People v. Garcia CA1/1

Filed 9/14/21 P. v. Garcia CA1/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or
ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,
Plaintiff and Respondent,
A157727
v.
ANICASIO GARCIA, (Alameda County
Super. Ct. No. 617033)
Defendant and Appellant.

Defendant Anicasio Garcia killed 18-year-old Nelson Diaz Velasquez
(Diaz), the boyfriend of S.E., Garcia’s close friend, by stabbing him once in the
heart. A jury convicted Garcia of second degree murder, and he was
sentenced to 15 years to life in prison. On appeal, Garcia claims the trial
court erred by refusing to instruct on involuntary manslaughter and self-
defense and by not allowing him to reargue in closing after the court altered a
jury instruction on murder it intended to give. Garcia also claims that the
prosecutor erred in closing argument and that cumulative error requires
reversal. We reject these claims and affirm.

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 I.
FACTUAL AND PROCEDURAL
BACKGROUND
A. Background
Garcia and S.E. were from the same town in Guatemala, and their
families were friends. In the spring of 2015, S.E. and her infant daughter
moved to Oakland. S.E. re-connected with Garcia, who already lived there.
S.E., who was about 18 years old at the time, and Garcia, who was nine years
older, began regularly spending time together. S.E. testified that she “always
knew [Garcia] as a good person who was never violent,” and S.E.’s mother
also offered the opinion that Garcia was not violent.
Later that year, S.E. met Diaz, who was the same age, at the church
she and Garcia attended. S.E. and Diaz quickly began dating. S.E. testified
that their relationship was “[s]ometimes good and also toxic at the same
time,” and they broke up and got back together several times. S.E. testified
that at one point or another during the relationship, Diaz had yelled at and
insulted her, cheated on her, and hit her.
S.E. testified that she continued to see Garcia “constantly” after
starting to date Diaz. Both she and Garcia, who testified in his own defense,
denied they were ever in a romantic relationship. Garcia admitted that he
had feelings for S.E. “[a]t some point,” but he was not in love with her. He
testified that they considered having a sexual relationship but decided not to
because “it would put an end to [their] friendship.”
In late 2015 or early 2016, S.E., her daughter, and her mother moved
with Diaz to Tennessee, where he had family. S.E.’s mother testified about
domestic abuse perpetrated by Diaz while they lived there. At one point, he
“locked [S.E.] up [in a room] and . . . was hitting her and wouldn’t let [S.E.’s
mother] in.” Another time, neighbors showed S.E.’s mother photographs of

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S.E. with bruising around her mouth, causing S.E.’s mother to believe Diaz
had hit S.E. Garcia testified that S.E. later told him that Diaz had hit her in
Tennessee.
S.E.’s mother also suspected Diaz had burned her granddaughter’s feet
with a cigarette. S.E.’s mother wanted to call the police, but Diaz threatened
to kill her and her family, and S.E. said not to report the incident because she
was afraid of him as well. S.E.’s mother testified that she later told Garcia
that Diaz had hit S.E. and burned S.E.’s daughter, and Garcia testified that
both S.E. and her mother told him about S.E.’s daughter being hurt while
they were still in Tennessee.
Concerned about her granddaughter’s safety, S.E.’s mother took the
baby back to Oakland. In March 2016, S.E. broke up with Diaz and also
moved back to Oakland, and she and Garcia began spending time together
again.
B. The Days Leading Up to the Murder
About two weeks before the murder, which occurred on May 27, 2016,
Diaz returned to Oakland as well. Diaz had told S.E.’s mother that he was
coming back to Oakland “to see who it was that [S.E.] was with and he was
going to kill that person,” which caused S.E.’s mother to fear for Garcia’s
safety. She could not remember, however, whether she ever expressed that
fear to Garcia.
The first time S.E. saw Diaz after he returned from Tennessee was at a
store where she had a job interview. After she finished the interview, she
returned to the building lobby and saw Diaz, who “tried to take [her] with
him by force.” Garcia, who had driven her there, helped her leave as Diaz
“was pulling on [her] and trying to take [her] to [Diaz’s] car.” Even after she
“managed to get into [Garcia’s] car, . . . [Diaz] was beating on the car trying

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to get [her] to come out.” Garcia testified that S.E. was “scared” and crying,
and he drove her away as quickly as he could. At the time, Garcia was
approximately five feet, two inches tall and weighed about 125 pounds, and
Diaz was five feet, five inches tall and weighed about 165 pounds.
Soon after this incident, Diaz proposed to S.E, and she accepted.
Garcia testified that the next time he saw her, she took off the ring to try to
hide it from him, and he perceived that “she wasn’t sure what she was doing.”
Indeed, less than a week after becoming engaged, S.E. decided to break up
with Diaz because he “was disloyal.” Specifically, he had sent her
photographs of himself with another woman.
Upset, S.E. told Garcia about the photographs and asked him to drive
her to Diaz’s home so she could return the ring. S.E. testified that Diaz
became angry after she returned the ring and told him she “no longer wanted
anything to do with him.” S.E. left Diaz’s home and returned to Garcia’s car,
a yellow Mustang, which was parked a few blocks away on a dead-end street.
As S.E. and Garcia prepared to leave, she noticed that Diaz had
followed her in his car. Diaz parked behind them, which blocked the
Mustang from leaving. Diaz, whom S.E. described as “look[ing] very
aggressive,” got out of his car and began hitting Garcia’s car and yelling
sexually vulgar things at S.E. According to Garcia, Diaz asked him whether
he had “fuck[ed] [S.E.] yet,” at which point Garcia told Diaz to go away
because he “[did not] want trouble with [Diaz].” Garcia testified that he was
“afraid,” but he “tried . . . to stay calm because [he] didn’t want to get into the
state that [Diaz] was in” and did not want to fight Diaz. Eventually, a
neighbor asked Diaz to move his car because he was blocking the driveway,
and he left.

