing it at Davis, then at
Kahlil and back several times as he stood about five to seven feet
away from them. Though it seemed longer, Davis thought that
defendant waved the gun for about three minutes. Davis had

3
never seen a real gun before, and he was scared. Davis did not
see a phone in defendant’s hand, nor did he see defendant texting
or making a call while he was in the garage. As Kahlil said to
defendant, “Don’t wave a gun unless you’re going to use it,”
defendant focused on Kahlil, pointed the gun at him and shot
him. Defendant then dropped the gun and said, “I messed up,”
and, “Damn. I’m going to jail for life.” Davis, in shock, said, “Oh,
you killed the homie,” and ran outside and back again.
Initially Davis thought it had been an accident, but he
changed his mind when he realized he had seen defendant point
the gun at Kahlil and pull the trigger. Kahlil never grabbed for
the gun, did not try to pull or wrestle it away from defendant,
and at no point did he even touch the gun. It appeared to Davis
that defendant shot on purpose, not accidentally.
When the police arrived, everyone was taken to the station
and fingerprinted. The next morning, Davis was interviewed by
Detectives Carillo and Torres at the Lancaster Sheriff’s station.
Davis told the detectives that he did not think that defendant
killed Kahlil on purpose, and thought defendant was playing
around when he pointed the gun. He thought it was an accident
because defendant seemed to feel “really bad.”
A recording of Davis’s interview with the detectives was
played for the jury during his cross-examination. Davis told the
officers that it was Kahlil’s older brother, whose name he did not
know, who shot him. Davis had first seen this person just two
days earlier. Davis told detectives that the car parked in front of
the garage belonged to Kahlil’s other brother Terrell, who was
not the one who shot Kahlil. Davis said the one who shot Kahlil
was wearing a red hat. Describing what happened, Davis said:
“His brother comes pointing it (INAUDIBLE). Pointing it at him

4
and he says don’t point that at me unless you’re going to use it
and it went off. It didn’t seem like it was on purpose because it
looked like -- I don’t even know how to describe it. It seemed like
(INAUDIBLE) pulled (INAUDIBLE).” Asked what the shooter
did, Davis replied, “Shot him. He just came up to him and
pointed the gun and shot him,” and, “That was, that is exactly
how the story was. And he sat there (INAUDIBLE) they were
playing around or (INAUDIBLE).” Davis explained that
defendant, whom other witnesses testified was like an older
brother to Khalil said nothing before firing, and, “That’s why I
believe it was an accident, but then it was like, but come on now.
He shouldn’t never have pointed that (INAUDIBLE). They tell
you not to play with guns for a reason.”

Terrell Scott
Scott testified that he lived in the Lancaster family home
with his grandmother Lina West, his sister Britney, brother
Kahlil, his aunt Cassandra, and his girlfriend Vertasha Banks.
Scott had been friends with defendant for about two or three
years. Defendant often visited and was considered a friend of the
family. They were close, had no issues, and defendant called
Kahlil “little brother.”
On April 7, 2017, Scott and defendant arrived in the early
evening. Scott was in the kitchen until sometime between 10:30
and 11:00 p.m., and then went out to his car to smoke. He left by
passing through the garage, where he saw Kahlil sitting on an ice
chest. Davis was standing toward the back of the garage near
the washing machine. Since it was the first time he had seen
Kahlil all day, he greeted him with a handshake, said, “I love
you, bro,” before going to his car. From the car Scott could see

5
defendant and Kahlil through the partially open garage door. He
saw defendant walk up to Kahlil and give him a nudge as though
to ask, “What’s up, bro.” Scott could see defendant only from the
torso down, and he did not see anything in his right hand.
Scott was looking down when he heard a gunshot. He
looked up and saw his brother fall to the ground. He had seen no
fighting or punching, and had heard no yelling. He did not see a
gun in defendant’s hand or on the ground. Defendant walked
toward Scott and said, “Bro, I’m gone. I just killed my baby
brother,” as Davis ran back and forth, screaming, “He shot K-
Dubb. He shot K-Dubb.”5 Defendant appeared to be in shock,
and although he appeared to be apologetic, he did not say he did
not mean to do it. Defendant then walked to the middle of the
street, dropped to his knees, and put his hands on his head.
Scott was arrested as a suspect. He heard later that
defendant had accused him. Scott knew that defendant carried a
gun, and knew that he got it in 2016, after being burglarized.
However, he did not know defendant was carrying a gun that
night.

