P. v. Cato CA2/2

Filed 4/2/13 P. v. Cato CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B238217

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BA365074)
v.

MICHELLE CATO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los Angeles County.
Craig Richman, Judge. Affirmed.

Eric R. Larson, under appointment by the Court of Appeal, for Defendant and
Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Steven D. Matthews and
David E. Madeo, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________________________________
 A jury convicted defendant Michelle Cato of one count of second degree murder
in violation of Penal Code section 187, subdivision (a)1 (count 1) and one count of
attempted murder in violation of sections 664 and 187, subdivision (a) (count 2). The
jury found that in the commission of count 1, defendant personally used a firearm,
personally and intentionally discharged a firearm, and personally and intentionally
discharged a firearm causing death within the meaning of section 12022.53, subdivisions
(b), (c), and (d). In count 2, the jury found the firearm allegation pursuant to section
12022.53, subdivision (b) true, but found the allegations pursuant to section 12022.53,
subdivisions (c) and (d) not true.
The trial court sentenced defendant to a total term of 57 years to life in state
prison. In count 1, the court imposed a 15-years-to-life term, plus 25 years to life
pursuant to section 12022.53, subdivision (d). In count 2, the court imposed a
consecutive seven-year term, plus 10 years pursuant to section 12022.53, subdivision (b).
Defendant appeals on the grounds that: (1) the trial court prejudicially erred by
improperly restricting her proffered psychiatric expert testimony in support of her claim
of imperfect self-defense; and (2) the trial court prejudicially erred by refusing to instruct
the jury on the lesser included offenses of voluntary manslaughter and attempted
voluntary manslaughter based on sudden quarrel.
FACTS
Prosecution Evidence
On the morning of November 21, 2009, Earley Nicolis went to a park located at
Fifth Street and San Julian Street in Los Angeles. There, he saw defendant, whom he had
known and seen at the park for approximately one and a half months. Nicolis sat down at
a table in the park with defendant, Chevon Quinn, and another friend called Dmya.
Nicolis received a phone call. After he hung up, he discussed the call with Quinn and
then called his godsister, “Pocahontas,” to discuss it with her.

1 All further references to statutes are to the Penal Code unless stated otherwise.

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 While Nicolis spoke with Pocahontas, defendant interrupted and told Nicolis that
he had said something that was incorrect. Nicolis said he had not, and defendant
contradicted him. Nicolis asked, “Why are you in my phone conversation in the first
place?” Defendant replied, “Because I can.” She seemed angry, and an argument
ensued. During the argument, defendant “began saying ‘Avalon.’” Nicolis said, “I don’t
give a fuck what you talkin’ about.” Defendant said, “You disrespectin’ me.”
Pocahontas said to Nicolis on the phone, “You know she from Avon.” “Avon” is a term
of disrespect used to describe Avalon Gardens gang members. Nicolis then said, “I don’t
give a fuck if she from Avon.” At that point, defendant took a swing at Nicolis, but she
missed. Defendant then left the park saying, “I’ll be right back.”
Nicolis had parked his red Pontiac about two blocks from the park. When he
returned to his car about three hours later, he found it had been vandalized. The
windshield was broken, and the phrase “A’s Up” was scratched into the hood and side of
the car. Nicolis testified that, a few weeks before his argument with defendant, defendant
had seen Nicolis stopped at a red light. Defendant had said, “Hey, you have a nice car.”
Two days after the argument, at approximately 3:40 in the afternoon of November
23, 2009, Nicolis returned to the park and sat down at a table with Quinn and Nicolis’s
mother, Sheila Zaldana. When defendant arrived with another female, Dominique,
Nicolis approached defendant at the park entrance. Defendant did not appear to be
intoxicated. Nicolis asked her why she had keyed his car. Defendant replied, “Because
you disrespected me.” Defendant reached in her waistband for a small knife that she had.
Nicolis said, “I don’t give a fuck about your knife. You are going to jail for vandalizing
my car.” Defendant then showed Nicolis a gun in the right side of her waistband. She
kept it in her waistband but grabbed the trigger. By this time, Quinn and Zaldana were
standing near Nicolis. Nicolis said, “She has a gun.” Quinn said, “Call the police.”
Nicolis took out his cell phone and called 911. As he spoke with the dispatcher,
he followed defendant out of the park because she was walking away. Defendant walked
around a porta-potty and then south on San Julian Street toward Sixth Street. Nicolis
followed her at a distance of approximately 15 feet. Zaldana and Quinn followed Nicolis.