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 The weekend before the murder, S.E. and Garcia went to the flea
market together. They saw Diaz, who beckoned to S.E. and “seemed angry.”
Wanting to avoid Diaz, Garcia and S.E. left and went to get French fries. As
they were waiting to be served, Diaz pulled up in his car and “was starting to
yell at [S.E.] again. He said she was a whore and he told her to fuck off.”
Diaz appeared “furious” and “really angry,” and Garcia’s “heart was beating
fast.” The cars behind Diaz started honking, and he drove away before
anything else happened.
C. The Murder
On the morning of May 27, S.E., who did not have her own cell phone,
wrote a Facebook message to Diaz. He responded that he wanted to see her
that evening, and they arranged to go on a date. Meanwhile, she and Garcia
also exchanged messages that day, in which she told him to “start getting
used to” “not seeing [her] or talking to [her].”
At the time, S.E. was living with her sister and her sister’s family at
107th and MacArthur in Oakland. Around 7:00 p.m., Diaz picked up S.E.
there in his green Honda sedan, and they went to get something to drink.
S.E. testified that Garcia’s car was not there when Diaz picked her up.
A bystander witness, Shawn B., was hanging out that night near a
department store across the street from S.E.’s apartment. He noticed a
yellow Mustang parked near a dumpster in the store’s parking lot. Shawn B.
testified that over a period of hours, he observed a “short Hispanic guy” in the
Mustang’s driver’s seat “slamming beers. . . . Drinking beers and drinking
and drinking and drinking and drinking and drinking.”
Diaz and S.E. returned around 9:00 p.m., and he parked in the
department store’s driveway. Noticing Garcia’s car in the store’s parking lot,

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Diaz told S.E., “ ‘[T]here’s your little friend.’ ” She and Diaz remained in his
car for about 15 minutes, talking.
Before S.E. went back to her apartment, Diaz gave her one of his cell
phones so she could confirm she had gotten inside safely, and he told her not
to talk to Garcia. Phone records showed that around 9:20 p.m., she called
Diaz’s other cell phone, and she kept him on the line as she walked to her
home.
Shawn B. saw the green Honda arrive and S.E. eventually exit and
walk away. He testified that as she was walking, “the yellow Mustang came
out [of] the parking lot and tried to block her off,” and it collided with another
vehicle parked on the street. Shawn B. saw the yellow Mustang stop, and
Garcia got out and approached the green Honda. The Honda moved forward,
but the Mustang was blocking it from proceeding.
At trial, Shawn B. testified that he saw Garcia reach the Honda and,
without provocation, “start[] punching [Diaz] through the [driver’s-side]
window.” Shawn B. testified that he observed Garcia throw two to three
punches, and he heard the other two men arguing angrily. The dumpster
was partially blocking Shawn B.’s view, and he did not see anything else
until Diaz, “holding his chest,” approached Shawn B. and stated he had been
stabbed. In contrast, in his preliminary-hearing testimony, which was read
into the record, Shawn B. said he “could hear punches” but did not actually
see any physical contact between Garcia and Diaz. And although shortly
after the murder Shawn B. told police he saw a knife, he testified at both the
preliminary hearing and trial that he never saw Garcia with a knife.
Meanwhile, S.E. had returned to the street after Diaz, who was still on
the line with her, told her that he “[had] a problem.” In her statements to
police, S.E. said that she observed Garcia had moved his car to block in Diaz.

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Diaz was still in his car with the window open, and Garcia tried to “grab” the
other man. Garcia was trying to open the door as Diaz tried to close it, and
Diaz had his hand positioned as if “he wanted to hit” Garcia. The door
opened, and Diaz “gave [Garcia] a kick.”
S.E. told police that she then saw Diaz get out of the car, and he and
Garcia began fighting. A memorial involving an unrelated death was located
by the dumpster in the department store’s parking lot and included several
liquor bottles. According to S.E., Diaz picked up some bottles and threw one
at Garcia as she tried to hold him back. Garcia ran back to his car, and Diaz
threw another bottle at him. S.E. told police that Diaz was clutching his
chest after he got out of the car. She believed that he had already been
stabbed, although she did not notice him bleeding. She also told police she
saw Garcia holding a “screw” when he was running back to his car.
At trial, S.E. described a different version of events. She testified that
Diaz was already outside his car when she returned to the street, and he
“was hitting [Garcia]” and did not seem to be hurt yet. She described Diaz as
“angry.” She also testified that she never saw Garcia with a weapon. And
while she told police that Garcia was the aggressor, because he approached
Diaz first, at trial she said she was not sure who started the fight because
when she returned, the men were already “hitting each other.”
D. The Aftermath and Physical Evidence
S.E. and Shawn B. both called 911. Police were dispatched at 9:23 p.m.
and arrived at the scene eight minutes later, after Garcia had already left.
Although S.E. initially told police at the scene that she did not know who had
hurt Diaz or what vehicle the perpetrator was driving, she soon told them
about Garcia and the yellow Mustang.

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 Diaz was taken to the hospital, where he died. The cause of death was
one stab wound to the heart. The forensic pathologist who performed the
autopsy testified that it was not possible to determine from the wound Diaz’s
position when he was stabbed, and he could have been either sitting down or
standing. The pathologist also testified that after being stabbed in the heart,
a person could continue for a short period of time to walk around, talk, and
even “engage in a fight.”
Later that night, Garcia was arrested at his home. He had significant
injuries to his face, and he was transported to the hospital. Several bones
around his cheek and eye were fractured, injuries that were likely caused by
“a harder object than a fist.” He also had a laceration on his cheek that
required stitches, and surgery for his face was scheduled for a later date. His
neurological assessment was normal, however.
At the scene, there was “a path of blood” between the driver’s side of
Diaz’s car and the memorial from the unrelated death. There was also blood
around the memorial and between the memorial and the middle of the street.
When the scene was processed, the engine of Diaz’s car was still running, the
headlights were on, and the driver’s-side window was down. A palm print
matching Garcia’s was found on the driver’s door. Diaz’s cell phone, which
had blood on it, was on the car’s passenger seat.1
The weapon used to stab Diaz was never located, but Garcia’s cell
phone contained a photograph of a knife, and GPS data showed that the
photograph was taken in the department store’s parking lot around 7:40 p.m.

1 The prosecutor argued in closing that the blood on the cell phone
indicated Diaz was stabbed while he was still in his car. On the other hand,
S.E. testified that she thought Diaz had the phone in his pocket when she
was trying to get him to stop fighting Garcia, and that it was possible Diaz
had gotten back into his car after the fight ended.