Vertasha Banks (Banks)
Banks testified that earlier that night, while her three-
year-old son was playing with defendant and hit something in
defendant’s pocket, Banks looked and saw the weapon. She then
made eye contact with defendant, and gave him “a look.”
Defendant and Scott then walked out to the garage together. A
short while later she heard a gunshot. She went outside, saw a
body on the ground and saw defendant running toward the

5 Kahlil’s nickname was K-Dubb.

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street, looking scared. He fell to the ground with his hands on
his head. Davis was screaming, “Oh, my god. Oh, my god.”
Defendant then approached the garage with a gun in his hand.
Banks told him to back up, and he slowly knelt down, put the gun
on the ground, and then proceeded to walk toward her.
Defendant said, “I killed my brother,” and, “I’m sorry. I’m so
sorry.” Banks called the police, who arrived within minutes.
Banks spoke to two detectives at the Lancaster Sheriff’s
station around 9:00 a.m. the next day. When her recorded
statements were read to her, she agreed that she must have told
them that defendant said, “I didn't mean to do it. He just
grabbed it out of my hand, and it went off.” She also agreed that
she must have told the detectives that she saw defendant’s phone
on the ground that night, although she did not recall doing so.
She knew that defendant owned an iPhone and had a red hat.

Cassandra Robinson (Robinson)
Robinson testified that she had been in the garage with her
nephew Kahlil and Davis that night, and within seconds of
returning to the house, heard a gunshot. She ran back to the
garage, saw her nephew on the ground, and lay next to his body.
Scott and defendant tried to drag her off, and Davis helped her
up. She saw the gun on the floor near the front of the garage,
picked it up, and hid it in the mailbox. When the police arrived,
she told them where it was. Davis told her that Kahlil had killed
himself, someone else said something about a robbery, and
another person said something about messing around with her
niece. Robinson picked up the gun, knowing she should not, but
she knew her nephew had not killed himself.

7
 The investigation
Detective Torres recovered the gun from the mailbox, and
observed live rounds in the magazine, that the hammer was
cocked and the safety was off. He also recovered Kahlil’s cell
phone from under his body, and an expended bullet, and shell
casing from the scene. Both defendant’s and Robinson’s cell
phones were recovered from the garage floor.
Deputy sheriffs at the scene had Scott under arrest as the
suspect, because they were told that Kahlil had been shot by his
brother. After the detectives learned that defendant was Kahlil’s
“play brother,” Scott was released.
Detectives Torres and Carillo, interviewed Banks the next
morning. Banks reported defendant’s statement: “I didn’t mean
to do it. He just grabbed it out of my hand, and it went off.”
A Sheriff’s Department firearms analyst examined
defendant’s gun and found it functional, fired normally, and its
safety features were functioning properly. He explained that the
gun had a thumb safety decocker, which if pushed downward,
allowed the hammer, if cocked, to fall forward without firing.
Once the safety is released, the trigger would have to be pulled
fully rearward with constant pressure in order to fire. Once the
gun was fired in double action, that is, cocked, it would thereafter
fire in single action, which means by simply pulling the trigger
all the way back without cocking the gun again. The pressure
required to pull trigger in double action was a little over ten
pounds, and six pounds in single action. Defendant’s gun was
test-fired, and it was determined that the recovered bullet and
cartridge casing had been fired from it.
The autopsy revealed that Kahlil died of a single gunshot
wound after the bullet entered the side of his nose, traveled

8
through his brain, and exited the back of his head. There was
unburned gunpowder stippling around the entry wound, which
indicates that the gun was 18 inches or less from Kahlil’s face
when it was fired.

Defense evidence
Defendant on direct examination
Defendant testified that he was seven or eight years older
than Kahlil who he had known for about three years, and who he
referred to as his little brother. In 2016, defendant lived with
Scott and Banks in an apartment which had been burglarized a
few times. The burglar was someone known as “Hollywood.”
Defendant carried the gun for protection from Hollywood, who
had made threats and lived in the same apartment building.
Defendant had the gun with him that night because earlier he
had planned to retrieve mail and get something for Banks at the
old apartment.
Defendant and Scott had spent most of the day together.
After Banks’s son hit defendant’s jeans pocket and felt the gun,
defendant intended to put the gun in his backpack in the car.
That was about 10:35 or 10:40 p.m.
Defendant walked out through the door that leads into the
garage, while texting on his phone. He claimed that the light was
not on in the garage, and the only person he saw there was
Kahlil. Defendant held his cell phone in his left hand as he
texted. The gun was in his right pocket.6 Kahlil was sitting on
the ice chest and greeted him with, “What’s up, big bro?” They

6 Defendant presented his phone records showing that he
began texting “Shavera” at 10:44 p.m.

9
shook hands and Kahlil said, “You have a burner [meaning gun]
on you? Let me see it.” Kahlil leaned forward, grabbing at the
gun. Defendant grabbed back. Kahlil grabbed the handle of the
gun, pulled it one way, while defendant pulled the handle the
other way, upward toward his waist. Defendant then heard “a
pop going off” and saw Kahlil fall. Defendant dropped the gun
and his phone, and ran to the street. Defendant denied pointing
the gun at Kahlil or at Davis, and claimed he did not know that
Davis was in the garage. Defendant denied ever having had
arguments or problems with Kahlil, and claimed that he did not
say anything to Kahlil just before the shooting.