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 Defendant talked on a cell phone as she walked. At some point, defendant turned
around and “tried to pull the trigger” on Nicolis. The gun did not fire. Zaldana said,
“Run, Earley.” Defendant said “Run?” as if to say “you got the nerve to tell him to run.”
Nicolis demonstrated how defendant simultaneously chambered a round in her handgun
and said that she “cocked” the gun. As defendant was doing this, Zaldana said, “‘You are
not going to kill my son. You got to kill me first.’” Defendant lunged forward toward
Zaldana and pulled the trigger. Defendant shot Zaldana in the head. Zaldana took two
steps back and fell. When Nicolis saw no movement by his mother, he began running
after defendant, who had fled as soon as she pulled the trigger. A surveillance recording
from a camera at 523 San Julian Street captured the shooting and was played for the jury.
Defendant ran to Sixth Street and turned right. Nicolis was at a distance of
approximately 46 feet behind her. Defendant did not look back. Nicolis saw her throw
the gun down and slow her pace to a walk.
Nicolis and Quinn were walking in the middle of the street. While pointing at
defendant, they waved their arms to Officer Mario Ontiveros of the Los Angeles Police
Department (LAPD), who was passing on his motorcycle. Quinn said defendant had a
gun, and the officer drew his firearm and detained defendant. Nicolis ran up to them
while screaming, “She just shot my mom in the head.” Nicolis and defendant began to
fight, and the officer separated them. Other officers arrived and asked Nicolis where the
gun was. Nicolis said that defendant threw the gun away near the corner. He showed
LAPD Detective Charles Baley where he had seen the gun drop. Detective Baley found
the chrome semiautomatic handgun. The gun was loaded with three CCI .25-caliber ball
point bullets, including one in the chamber. LAPD Officer Paul Valencia searched
defendant for weapons and found a silver folding knife in her front pants pocket. LAPD
Detective Thayer Lake investigated the crime scene and recovered a .25-caliber bullet
casing from a gutter just south of 523 San Julian Street. He did not find a knife on
Zaldana, and he saw no knife near the body.
LAPD Officer Kevin Study was one of the officers who helped Officer Ontiveros
detain defendant. He and his partner drove about a block to 523 San Julian Street, near

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the corner of Fifth Street, as directed by Nicolis. They found Zaldana lying on the
sidewalk, unresponsive, not breathing, and bleeding from the head. Officer Study set up
a crime scene and called 911. Zaldana died from a gunshot wound to her right temple.
Detective Lake spoke with defendant at 9:30 p.m. on the day of the shooting. She
did not appear to be under the influence of any drugs. Officer Ontiveros also testified
that defendant did not appear intoxicated when arrested.
At approximately 10:00 p.m. on the day of her arrest, defendant was in a holding
cell at the LAPD central station. LAPD Officer Angel Guerra searched the holding cell
after defendant was removed and found a CCI .25-caliber ball point bullet wedged
between the bench and the wall.
Nicolis acknowledged that he had a pocket knife on him during the incident. He
did not display it to anyone or use it. To his knowledge, his mother and Quinn had no
weapons. At no time during the incident did he threaten defendant with doing anything
other than calling the police on her. Neither Zaldana nor Quinn threatened defendant.
Firearms expert Carole Acosta inspected the gun found at the corner of San Julian
and Sixth Streets and found that it fired only intermittently, possibly due to dirt and other
defects. She stated that the shell casing found at the shooting scene was fired from this
handgun. She concluded that one of the bullet fragments found in Zaldana’s body was
fired from this firearm. The gun required at least four and three-quarters pounds of
pressure on the trigger in order to fire.
Officer Armando Leyva testified as a gang expert. He described aspects of gang
culture and stated that the Avalon Gardens Crips gang consists of 160 members. “A’s
up” is a greeting among Avalon gang members, and “Avon” is a disrespectful term for
them. Defendant had many gang tattoos on her arms, photographs of which were shown
to the jury. Officer Leyva believed that defendant was an active gang member and
committed the shooting for the benefit of the gang.
Defense Evidence
Defendant testified that in November 2009 she was friends with Nicolis, Zaldana,
and Quinn. On the morning of November 21, 2009, she drank and smoked marijuana.