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on the night in question. A broken bottle with Diaz’s blood on it was located
in the yard of Garcia’s house.
E. Garcia’s Statements and the Defense Case
1. Garcia’s interrogation
After Garcia was treated for his injuries, he was transported to the
police station and interrogated. A blood draw showed he had no alcohol in
his system at this point.
Garcia told police that he was “very drunk” during his encounter with
Diaz and could not “remember much.” Garcia stated he had been drinking
because he was “disappointed” and “mad” that S.E. was still with Diaz “after
everything [Diaz had done].” Garcia told police that after the French fries
incident, he had told S.E. that he was going to fight Diaz the next time he
saw him because he could not allow the other man to treat her poorly any
more.
Garcia said he was waiting for S.E. and when she unexpectedly arrived
with Diaz, it “made [him] angry.” Garcia recalled, “I got in [Diaz’s] face . . .
[and] I think I had a knife, one of those knives to peel fruit[,] in the car and I
tried to hurt [Diaz]. I tried to hurt him. And . . . when I hurt him—I think I
didn’t really hurt him very much because I didn’t intend to go kill . . . , but
when I got him, well he . . . came with some bottles . . . and hit me.”
According to Garcia, Diaz hit him with a bottle twice, once when Garcia was
retreating to the Mustang and once after Garcia got back into his car.
In response to the police’s questions, Garcia repeatedly confirmed that
he “stabbed [Diaz] first” before Diaz attacked him. Garcia specifically denied
that he was “scared” of Diaz when he stabbed the other man, saying he was
just “mad and drunk.” Garcia said that he “only wanted to scare [Diaz]” so

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that Diaz “wouldn’t bother [him] again,” but he did not intend to kill him.
Garcia said that had he been sober, he would not have attacked Diaz.
2. Garcia’s testimony and other defense evidence
At trial, Garcia testified that he did not remember much of what
happened on May 27. He had spoken to S.E. earlier in the day about seeing
each other, and he testified that he drove to her home so they could go out to
eat. The next thing he remembered was seeing S.E. walking to her
apartment, and he pulled out behind her in his car because he wanted to talk
to her. He got out of his car to look for her, and the next thing he
remembered was seeing Diaz. Diaz was “yelling at [him]” and “coming at
[him], angry in the street.”
Garcia testified that Diaz hit him, but that he could not remember
anything clearly after that because he “was receiving blows, [and] there’s one
blow that erased everything for [him].” Garcia admitted that he also hit
Diaz, but he testified that Diaz hit him first. He could not remember
stabbing Diaz or having a knife, and he reiterated that he “never” intended to
kill Diaz. According to Garcia, he had brief memories of being at his house
and treated by a nurse, but he could not remember his interrogation.
Garcia could not explain how a bottle with Diaz’s blood on it got in his
yard or why his palm print was found on Diaz’s car. Garcia also testified that
he could not remember taking the photograph of the knife, which he claimed
belonged to his cousin, and he indicated he routinely photographed all sorts
of random items.
A defense expert in neuropsychology who evaluated Garcia testified
that Garcia’s “visual problem solving” was “impaired to such [a] . . . degree”
that it suggested damage to the temporal occipital lobe of his brain. The
expert testified that such damage could be caused by “a contrecoup injury,”

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during which the brain is hit and then “bounces back and hits . . . the
opposite side of the skull,” and Garcia could have sustained such an injury
during the fight with Diaz. She also opined that Garcia had post-traumatic
stress disorder from his childhood and “low average intellectual functioning,”
the latter of which would impair one’s ability to plan.
F. Procedural History
Garcia was charged with one count of murder, and it was alleged that
he personally used a deadly and dangerous weapon during the crime.2 At
trial, it was uncontested that Garcia stabbed Diaz, and the primary disputed
issue was Garcia’s state of mind.
The jury was instructed on first degree murder under the theories that
it was committed while lying in wait or was willful, deliberate, and
premeditated, on second degree murder, on provocation as reducing first
degree murder to second degree murder or murder to manslaughter, and on
voluntary manslaughter based on a sudden quarrel or heat of passion. The
jury was also instructed on voluntary intoxication and mental defect or
disorder as affecting whether Garcia acted with the requisite mental state to
be guilty of murder. The trial court declined the defense’s requests for
instructions on involuntary manslaughter and perfect and imperfect self-
defense.
The jury acquitted Garcia of first degree murder and found him guilty
of second degree murder, and it found the weapon enhancement true. The
trial court struck the weapon enhancement in the interest of justice under
section 1385 and sentenced Garcia to 15 years to life in prison.

2 The murder charge was brought under Penal Code section 187,
subdivision (a), and the weapon enhancement was alleged under Penal Code
section 12022, subdivision (b)(1). All further statutory references are to the
Penal Code.

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 II.
DISCUSSION
A. No Error Appears in the Trial Court’s Refusal to Instruct on
Involuntary Manslaughter.
Garcia claims the trial court erred by denying his request for a jury
instruction on involuntary manslaughter, a lesser included offense of murder.
We are not persuaded.
The defense asked that the jury be instructed on involuntary
manslaughter under CALCRIM No. 580. Garcia’s trial counsel offered three
theories for that crime: that Garcia committed assault with a deadly weapon
or brandished a deadly weapon without due caution and circumspection, that
he acted in self-defense without an intent to kill, and that he committed an
inherently dangerous felony without malice. The trial court denied the
request, finding insufficient evidence that Garcia acted without at least
conscious disregard for human life, given that he stabbed Diaz in the heart
with a knife.
“ ‘ “[A] defendant has a constitutional right to have the jury determine
every material issue presented by the evidence . . . .” [Citations.]’ [Citation.]
‘To protect this right and the broader interest of safeguarding the jury’s
function of ascertaining the truth, a trial court must instruct on lesser
included offenses . . . whenever there is substantial evidence raising a
question as to whether all of the elements of the charged offense are present.’
[Citation.] Conversely, even on request, a trial judge has no duty to instruct
on any lesser offense unless there is substantial evidence to support such
instruction.” (People v. Cunningham (2001) 25 Cal.4th 926, 1007–1008.)
“[T]he existence of ‘any evidence, no matter how weak’ will not justify
instructions on a lesser included offense.” (People v. Breverman (1998)
19 Cal.4th 142, 162 (Breverman).) Rather, “ ‘[s]ubstantial evidence’ in this