Defendant on cross-examination
Defendant said he was not looking at Kahlil but was still
looking at his phone when the gun fired. He sent his last text at
about 11:00 p.m., and the gun fired around 11:00 or 11:02 p.m.
Defendant denied having lied to the detectives who interviewed
him, but admitted that he did not tell them that he had a gun or
that it was his gun that shot Kahlil. He also admitted that the
detectives asked what happened to Kahlil and he told them, “I
didn’t never said that. I didn’t say that. I didn’t see nobody shoot
anybody. I never said that. And I put my hand on the Bible. I
never said that I seen nothing. I said that I looked down. I seen
his hoody and blood.” Defendant testified that this was not a lie
because everything happened so fast that he really did not know
what had happened, and he was scared. Defendant explained
that he said what he did to the detectives because he not see
anything, as he was looking at his phone, not at Kahlil, even
when Kahlil grabbed the gun, but he saw Kahlil in his peripheral
vision.

10
 Defendant was released after that interview. Defendant
did not know whether Scott had been arrested, but since he heard
him testify to that effect at trial, he guessed they arrested him.
Defendant denied telling a deputy on the scene that Scott had
done it. Defendant then admitted that he found out that Scott
had been arrested when he returned to the house after his
interview with the detectives. Defendant was taken back to the
sheriff’s station for a second interview soon thereafter. The
detectives asked whether Scott had shot Kahlil. Defendant
replied: “I never looked behind me. I never -- after I seen him
down, I was just -- I don’t know. I don’t want to believe Scott did
it. I can’t say he did. I’m not going to say, ‘yeah, he did.’ I didn’t
see it.”
Defendant heard Banks testify that he told her that Kahlil
grabbed the gun out of his hand. But defendant said Kahlil did
not grab it from his hand; he grabbed it from his pocket.
Defendant explained that after the gun was out of his pocket,
Kahlil grabbed the barrel of the gun, which was then facing him.
Defendant explained the Kahlil never managed to pull the gun
all the way out of defendant’s pocket, because as it came out,
defendant grabbed it.
Defendant testified that Davis was not truthful when he
testified that defendant had waved the gun.

Firearms expert
The defense also called David Kim, an independent forensic
firearms examiner retired from the Sheriff’s Department. He
testified that he examined the gun recovered from the crime
scene, and explained the difference between a double action and a
single action function. He added that he had seen deputy

11
trainees fire double action semiautomatic pistols accidentally
when he worked at the sheriff’s academy.
Defense counsel asked Kim a hypothetical question based
on the facts of this case about the amount of force needed to pull
the trigger of the gun. Kim’s opinion was that it would depend
upon if the person had his hand on the trigger. If so, he could
pull it without realizing it. He explained his past experiments for
purposes of safety instruction, and found that when he allowed
inexperienced trainees to grab a gun from a table, they usually
did so with a finger on the trigger. Their finger just
automatically went to the trigger.
DISCUSSION

I. Substantial evidence of second degree murder
Defendant contends that the evidence was insufficient to
support a finding that defendant acted with implied malice.
“In assessing the sufficiency of the evidence, we review the
entire record in the light most favorable to the judgment to
determine whether it discloses evidence that is reasonable,
credible, and of solid value such that a reasonable trier of fact
could find the defendant guilty beyond a reasonable doubt.
[Citations.]” (People v. Bolin (1998) 18 Cal.4th 297, 331, citing
People v. Johnson (1980) 26 Cal.3d 557, 578 and Jackson v.
Virginia (1979) 443 U.S. 307, 319-320.) We “presume in support
of the judgment the existence of every fact the trier could
reasonably deduce from the evidence. [Citation.]” (People v.
Jones (1990) 51 Cal.3d 294, 314.) We do not reweigh the evidence
or resolve conflicts in the evidence. (People v. Young (2005) 34
Cal.4th 1149, 1181.) This standard applies whether direct or
circumstantial evidence is involved. (People v. Kraft (2000) 23

12
Cal.4th 978, 1053.) “An appellate court must accept logical
inferences that the jury might have drawn from the
circumstantial evidence. [Citation.]” (People v. Maury (2003) 30
Cal.4th 342, 396.) Reversal on a substantial evidence ground “is
unwarranted unless it appears ‘that upon no hypothesis
whatever is there sufficient substantial evidence to support [the
conviction].’ [Citation.]” (People v. Bolin, supra, 18 Cal.4th at
p. 331.)
Second degree murder is the unlawful killing of a human
being with malice aforethought that is not willful, deliberate and
premeditated. (People v. Nieto Benitez (1992) 4 Cal.4th 91, 102
(Nieto Benitez); §§ 187, subd. (a), 189.) Malice may be express or
implied. (§ 188; Nieto Benitez, at p. 102.) Malice is implied when
the defendant kills as a result of a deliberate and intentional act
that is naturally dangerous to human life, with conscious
disregard for life. (People v. Martinez (2003) 31 Cal.4th 673, 684.)
Implied malice requires that the defendant act with a subjective
awareness of a high degree of risk to life. (People v. People v.
Watson (1981) 30 Cal.3d 290, 296, 300.) It is not enough that a
reasonable person would have been aware of the risk. (Id. at
pp. 296-297.)
Malice may be, and usually must be, proved by
circumstantial evidence. (See People v. Lashley (1991) 1
Cal.App.4th 938, 945-946; People v. James (1998) 62 Cal.App.4th
244, 277.) A person who kills another “does not often declare his
state of mind either before, at, or after the moment he shoots.
Absent such direct evidence, the intent obviously must be derived
from all the circumstances of the attempt, including the putative
killer’s actions and words. Whether a defendant possessed the