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context is ‘ “evidence from which a jury composed of reasonable [persons]
could . . . conclude[]” ’ that the lesser offense, but not the greater, was
committed.” (Ibid.; People v. Cunningham, supra, 25 Cal.4th at p. 1008.)
“[S]ubstantial evidence to support instructions on a lesser included offense
may exist even in the face of inconsistencies presented by the defense itself,”
and in particular even if “the defendant testifies to a state of mind
inconsistent with the theory of a lesser included offense.” (Breverman, at
pp. 162–163 & fn. 10; People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137–
1138.)
We review de novo whether there was substantial evidence to warrant
an instruction on a lesser included offense. (People v. Manriquez (2005)
37 Cal.4th 547, 584.) In doing so, we do “not evaluate the credibility of
witnesses, a task for the jury,” and “view the evidence in the light most
favorable to the defendant.” (Breverman, supra, 19 Cal.4th at p. 162; People
v. Millbrook, supra, 222 Cal.App.4th at p. 1137.)
“Murder is the unlawful killing of a human being . . . with malice
aforethought.” (§ 187, subd. (a).) Involuntary manslaughter, a lesser
included offense of murder, is “the unlawful killing of a human being without
malice . . . [¶] . . . in the commission of an unlawful act, not amounting to a
felony; or in the commission of a lawful act which might produce death, in an
unlawful manner, or without due caution and circumspection.” (§ 192,
subd. (b); People v. Cook (2006) 39 Cal.4th 566, 596.) “[A]n unlawful killing
in the course of [even] an inherently dangerous assaultive felony without
malice” is a valid theory of involuntary manslaughter. (People v. Brothers
(2015) 236 Cal.App.4th 24, 33–34; see People v. Bryant (2013) 56 Cal.4th 959,
970.) A trial court must instruct the jury on involuntary manslaughter “[i]f

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the evidence presents a material issue of whether a killing was committed
without malice.” (Cook, at p. 596.)
On appeal, Garcia claims an instruction on involuntary manslaughter
was required based on his “statements and testimony that he did not intend
to kill but only to scare.” He argues there was thus substantial evidence that
he “did not intend to kill and did not therefore harbor malice.” But an intent
to kill is required only for express malice, not implied malice. (People v. Soto
(2018) 4 Cal.5th 968, 976.) The required mind state for implied malice is a
“conscious disregard that the natural and probable consequences of [the
defendant’s] act or actions were dangerous to human life.” (People v.
Gonzalez (2018) 5 Cal.5th 186, 197.) Garcia does not explain how a claimed
intent to scare is incompatible with such a mind state. In other words, even
if the jury credited his testimony that he intended only to scare, that
testimony was not “evidence from which a reasonable juror could entertain a
reasonable doubt that [he] had acted in conscious disregard of the risk [his]
conduct posed to [Diaz’s] life.” (People v. Brothers, supra, 236 Cal.App.4th at
p. 34.)
The primary case on which Garcia relies, People v. Wilson (1967)
66 Cal.2d 749 (Wilson), is inapposite. In that case, the defendant was
convicted of two counts of murder after the jury was instructed on felony
murder with burglary as the underlying felony. (Id. at pp. 752, 756.) The
defendant testified that he entered the apartment where he shot the victims
“with an intent to scare rather than to assault.” (Id. at p. 757.) Wilson
concluded that an instruction on involuntary manslaughter was warranted
because if this testimony was credited, the defendant intended to commit
only the crime of brandishing a firearm, a misdemeanor, not the crime of
assault with a deadly weapon. (Ibid.) If so, “the felony-murder rule was

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inapplicable,” and the jury could have concluded “that the killing[s] occurred
without malice in the commission of an unlawful act not amounting to a
felony, a violation of section 417, which is involuntary manslaughter.” (Id. at
p. 758.)
Garcia does not explain how Wilson assists him except to say that the
decision also involved “substantial evidence on which jurors could rely . . . to
conclude that [the defendant] did not intend to kill and did not therefore
harbor malice, but instead intended only to scare [the victim or victims].” As
we have explained, Garcia’s premise that malice requires an intent to kill is
unsound because it ignores the possibility of implied malice, and Wilson did
not address implied malice. Thus, although we agree with Garcia that “the
technical classification [of the underlying act] as a misdemeanor or felony
does not matter” under the circumstances of this case, the problem remains
that he fails to point to any evidence from which a jury could entertain a
reasonable doubt about whether in stabbing Diaz he acted with conscious
disregard for life, and therefore conclude he committed involuntary
manslaughter but not murder.3 (See Breverman, supra, 19 Cal.4th at p. 162.)
Accordingly, Garcia fails to demonstrate that the trial court erred by refusing
to instruct the jury on involuntary manslaughter.
Finally, any error was harmless because “there is no reasonable
probability that, had the jury been instructed on involuntary manslaughter,”
any of its members “would have chosen that option.”4 (People v. Rogers

3Notably, Garcia does not argue on appeal that there was substantial
evidence that he killed Diaz while unconscious due to voluntary intoxication
and was therefore guilty of only involuntary manslaughter. (See People v.
Ochoa (1998) 19 Cal.4th 353, 423.)
4Garcia does not claim that prejudice from such an error must be
assessed under the federal standard of Chapman v. California (1967)
386 U.S. 18, 24. “[I]n order to preserve the right to seek subsequent review,”

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(2006) 39 Cal.4th 826, 884.) We agree with Garcia that his “mental state was
central to this case” and there was conflicting evidence on whether he
harbored an intent to kill. But we disagree that either the ultimate verdict or
a jury question about lying in wait suggest the possibility that the jury
concluded he acted without malice.
The jury was instructed under CALCRIM No. 521 that Garcia was
guilty of first degree murder if he “murdered while lying in wait or
immediately thereafter.” (See § 189, subd. (a).) During deliberations, the
jury asked whether “lying in wait need[s] to include intent to kill or intent to
harm,” to which the trial court correctly responded, “ ‘Lying in wait’ does not
necessarily need to include intent to kill but it must at least include implied
malice: at the time he acted the defendant knew his act was dangerous to
human life and he deliberately acted with conscious disregard for human
life.” (See People v. Stanley (1995) 10 Cal.4th 764, 794; People v. Laws (1993)
12 Cal.App.4th 786, 793–794.) Garcia posits that having been so instructed,
the jury “would have convicted of first degree murder under the . . . lying in
wait theory” had it determined that he acted with either express or implied
malice. We do not follow Garcia’s logic. The evidence to support lying in
wait, a theory that required the jury to conclude that Garcia “concealed his
purpose from the person killed,” “waited and watched for an opportunity to
act,” and “from a position of advantage, . . . intended to and did make a
surprise attack on the person killed,” was not so overwhelming that the jury
was compelled to accept it if it concluded he acted with implied malice.
Moreover, the jury was instructed under CALCRIM No. 520 that it had to
find that Garcia acted with express or implied malice to convict him of

he does argue that the alleged error is reversible per se. Governing precedent
forecloses this argument, and we do not address it.