13
requisite intent to kill is, of course, a question for the trier of
fact.” (People v. Lashley, supra, at pp. 945-946.)
As respondent observes, “the testimony of a single witness
is sufficient to uphold a judgment even if it is contradicted by
other evidence, inconsistent or false as to other portions.
[Citation.]” People v. Leigh (1985) 168 Cal.App.3d 217, 221; see
People v. Rincon-Pineda (1975) 14 Cal.3d 864, 885.)
Here, the evidence shows that defendant entered the
garage, approached Kahlil and Davis holding a gun in his right
hand. He waved it back and forth between the two youths while
pointing the gun toward them for about three minutes. As soon
as Kahlil told defendant not to wave a gun unless he intended to
use it, defendant focused on Kahlil, pointed the gun at him
within 18 inches of his face, and pulled the trigger. Davis saw
defendant’s finger pull the trigger, and it appeared purposeful,
not accidental.
Respondent points out that there was substantial evidence
that defendant harbored a conscious disregard for the danger to
human life with his actions and thus demonstrated implied
malice. “[B]randishing a loaded firearm at a person is an act
dangerous to human life. [Citation.]” (People v. McNally (2015)
236 Cal.App.4th 1419, 1425.) Here, the evidence showed that
defendant knew the gun was dangerous to human life. When
Banks made eye contact with defendant and gave him “a look”
after her child touched defendant’s gun, he immediately got up
and went to the garage. Once there, he pointed the gun at the
two young men while waving it back and forth, before pulling the
trigger. Defendant testified that he obtained the gun in 2016,
and had owned the gun for at least six months. He did not claim

14
to be inexperienced with guns; nor did he claim that he thought
the gun was unloaded or inoperable.
Defendant acknowledges that the jury apparently did not
believe his testimony and rejected his defense. Nevertheless, he
suggests that Davis’s testimony was “incredible, unreliable, and
wholly unworthy of belief [and] contradicted not only by other
witnesses and physical evidence, but by his own statements to
police hours after the shooting.” Defendant invites this court to
give more weight to evidence that defendant loved Kahlil, had not
argued with him, and was playing around with the loaded
weapon when it accidentally fired.
We do not reweigh the evidence or resolve conflicts in the
evidence. (People v. Young, supra, 34 Cal.4th at p. 1181.)
“Conflicts and even testimony which is subject to justifiable
suspicion do not justify the reversal of a judgment, for 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 upon
which a determination depends. [Citation.] We resolve neither
credibility issues nor evidentiary conflicts; we look for substantial
evidence. [Citation.]” (People v. Maury, supra, 30 Cal.4th at
p. 403.) “‘“To warrant the rejection of the statements given by a
witness who has been believed by a [jury], there must exist either
a physical impossibility that they are true, or their falsity must
be apparent without resorting to inferences or deductions.”’
[Citations.]” (People v. Maciel (2013) 57 Cal.4th 482, 519.)
Furthermore, “a trier of fact is permitted to credit some portions
of a witness’s testimony, and not credit others.” (People v.
Williams (1992) 4 Cal.4th 354, 364.)
Defendant has opined that Davis’s testimony was
improbable and “fraught with uncertainty,” but he does not

15
contend or demonstrate that Davis’s testimony was physically
impossible or false without resorting to inferences or deductions.
Moreover, Davis’s testimony was corroborated by compelling
evidence of defendant’s consciousness of guilt. The jury may infer
a consciousness of guilt from a defendant’s admitted lies to police,
as well as from the many inconsistencies in his testimony at the
trial. (People v. Dykes (1961) 198 Cal.App.2d 75, 80.) When the
detectives asked whether Scott had been the shooter, defendant
replied: “I never looked behind me. I never -- after I seen him
down, I was just -- I don’t know. I don’t want to believe Scott did
it. I can’t say he did. I’m not going to say, ‘yeah, he did.’ I didn’t
see it.” When the detectives asked what happened to Kahlil,
defendant told them, “I didn’t see nobody shoot anybody. I never
said that. And I put my hand on the Bible. I never said that I
seen nothing. I said that I looked down. I seen his hoody and
blood.”
At trial, defendant claimed that this was not a lie because
he was not looking at Kahlil when he shot him; he was looking at
his phone and was texting. Defendant claimed not to know that
Scott had been arrested until he heard Scott’s testimony in court,
but then testified that he found out about the arrest when he
returned to Scott’s house after defendant’s first police interview.
Defendant admitted at trial that he lied to detectives when he
was asked how Kahlil died, saying he did not know.
Defendant told the detectives that Kahlil probably killed
himself, but claimed at trial that it was not a lie, because he did
not know who pulled the trigger, and that it was not misleading
because he did not know who did what because it happened so
fast. Defendant then admitted that he had said to the detectives,
“To be honest, I’m going to say he probably shot himself because