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murder, undermining the conclusion that it found he acted without malice.
Accordingly, there is no reasonable probability that the jury would not have
convicted him of murder had it been instructed on involuntary manslaughter.
B. The Trial Court Correctly Declined to Instruct the Jury on Perfect
and Imperfect Self-defense.
Garcia also claims that the trial court erred by denying his request for
instructions on perfect and imperfect self-defense. Again, we are not
persuaded.
Garcia requested jury instructions on perfect and imperfect self-
defense. The trial court denied the request, finding there was no substantial
evidence that Garcia “believed he was in imminent danger of being killed or
suffering great bodily injury before he stabbed [Diaz].” The court observed
that the only possible theory by which Garcia acted in self-defense was that
after Diaz hit him with the bottle, he returned to the yellow Mustang and
“then grabbed the knife from the door and stabbed [Diaz] in response.” But
according to the court, this theory was undermined by the physical evidence:
“It is belied by the blood that was found on the phone that’s in [Diaz’s] car;
it’s belied by the copious amount of blood that is found around the memorial;
it’s belied, by some extent, . . . by the fact that [Diaz’s] blood was found on the
broken bottle, which was within the defendant’s car, . . . showing the blood
could have only come from the stab wound.”
“An unlawful killing involving either an intent to kill or a conscious
disregard for life constitutes voluntary manslaughter, rather than murder,
when the defendant acts upon an actual but unreasonable belief in the need
for self-defense. [Citations.] In addition, a homicide is justifiable and
noncriminal where the actor possessed both an actual and reasonable belief
in the need to defend. [Citations.] In either case, ‘the fear must be of
imminent harm. “Fear of future harm—no matter how great the fear and no

17
matter how great the likelihood of the harm—will not suffice. The
defendant’s fear must be of imminent danger to life or great bodily injury.” ’ ”
(People v. Stitely (2005) 35 Cal.4th 514, 551; People v. Sotelo-Urena (2016)
4 Cal.App.5th 732, 744.)
Again, we review de novo whether there was substantial evidence to
support giving the requested instructions. (People v. Manriquez, supra,
37 Cal.4th at p. 584; People v. Stitely, supra, 35 Cal.4th at p. 551.) Thus,
although Garcia claims the trial court erred by refusing to instruct on self-
defense “because there happened to be evidence in the record which
‘contradict[ed]’ the defense position,” the correctness of the court’s reasoning
plays no role in our analysis.
Garcia claims there was substantial evidence he acted in self-defense
based on his “own testimony that Diaz . . . struck the first blow” without
provocation. Garcia also points to the evidence that he had a “generally
peaceful nature,” knew Diaz was a violent person, based both on prior
encounters and information S.E. and her mother reported, that he himself
sustained “severe injuries” during the fight, and that Diaz was “considerably
larger” than he.
None of this evidence, including Garcia’s testimony that Diaz attacked
him first, was sufficient to establish that Garcia had an actual belief in the
need to use deadly force to defend himself. (See People v. Sotelo-Urena,
supra, 4 Cal.App.5th at p. 744.) Garcia claims in his briefing that “he
testified he [stabbed Diaz] in fear for his life.” The record does not support
this assertion. Rather, Garcia testified that while he remembered
exchanging blows with Diaz, he could not remember having a knife or
stabbing the other man. And if this testimony was accepted, it did not

18
demonstrate that Garcia was aware he used deadly force against Diaz at all,
much less that he believed deadly force was necessary.
In turn, other than Garcia’s trial testimony, there was no evidence to
support the conclusion that Diaz attacked Garcia first. Notably, although
S.E. testified that the two men were already fighting when she came outside,
the only reasonable interpretation of her testimony is that Diaz had already
been stabbed by then, as she did not see him get stabbed and he was already
bleeding. In our view, no reasonable juror could have believed Garcia’s
testimony that Diaz attacked first but also rejected Garcia’s claim that he did
not remember stabbing Diaz, as well as all the other evidence that Garcia
stabbed Diaz first, to conclude that Garcia actually believed in the need to
use deadly force. Accordingly, instructions were not warranted on either
perfect or imperfect self-defense. (See People v. Simon (2016) 1 Cal.5th 98,
134.)
Even if the trial court had erred in denying Garcia’s request for self-
defense instructions, it is not reasonably probable that Garcia would have
obtained a better result had the jury been so instructed (People v. Watson
(1956) 46 Cal.2d 818, 836), and the omission was harmless beyond a
reasonable doubt (Chapman v. California, supra, 386 U.S. at p. 24). As we
have said, the only evidence that Diaz attacked Garcia first was Garcia’s trial
testimony. But Garcia told police he stabbed Diaz first, and both S.E. in her
statements to police and Shawn B. in his testimony said that Garcia attacked
Diaz while Diaz was still in his car. In addition, the physical evidence,
including Garcia’s palm print on the door of Diaz’s car and the blood at the
scene, strongly supported the conclusion that Garcia instigated the fight.
Thus, even if Garcia’s testimony had sufficed to require self-defense

19
instructions, that testimony was decisively undermined by the balance of the
evidence before the jury.
C. The Trial Court’s Refusal to Let Garcia’s Counsel Reargue After
It Altered a Jury Instruction Does Not Require Reversal.
Garcia also claims the trial court denied him his right to effective
assistance of counsel by refusing to let his trial counsel reargue after the
court decided to change one of the jury instructions on murder. We conclude
that any error was harmless.
1. Additional facts
The prosecution requested CALCRIM No. 520 on murder with malice
aforethought. As applicable here, the standard instruction provides that to
prove a defendant is guilty of murder, the People must prove that (1) “[t]he
defendant committed an act that caused the death of . . . another person”; and
(2) “[w]hen the defendant acted, [he] had a state of mind called malice
aforethought.” (CALCRIM No. 520.) In addition, the instruction has an
optional third element that the defendant “killed without lawful (excuse/[or]
justification),” which is given “when instructing on justifiable or excusable
homicide.” (Ibid.) As discussed above, the trial court declined to instruct on
self-defense, the only potentially applicable theory of justification.
Nevertheless, the version of CALCRIM No. 520 in the instruction packet the
court gave to the parties before closing arguments included the optional third
element.
After the trial court ruled that self-defense instructions would not be
given, Garcia’s trial counsel stated, “Just so I understand, self-defense is an
implied element of the crime. Am I to not address—is that element being
eliminated by the Court’s ruling today?” The court responded, “No self-
defense instructions are going to be given.” Defense counsel sought to
confirm that “self-defense is not going to be given to the jury for

20
consideration, so [he could not] touch it.” The court responded, “Well, as
mentioned, you are free to argue that an intent to kill and implied malice did
not exist, and you may make that argument, so to that step, I suppose you
can touch it.”
Having received the packet with the optional third element included in
CALCRIM No. 520, both parties referred to lawful justification in their
closing arguments. The prosecutor argued at the outset that “what happened
to [Diaz] on May 27, 2016, was not just, and it was not lawful.” She later told
the jury, “Murder, as defined in [CALCRIM No.] 520, requires three elements
that I have to prove. The first element is that the defendant committed an
act that caused the death of another person. The second is that when the
defendant acted, he had a state of mind called malice aforethought. . . . And
the third is that he killed without lawful justification.”
In his closing argument, defense counsel also addressed the element of
an absence of lawful justification. After noting that there was “no further
definition in this instruction packet about what lawful justification means,”
counsel gave as examples soldiers or law enforcement officials killing in the
course of their duties. Counsel continued, “If someone is in your house going
after your children, you can defend them. We don’t have to lie and wait for
the State to protect us. It’s fundamental. It’s enshrined within the Second
Amendment. It’s part of due process. Self-defense is a fundamental human
right.”
The prosecutor immediately objected, and the trial court addressed the
jury as follows: “Ladies and gentlemen, as I’ve told you before, the law of
self-defense is not an issue in this case, and so you should not be influenced
in your decision as to what you think the law of self-defense might be.” The
following exchange then occurred:

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 “[DEFENSE COUNSEL]: You’ve got to decide what justification
means for you, then, because it’s not in
the instructions at all.

“[PROSECUTOR]: Objection, improper argument.

“[DEFENSE COUNSEL]: It’s an element.

“THE COURT: It’s an element, but if it’s not shown by
the evidence, then it’s an element that is
not in issue.

“[DEFENSE COUNSEL]: Are you instructing the jury that the
element is satisfied beyond a reasonable
doubt, Your Honor?

“THE COURT: I’m saying that the [jurors are] to confine
themselves to the evidence, and if there’s
no evidence of justification, then they are
to decide accordingly.

“[DEFENSE COUNSEL]: Think in your hearts about the facts in
this case. Think about the fact that you
cannot be impeached for your verdict.
Justification is an element. It means
something. There’s an instruction in
there that tells you that justification—if
the word isn’t defined it has its common
meaning. You know if you are justified
you are doing the right thing.”
Defense counsel then argued that Garcia was entitled to “repel that
attack, that is justification,” if Diaz attacked him first and he was losing the
fight and retreating. The prosecutor objected twice to this line of argument,
but the trial court overruled both objections. In conclusion, defense counsel
urged that the evidence as a whole did not “rule out justification beyond a
reasonable doubt.”

22
 In rebuttal, the prosecutor argued, “[T]he defense argument that this
was justified . . . is not supported by the law or by the facts as you heard
them. The defense argument is an attempt to shoehorn self-defense into this
case when you are not getting those instructions [and] is inapplicable and
inappropriate.” Defense counsel objected that “justification is an element,”
and the trial court overruled the objection.
The prosecutor continued by explaining to the jury that “[a]ll of the law
that applies to this case will be given to you. And that is the only law that
applies. It would not be fair or just in any circumstance for juries to
speculate about what would be justified for them to do, so it’s okay for the
defendant to do—” The defense unsuccessfully objected again, and the trial
court stated, “Ladies and gentlemen, I have determined that justification is
not an element in this case because there’s no evidence supporting it. So, in
deciding the case, you are to be governed by the evidence, not by what you
think I should have done or what [defense counsel] thinks I should have done.
You’re to base your decision on the evidence in the case.”
After closing arguments were finished, the trial court told counsel it
had “made a mistake” by including the optional third element in CALCRIM
No. 520. The court stated it intended to eliminate that element from the
instruction it would give to the jury. Defense counsel responded, “Your
Honor, given that that was the thrust of my argument, the Court is literally
eviscerating the entire defense after I gave the argument. The Court could
have called me forward to address that in the first instance at my mention of
justification as an element. I’ve never—I’m completely undermined, and my
client’s denied effective assistance of counsel and due process by such a
move.”

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 The trial court responded that it did not believe the defense was
“prejudiced,” because the ruling that no self-defense instructions would be
given was clear, and CALCRIM No. 520 also clearly stated that the third
element should not be given unless the jury was instructed on self-defense.
Defense counsel asked whether the court could see how it “completely
undermined what [he] just did,” and the court responded, “No, I don’t,
because I think you jumped on what was a mistake and used that as a
desperate attempt to fashion a defense. And I don’t believe that the jury,
within the facts of this case, [is] going to be misled in any way if I do not
include that as an element.”
Defense counsel denied he had intentionally taken advantage of the
trial court’s mistake and asked for the opportunity to reargue. Counsel
stated that he had interpreted the third element’s inclusion to be the court’s
direction about how to address self-defense within the parameters of its prior
rulings. Counsel asked that the court tell the jury “that the instructions that
[he] was given contained justification and now [the court is] removing [that
element]” so that the jurors would not “think that [he] invented an element
for [his] entire argument,” which would cause him “to lose all credibility
through the Court’s mistake.” The court agreed to tell the jurors that it had
mistakenly included the third element in the instruction packet it gave to
both counsel.
Subsequently, Garcia moved for the trial court to reconsider its decision
not to instruct on self-defense and the element of an absence of lawful
justification, and he also asked for 20 minutes “to explain what happened and
why what he said . . . applies to malice.” The court denied the motion for
reconsideration and declined to permit counsel to reargue. Counsel then
asked the court to “indicate that everything [he] said that was directed at