16
he was the only one in the garage.” When one of the detectives
said, “It’s impossible,” defendant told him, “I’m telling you the
honest God truth.”
When manifestly and deliberately false statements are
made about matters within the defendant’s own knowledge and
which relate materially to the issue of his guilt or innocence,
“[s]uch falsifications cogently evidence consciousness of guilt and
suggest that there is no honest explanation for incriminating
circumstances, and thus are admissions of guilt. [Citations.]”
(People v. Osslo (1958) 50 Cal.2d 75, 93.)
Defendant contends that the prosecutor conceded in closing
argument that defendant did not intend to kill Kahlil and that
the killing was accidental.7 The prosecutor said, “This is a second
degree murder case. Okay. This has not been charged as first
degree murder. It’s not been charged as a willful, deliberate,
premeditated murder. This is second degree murder . . . . This is
an implied malice case. I’m not going to sit up here tell you that
this is express malice case.” The prosecutor then gave some
examples of implied malice, and erroneously concluded that if
there was an intent to kill, that would be express malice and first
degree murder.
Second degree murder is the unlawful killing of a human
being with either express or implied malice aforethought, but
which is not willful, deliberate and premeditated. (Nieto Benitez,
supra, 4 Cal.4th at p. 102; §§ 187, subd. (a), 188, 189.) A short
time after the prosecutor’s misstatement, when defense counsel

7 Respondent does not concede here that the shooting was
accidental.

17
objected to a different statement by the prosecutor, the court
admonished the jury as follows: “Ladies and gentlemen, with
respect to the law, I’ve given you the law as to the charge of
murder, the lesser of involuntary manslaughter, and excusable
justification or accident. You follow the law as I give it to you.
This is the attorneys’ argument and their interpretation of the
law, but you follow the law I gave you in that packet.” The court
had earlier instructed the jury with CALCRIM No. 200, which,
among other things, told the jury, “You must follow the law as I
explain it to you, even if you disagree with it. If you believe that
the attorneys’ comments on the law conflict with my instructions,
you must follow my instructions.” The court had also previously
instructed the jury that if it found the defendant guilty of
murder, it would be murder of the second degree. The court
further instructed with CALCRIM 520, in relevant part as
follows:
“The defendant is charged with murder in violation of
Penal Code section 187. To prove that the defendant
is guilty of this crime, the People must prove that: 1.
The defendant committed an act that caused the
death of another person; 2. When the defendant
acted, he had a state of mind called malice
aforethought; AND 3. He killed without lawful excuse
or justification. “There are two kinds of malice
aforethought, express malice and implied malice.
Proof of either is sufficient to establish the state of
mind required for murder. . . . .” (Italics added.)

The court then defined express and implied malice. The
court also instructed the jury with CALCRIM No. 510 that

18
“[d]efendant is not guilty of murder if he killed someone as a
result of accident or misfortune,” along with an explanation how
to determine accident or misfortune. And the court instructed
with CALCRIM Nos. 580 and 983, defining and explaining
involuntary manslaughter.
“It is fundamental that jurors are presumed to be
intelligent and capable of understanding and applying the court’s
instructions. [Citation.]” (People v. Gonzales (2011) 51 Cal.4th
894, 940.) As the jurors rejected defendant’s claim of accident
and found defendant guilty of murder, we assume that the jury
found either express or implied malice, and as we have discussed
above, substantial evidence supported either finding.

II. CALCRIM No. 520
Defendant contends that CALCRIM No. 520, which defines
implied malice, fails to include that the defendant’s conduct must
have caused a “high probability of death, and thus giving the
instruction was error. He argues that the error was a failure of
the court’s sua sponte duty to instruct the jury on the elements of
the charged crime. Defendant nevertheless acknowledges that
over more than three decades, several courts of appeal have
rejected the basic claim he raises here. (See, e.g., People v. Curtis
(1994) 30 Cal.App.4th 1337, 1353-1354; People v. Cleaves (1991)
229 Cal.App.3d 367, 377-378; People v. McCarnes (1986) 179
Cal.App.3d 525, 530-532.)
“[S]econd degree murder based on implied malice has been
committed when a person does ‘“‘an act, the natural consequences
of which are dangerous to life, which act was deliberately
performed by a person who knows that his conduct endangers the
life of another and who acts with conscious disregard for life’”

19
. . . .’ [Citations.]” (People v. Watson, supra, 30 Cal.3d at p. 300.)
This the definition of implied malice contained in CALCRIM
No. 520, read to the jury as follows:
“The defendant acted with implied malice if: 1. He
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 4. He deliberately
acted with conscious disregard for human life. Malice
aforethought does not require hatred or ill will
toward the victim. It is a mental state that must be
formed before the act that causes death is committed.
It does not require deliberation or the passage of any
particular period of time.” (Italics added.)

In Nieto Benitez, our Supreme Court rejected a challenge to
CALJIC No. 8.31, the predecessor to CALCRIM No. 520, which
was made on the same ground that defendant posits here: that it
“misstates the law because the instruction omits a requirement
that defendant commit the act with a high probability that death
will result.” The court noted that a former version of CALJIC
No. 8.31 included the “high probability” language, and that in
People v. Dellinger (1989) 49 Cal.3d 1212, 1217, the court had
expressly approved the revised version which omitted that
language in favor of the “dangerous to life” language. (Nieto
Benitez, supra, 4 Cal.4th at p. 111.) The court explained that the
two expressions, “‘an act, the natural consequences of which are
dangerous to life’ and ‘an act [committed] with a high probability
that it will result in death’ are equivalent [and] embody the same
standard. [Citations.]” (Id. at p. 110.) It follows that the

20
language of CALCRIM No. 520 is a correct statement of law, with
the result being that the trial court had no sua sponte obligation
to modify the instruction or insert additional language. (See
People v. Lee (2011) 51 Cal.4th 620, 638.)
Moreover, a trial court is not required to give instructions
which are duplicative of standard jury instructions. (People v.
Earp (1999) 20 Cal.4th 826.) Nevertheless, defendant contends
that his trial counsel rendered ineffective assistance by failing to
request the court do just that. It is the defendant’s burden on
appeal to demonstrate that trial counsel was inadequate and that
prejudice resulted. (People v. Lucas (1995) 12 Cal.4th 415, 436.)
Prejudice is shown by “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Strickland v. Washington (1984) 466
U.S. 668, 694.) Defendant has failed to meet the first prong of his
burden, as counsel is not ineffective by failing to request
unnecessary and duplicative instructions. (People v. Lucero
(2000) 23 Cal.4th 692, 729.) Furthermore, it is unlikely that the
trial court would have granted the request to give an unnecessary
instruction, as CALCRIM No. 520 properly instructed the jury on
this point.
As for prejudice, defendant argues that while horseplay
with a gun or pointing it at a person can potentially result in
great bodily injury, it does not necessarily have a high probability
of death. Even if we accept that defendant was engaged in mere
horseplay, it cannot be said that pointing a loaded firearm within
18 inches of a person’s face, and then pulling the trigger, would
not necessarily pose a high probability of death. We discern no
reasonable probability that defendant would have received a
different result had counsel requested the additional instruction.

21
Defendant’s claim of ineffective assistance of counsel therefore
fails.

III. Alleged Dewberry error
Defendant contends that the trial court erred in failing to
give a “Dewberry instruction” sua sponte. In Dewberry, supra, 51
Cal.2d 548, the defendant requested the trial court to instruct the
jury that if it had a reasonable doubt whether defendant was
guilty of murder or manslaughter, it could convict him only of
manslaughter. The California Supreme Court reversed the
defendant’s conviction because the trial court had rejected the
request, even though it had given a similar instruction with
regard to the degrees of murder. (Id. at p. 554.) The court
explained that “when the evidence is sufficient to support a
finding of guilt of both the offense charged and a lesser included
offense, the jury must be instructed that if they entertain a
reasonable doubt as to which offense has been committed, they
must find the defendant guilty only of the lesser offense.” (Id. at
p. 555; see § 1097.)
Some years later, the Supreme Court clarified Dewberry’s
principle that “a criminal defendant is entitled to the benefit of a
jury’s reasonable doubt with respect to all crimes with lesser
degrees or related or included offenses. [Citation.]” (People v.
Musselwhite (1998) 17 Cal.4th 1216, 1262 (Musselwhite). The
court held that a jury is adequately instructed as to this principle
if the trial court gives “several generally applicable instructions
governing its use of the reasonable doubt standard” which have
the effect of requiring the jury to give the defendant the benefit of
any reasonable doubt as to any lesser included or related offenses
or lesser degrees. (Id. at p. 1262-1263.) So long as the trial court

22
gives such instructions, it is not required to give an instruction
(such as CALJIC No. 8.71) which expressly applies the Dewberry
principle. (People v. Friend (2009) 47 Cal.4th 1, 55; see
Musselwhite, at p. 263.)
Our Supreme Court more recently held that an instruction
which is nearly identical to CALJIC No. 2.02 provides an
adequate benefit-of-the-doubt instruction under Dewberry.
(People v. Buenrostro (2018) 6 Cal.5th 367, 430 (Buenrostro),
citing Musselwhite, supra, 17 Cal.4th at pp. 1262-1263, and
People v. Friend, supra, 47 Cal.4th at p. 55.) Here, the trial court
instructed with CALCRIM No. 225, which corresponds to
CALJIC No. 2.02 (see People v. Samaniego (2009) 172
Cal.App.4th 1148, 1171, fn. 12), as follows:
“The People must prove not only that the defendant
did the act charged, but also that he acted with a
particular intent and mental state. The instruction
for the crime and allegation explains the intent and
mental state required. [¶] An intent and mental
state may be proved by circumstantial evidence. [¶]
Before you may rely on circumstantial evidence to
conclude that a fact necessary to find the defendant
guilty has been proved, you must be convinced that
the People have proved each fact essential to that
conclusion beyond a reasonable doubt. [¶] Also,
before you may rely on circumstantial evidence to
conclude that the defendant had the required intent
and mental state, you must be convinced that the
only reasonable conclusion supported by the
circumstantial evidence is that the defendant had the
required intent and mental state. If you can draw