24
justification should be considered as argument against a malice element.”
The court also declined this request, saying this would be clear when it
explained its mistake.
Defense counsel reaffirmed his belief that the trial court’s rulings
denied Garcia a fair trial. Although counsel recognized that the situation
was accidental, he stated that he “fe[lt] very sorely used in this scenario” and
his “argument would have been [dramatically] different had [he] understood
what the Court meant.” The trial court responded that its rulings on self-
defense and the meaning of CALCRIM No. 520 were “plain,” and it “[couldn’t]
believe that [counsel] didn’t know” that the third element “is only to be given
when instructing [on] justifiable or excusable homicide.” Counsel responded,
“What I can’t believe, Your Honor, is when you told me that I could argue
self-defense as to malice, because obviously [it’s] black letter law that one
who kills in self-defense has actual malice, so it’s not relevant to malice. It’s
only relevant to justification. So the Court, I believe, has made a grievous
error and denied my client a fair trial.”
In instructing the jury the next day, the trial court gave the following
admonition: “[CALCRIM No. 520] does not as an element include that the
defendant killed without lawful justification, such as in self-defense. Due to
a mistake on my part, the written instruction that I gave to counsel before
arguments included the element that the defendant killed without lawful
justification. Because of this, the defense was led to argue that no lawful
justification was an element of murder. This was due to my mistake and you
should not blame the defense for making the argument. There still must be
proof beyond a reasonable doubt of malice aforethought to prove murder of
either degree or voluntary manslaughter.”

25
 2. Analysis
Initially, Garcia does not contest that the trial court was entitled to
revise CALCRIM No. 520 to eliminate the optional third element after it had
already provided the instruction to counsel. In general, “[b]efore the
commencement of the argument,” a trial court must “advise counsel of all
instructions to be given. However, if, during the argument, issues are raised
which have not been covered by instructions given or refused, the court may,
on request of counsel, give additional instructions on the subject matter
thereof.” (§ 1093.5.) A trial court has a duty to instruct on all applicable
points of law, and it is therefore entitled to modify an instruction “to dispel
confusion and correctly advise the jury on the law governing the case.”
(People v. Ardoin (2011) 196 Cal.App.4th 102, 128 (Ardoin), disapproved on
other grounds in People v. Dalton (2019) 7 Cal.5th 166, 214.) Given that we
have affirmed the court’s decision not to instruct on self-defense, Garcia also
concedes that the court properly deleted the third element of CALCRIM
No. 520.
Rather, the thrust of Garcia’s claim is that it “was fundamentally
unfair” to deny his trial counsel the chance to reargue after CALCRIM
No. 520 was altered. “ ‘The Sixth and Fourteenth Amendments to the United
States Constitution and article I, section 15 of the California Constitution
guarantee a criminal defendant the right to the effective assistance of counsel
at all critical stages of the proceedings.’ [Citation.] ‘ “To effectuate the
constitutional rights to counsel and to due process of law, an accused must
. . . have a reasonable opportunity to prepare a defense and respond to the
charges.” [Citation.]’ [Citation.] If supplemental or curative instructions are
given by the trial court without granting defense counsel an opportunity to
object, and if necessary, offer additional legal argument to respond to the

26
substance of the new instructions, the spirit of section 1093.5 and the
defendant’s right to a fair trial may be compromised.” (Ardoin, supra,
196 Cal.App.4th at p. 129.)
Assuming, without deciding, that the trial court should have granted
Garcia’s request to reargue (see Ardoin, supra, 196 Cal.App.4th at p. 129), we
conclude the error was harmless. We agree with Garcia that in assessing
prejudice from this type of error, we focus on the error’s effect on counsel’s
closing argument, not the strength of the evidence presented at trial.5 Such
an error “requires reversal only if, viewing the record in its entirety, a party
‘ “was unfairly prevented from arguing [the party’s] defense to the jury or was
substantially misled in formulating and presenting arguments.” [Citation.]’
[Citations.] ‘The question is whether this court can “conclude that the
effectiveness of counsel’s argument and hence of [the] defense was not
impaired by counsel’s inaccurate information regarding the court’s charge.” ’ ”
(Id. at p. 134; see United States v. Gaskins (9th Cir. 1988) 849 F.2d 454, 460;
United States v. Harvill (9th Cir. 1974) 501 F.2d 295, 297 (per curiam).)
Garcia argues that reversal is required under this standard because
“the thrust of defense counsel’s closing argument centered around [Garcia’s]
actions being justified that fateful evening.” Counsel spent a fair amount of
time arguing the justification issue, and the record is clear that he did so in
reliance on his belief the jury would be instructed on the optional third
element of CALCRIM No. 520. This reliance potentially harmed Garcia’s
case in two respects: by causing counsel to include an argument on
justification that he would not have otherwise, damaging his credibility with

5We disagree with Garcia, however, to the extent he suggests that
prejudice is therefore “presumed” and he does not have the burden on appeal
to demonstrate it.