23
 two or more reasonable conclusions from the
circumstantial evidence, and one of those reasonable
conclusions supports a finding that the defendant did
have the required intent and mental state and another
reasonable conclusion supports a finding that the
defendant did not, you must conclude that the
required intent and mental state was not proved by
the circumstantial evidence. However, when
considering circumstantial evidence, you must accept
only reasonable conclusions and reject any that are
unreasonable.” (Italics added.)

Like CALJIC No. 2.20, CALCRIM No. 225 conveyed the same
requirements as a Dewberry instruction. (See Buenrostro, supra,
6 Cal.5th at p. 430.) It communicated the requirement of giving
defendant the benefit of a reasonable doubt, and thus adequately
“fulfilled the same function as the instruction proffered by the
defendant in [Dewberry].” (Musselwhite, supra, 17 Cal.4th at
p. 1263.)
Furthermore, the trial court gave “several generally
applicable instructions governing its use of the reasonable doubt
standard” as follows (Musselwhite, supra, 17 Cal.4th at p. 1262):
“A defendant in a criminal case is presumed to be
innocent. This presumption requires that the People
prove a defendant guilty beyond a reasonable doubt.
Whenever I tell you the People must prove
something, I mean they must prove it beyond a
reasonable doubt”; and, “Unless the evidence proves
the defendant guilty beyond a reasonable doubt, he is

24
 entitled to an acquittal and you must find him not
guilty.”
(CALCRIM No. 220.)

“Before you may rely on circumstantial evidence to
conclude that a fact necessary to find the defendant
guilty has been proved, you must be convinced that
the People have proved each fact essential to that
conclusion beyond a reasonable doubt.”

(CALCRIM No. 224.)
“The defendant may not be convicted of any crime
based on his out-of-court statements alone”; and,
“You may not convict the defendant unless the People
have proved his guilt beyond a reasonable doubt.”

(CALCRIM No. 359.)
“The defendant is not guilty of murder or
manslaughter if he killed someone as a result of
accident or misfortune”; and, “The People have the
burden of proving beyond a reasonable doubt that the
killing was not excused. If the People have not met
this burden, you must find the defendant not guilty of
murder or manslaughter.”

(CALCRIM No. 510.)
“When a person commits an unlawful killing but does
not intend to kill and does not act with conscious
disregard for human life, then the crime is
involuntary manslaughter”; and, “You may not find

25
 the defendant guilty unless all of you agree that the
People have proved that the defendant committed at
least one of these alleged acts and you all agree that
the same act or acts were proved.”

(CALCRIM No. 580.)
“You will be given verdict forms for guilty and not
guilty of second degree murder and involuntary
manslaughter. You may consider these different
kinds of homicide in whatever order you wish, but I
can accept a verdict of guilty or not guilty of
involuntary manslaughter only if all of you have
found the defendant not guilty of second degree
murder. To return a verdict of guilty or not guilty on
a count, you must all agree on that decision. Follow
these directions before you give me any completed
and signed final verdict form. Return the unused
verdict forms to me, unsigned.

“1. If all of you agree that the People have proved
beyond a reasonable doubt that the defendant is
guilty of second degree murder, complete and sign
that verdict form. Do not complete or sign any other
verdict forms.

“2. If all of you cannot agree whether the defendant
is guilty of second degree murder, inform me that you
cannot reach an agreement and do not complete or
sign any verdict forms.

26
 “3. If all of you agree that the defendant is not guilty
of second degree murder but also agree that the
defendant is guilty of involuntary manslaughter,
complete and sign the form for not guilty of second
degree murder and the form for guilty of involuntary
manslaughter. Do not complete or sign any other
verdict forms.

“4. If all of you agree that the defendant is not guilty
of second degree murder but cannot agree whether
the defendant is guilty of involuntary manslaughter,
complete and sign the form for not guilty of second
degree murder and inform me that you cannot reach
further agreement. Do not complete or sign any other
verdict forms.

“5. If all of you agree that the defendant is not guilty
of second degree murder and not guilty of involuntary
manslaughter, complete and sign the verdict forms
for not guilty of both.”

(CALCRIM No. 642.)
We conclude that the CALCRIM reasonable doubt
instructions quoted above, adequately communicated to the jury
their duty to give the defendant the benefit of any reasonable
doubt as to the lesser included offense of manslaughter, as
clarified in Buenrostro, supra, 6 Cal.5th at page 430, People v.
Friend, supra, 47 Cal.4th at page 55, and Musselwhite, supra, 17
Cal.4th at pages 1262-1263. We thus reject defendant’s claim of
Dewberry error.

27
 Furthermore, defendant has not demonstrated prejudice.
The test of prejudice due to Dewberry error is determined under
the standard of People v. Watson (1956) 46 Cal.2d 818, 836, which
asks whether it is reasonably probable that, in the absence of the
error, the result would have been different. (Dewberry, supra, 51
Cal.2d at p. 558; People v. Crone (1997) 54 Cal.App.4th 71, 78.)
Under the Watson standard, it is defendant’s burden to
demonstrate the reasonable probability of a different result. (See
People v. Hernandez (2011) 51 Cal.4th 733, 746.) However,
despite having the burden to demonstrate prejudice, defendant
does not set forth any facts to support that claim and instead
merely concludes that the evidence of a conscious disregard of the
risk was not overwhelming, citing authority for the proposition
that evidence of guilt must be overwhelming to satisfy the
Watson standard.
The evidence of implied malice was compelling. Defendant
pointed a loaded firearm within 18 inches of Kahlil’s face and
then pulled the trigger. And if defendant was not already
conscious of the danger to human life before going to Kahlil’s
home that night, it was made plain to him by Banks, when she
gave him a look after her four-year-old son touched the gun in
defendant’s pocket. Defendant clearly got her message, as he
immediately left the house to put the gun in his backpack in
Scott’s car. Instead, however, defendant stood before the two
young men in the garage, waving and pointing the gun toward
their faces.
Defendant’s consciousness of the danger to human life was
further demonstrated by his claim that he continued to look at
his phone and to send text messages while allegedly trying to
prevent Kahlil from grabbing the loaded gun and pulling it out of

28
defendant’s pocket, seeing Kahlil only with his peripheral vision.
Defendant claimed he was still looking at his phone when the
gun fired, and had not said anything to Kahlil. Defendant’s own
account thus demonstrates reckless disregard for the danger,
“‘implying, actively, a willingness to injure and disregard of the
consequences to others, and, passively, more than mere
negligence, that is, a conscious and intentional disregard of duty.’
[Citation.]” (People v. Dellinger, supra, 49 Cal.3d at p. 1220.)
In sum, whether the jury believed Davis’s account or
defendant’s account, it is not reasonably probable that any
rational juror would entertain a reasonable doubt that defendant
harbored at least implied malice. Thus, we discern no reasonable
probability that an instruction which expressly told the jurors to
give defendant the benefit of any reasonable doubt between
murder and manslaughter would have changed the result.
Indeed, if the trial court had erred, we would find the error
harmless under either the Watson standard or the standard for
federal constitutional error under Chapman v. California (1967)
386 U.S. 18, 24.

IV. In camera review
Defendant asked that we review the sealed transcript of
the trial court’s in camera review of materials sought in a pretrial
Pitchess motion for discovery.8 Defendant sought information

8 See Pitchess v. Superior Court (1974) 11 Cal.3d 531. A
Pitchess motion “allow[s] criminal defendants to seek discovery
from the court of potentially exculpatory information located in
otherwise confidential peace officer personnel records. If a party
bringing what is commonly called a Pitchess motion makes a
threshold showing, the court must review the records in camera

29
from the personnel files of Los Angeles County Sheriff Deputy
Arnold Camacho relating to allegations of racial bias, violations
of constitutional rights, false arrests, dishonesty, lying, filing
false or misleading police reports, and fabricating charges or
evidence.
After hearing the argument of counsel, and based upon the
information presented, including the prosecutors indication that
he might call Deputy Camacho to testify, the trial court granted
the motion only as to any complaints of dishonesty, including, but
not limited to, false reports or fabrication of evidence. Although
Deputy Camacho did not ultimately testify, respondent agrees
that we should review the sealed transcript.
The 14 records produced in the trial court were not
retained, but in the in camera hearing, the trial court examined
and described each one, and stated reasons for its determination.
We find the transcript sufficiently detailed to review the trial
court’s discretion, without having to order the production of the
same documents in this court. (See People v. Mooc (2001)
26 Cal.4th 1216, 1228-1229.) We review the trial court’s
determination for an abuse of discretion. (People v. Jackson
(1996) 13 Cal.4th 1164, 1220-1221.) Upon review of the sealed
record of the in camera proceedings, we conclude the trial court
properly exercised its discretion in determining that the
documents produced complied with the scope of the Pitchess
motion, and that only one of the documents should be disclosed to
the defense.

and disclose to that party any information they contain that is
material to the underlying case. (See Evid. Code, §§ 1043, 1045.)”
(People v. Superior Court (Johnson) (2015) 61 Cal.4th 696, 705.)

30
 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.
CHAVEZ

We concur:

__________________________, P. J.
LUI

__________________________, J.
HOFFSTADT

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