27
the jury, and by causing counsel to omit other arguments that he might have
pursued otherwise, weakening the chance for a more favorable verdict.
We are unconvinced that the refusal to allow defense counsel to reargue
actually resulted in either type of harm. In our view, the trial court
adequately addressed the first type of potential harm by explaining to the
jury that counsel’s argument about justification was due to the court’s own
error and should not be held against the defense. Even if counsel’s
justification-based argument would have otherwise caused him to lose
credibility with the jury, the court’s explanation absolved counsel of blame.
This explanation, which expressly addressed the change in instructions,
distinguishes this case from other decisions cited by Garcia in which a lower
court’s post-argument decision not to give its indicated instructions was held
prejudicial. (United States v. Harvill, supra, 501 F.2d at pp. 296–297; People
v. Sanchez (1978) 83 Cal.App.3d Supp. 1, 4–7.) Indeed, Garcia admits that
the court’s explanation “could have ameliorated somewhat the damage to
defense counsel’s credibility,” and he does not suggest that this type of harm
could not be cured by further instruction or explain why what the court did
say was wanting.
As for the second type of potential harm, the omission of other
arguments, Garcia fails to demonstrate it. While defense counsel represented
that his closing argument would have been significantly different had he
known the third element would be omitted from CALCRIM No. 520, on
appeal Garcia does not identify how it might have been different. The viable
theories on which the jury was instructed that were closest to the barred self-
defense argument were based on provocation, which if found would reduce
murder from either first degree to second degree or to voluntary
manslaughter based on a sudden quarrel or heat of passion. (See CALCRIM

28
Nos. 522, 570.) As the Attorney General points out, counsel in fact argued
provocation and lack of malice at length, and the jury was persuaded to
acquit Garcia of first degree murder. We fail to see how the closing argument
“would have appreciably differed or been any more persuasive” had counsel
been permitted to reargue, and Garcia was not prevented from effectively
presenting a defense. (Ardoin, supra, 196 Cal.App.4th at p. 134.) Therefore,
his claim fails.
D. The Prosecutor Did Not Err in Closing Argument.
Garcia contends that the prosecutor committed misconduct by arguing
to the jurors in closing “that where there has been a killing, [they] should
‘start the analysis’ at second degree murder.” We are not persuaded.
During closing argument, the prosecutor explained to the jury that
“[a]ll murders start off at second degree.” She continued, “And then they are
elevated to a first degree murder by aggravation, and the law lays out what
sort of aggravation that is here, lying in wait, premeditation, and
deliberation. . . . Or, it is lower and mitigated to manslaughter by a defense
articulated in the law, and only by defenses that are articulated in the law.
[¶] So, if you find a dead body l[]ying in the gutter with a bullet wound to the
back of the[] head, that’s a second degree as you start the analysis.” The
defense’s objections to this argument were overruled.
“ ‘[T]he term prosecutorial “misconduct” is somewhat of a misnomer to
the extent that it suggests a prosecutor must act with a culpable state of
mind. A more apt description of the transgression is prosecutorial error.’
[Citation.] Such error occurs, as a matter of state law, when a prosecutor
‘engage[s] in deceptive or reprehensible tactics in order to persuade the trier
of fact to convict.’ [Citation.] Federal constitutional error occurs only when
the prosecutor’s actions ‘comprise a pattern of conduct that is serious and

29
egregious, such that the trial is rendered so unfair that the resulting
conviction violates the defendant’s right to due process of law.’ ” (People v.
Daveggio and Michaud (2018) 4 Cal.5th 790, 853–854.)
“ ‘ “ ‘[I]t is improper for the prosecutor to misstate the law generally
[citation], and particularly to attempt to absolve the prosecution from its
prima facie obligation to overcome reasonable doubt on all elements.’ ” ’
[Citation.] When a claim of prosecutorial error ‘ “focuses upon comments
made by the prosecutor before the jury, the question is whether there is a
reasonable likelihood that the jury construed or applied any of the
complained-of remarks in an objectionable fashion.” ’ ” (People v. Doane
(2021) 66 Cal.App.5th 965, 976.) “We consider the assertedly improper
remarks in the context of the argument as a whole,” and “ ‘we “do not lightly
infer” that the jury drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements.’ ” (People v. Covarrubias (2016)
1 Cal.5th 838, 894.)
Garcia claims the prosecutor “undercut the state’s burden of proof and
[the] presumption of innocence” by telling jurors that “on[c]e there was a
killing, they should ‘start the analysis’ at second degree murder,” and
specifically should do so under the hypothetical offered. Garcia argues that
“[m]erely finding a dead body with a bullet wound to the head does not
automatically result in a second degree murder conviction. . . . [I]n order to
[return] a murder conviction, jurors must find beyond a reasonable doubt
that the state has proven the killing was unlawful and with malice.
[Citation.] There is no presumption which excuses the state from meeting
this burden and permits jurors to simply assume an unlawful killing with
malice, start from that point, and look for aggravation (to convict of first
degree murder) or mitigation (to convict of manslaughter).”

30
 We conclude the trial court properly overruled the defense’s objections
to the prosecutor’s argument, because there is no reasonable likelihood that
the argument misled the jury. (See People v. Doane, supra, 66 Cal.App.5th at
p. 976.) Taken out of context, the prosecutor’s statements could technically
be interpreted to suggest that the jury could presume a murder occurred
without proof of malice. But we agree with the Attorney General that
reasonable jurors would have understood the argument to address the
analysis once they concluded that an unlawful homicide occurred, “and that it
did not mean that they could avoid the process of evaluating the evidence in
light of the instructions.” On that score, the jury was properly and fully
instructed on the presumption of innocence, the prosecution’s burden of proof,
reasonable doubt, and the elements of murder. Garcia does not argue
otherwise.
Moreover, immediately after making the challenged remarks, the
prosecutor made clear that “[s]econd degree murder requires malice” and the
state had the burden of proving that element. In particular, she tied her
explanation to the challenged hypothetical, stating, “[E]xpress malice in this
case is pretty obvious where you take a deadly weapon and stab someone in a
vital part of the body, that is an intent to kill. Just like if you took a gun and
shot someone in the head, that is an intent to kill, even if you don’t say what
you are trying to do. That’s express malice.” In light of this argument, no
reasonable juror could have believed that it could convict Garcia of murder
even if the state had not proven malice beyond a reasonable doubt.
E. No Cumulative Error Appears.
Finally, Garcia claims that even if the errors he alleges are harmless
standing alone, collectively they require reversal. We have concluded that
the trial court properly declined to instruct the jury on involuntary

31
manslaughter and self-defense principles, and the prosecutor did not err in
closing argument. And although we assumed that the court should have
permitted defense counsel to reargue after altering CALCRIM No. 520, that
error was harmless for the reasons already given. Accordingly, there is no
cumulative error requiring reversal.
III.
DISPOSITION
The judgment is affirmed.

32
 _________________________
Humes, P.J.

WE CONCUR:

_________________________
Margulies, J.

_________________________
Sanchez, J.

People v. Garcia A157727

33