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When she and Nicolis got into an argument about what he had said over the telephone to
Pocahontas, she and Quinn were joking about it, but Nicolis was upset. He said he did
not have to explain himself “to no bitch,” and “This is Hoover business.” He said, “I
don’t give a fuck about an Avon.” Then he kicked defendant under the table, and she
stood up and swung at him but missed. Defendant did not feel comfortable anymore, so
she walked to her car and left. She denied vandalizing Nicolis’s car that day or at any
time.
On November 23, 2009, at about 2:30 p.m., a friend named Dominique drove
defendant to the park at San Julian and Sixth Streets. They had been drinking, and they
smoked a blunt. Defendant was carrying a box cutter and a gun. She carried them
because she had been robbed and beaten up in the area. Before she got to the entrance of
the park, Nicolis approached. He, Zaldana, and Quinn stopped defendant. Nicolis said,
“Why the fuck did you scratch my car? You are gonna pay for it.” Defendant replied, “I
didn’t.” Nicolis, Zaldana, and Quinn all said that defendant “scratched his car up.”
Defendant turned and walked away toward Wall Street. When Nicolis and Quinn
blocked her path, defendant turned and tried to beat them to San Julian Street. When
Nicolis and Quinn blocked her path again, defendant pulled out her box cutter, which was
folded. Nicolis loudly said, “I don’t give a fuck about that knife, bitch,” and pulled out
his own knife. Zaldana and Quinn each had a knife as well.
Defendant put her knife away and tried again to leave toward Wall Street, but the
three cut her off again. Defendant told Dominique to get her car so that defendant could
get out of there. Dominique left, and Nicolis said, “You not goin’ nowhere without
payin’ for my car.” Defendant tried to call her mother with her cell phone, but she could
not reach her. Near the corner of San Julian and Fifth Streets, she lifted her shirt to show
the gun in her waistband. Nicolis called out to Quinn, “This bitch got a gun.” Quinn
said, “Call the police on this bitch.”
While Nicolis and Quinn were talking to each other, defendant was able to get to
San Julian Street, and she began walking quickly toward Sixth Street. Nicolis followed,
saying, “You ain’t gonna get away with this shit. You go pay for my window.”

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Defendant heard him say, “When you get out the eye of the camera, I’m a blow your
head off.” When he said that, defendant “freaked out” and “blacked out.” It
“register[ed]” with defendant because she used to work security and patrol that area. She
“sort of” had a sense of where the cameras were. If she had taken a step further, she
would have been out of the eye of the camera. She turned around and pointed the gun at
Nicolis to scare him. She turned to walk away again and she heard Nicolis say he was
going to “blow her head off,” so she turned back again. She was scared and the gun went
off. There was silence for a couple of seconds and then Nicolis and Quinn started
chasing her again. She believed Nicolis had a gun on him because he said he was going
to blow her head off.
Defendant stated that she had been raped and molested when she was 12 and again
when she was 15 and 17. She was beaten up a couple of days prior to the shooting
incident. She took several drugs, including PCP, crystal methamphetamine, marijuana,
and alcohol. Being chased made her flash back to all the times that someone had put
hands on her or she had been beaten or threatened. She felt that Nicolis was going to try
to kill her. Defendant said the gun went off because she was scared. She heard it go off
after she had already turned around. She denied that she tried to kill anyone that day.
Defendant thought that her life was in danger and that it was necessary to shoot Nicolis.
Defendant had seen Nicolis get into a fight with two girls in October 2009. This made
her afraid of Nicolis because “he’s quick to fight girls.” She knew that Nicolis carried
pepper spray and a knife. Defendant was not so drunk that she did not know what she
was doing.
Defendant stated that she was affiliated with the Avalon Gardens Crips gang
because she grew up in the Avalon Gardens projects. She no longer lived in the gang’s
territory and was not an active member. She had acquired her tattoos over seven years
earlier. The tattoos merely showed where she grew up.
Defendant had carried the handgun for protection for five months before the
shooting. She had never shot it before and did not know how to load it. She did not
know if it was loaded when she pulled the trigger. Defendant said that she did not pull

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the trigger on purpose, and she did not pull it more than once. Defendant denied being
placed in a holding cell on the day of the shooting. Defendant acknowledged that she had
a 2006 conviction for possession of a firearm by a felon and a 2008 conviction for
possession of marijuana for sale.
LAPD Detective Camille Armstead interviewed Nicolis and Quinn on
November 23, 2009, at 4:15 p.m. Nicolis did not tell her that he was carrying a knife.
Nicolis said that defendant was the only person to have a weapon at the time of the
shooting.
A recording of a 911 call made by the person reporting Zaldana’s shooting was
played in court. The transcript of the call reveals that a male voice is heard to say, “. . .
don’t touch the knife.”
Dr. Ronald Markman, a psychiatrist, discussed posttraumatic stress disorder
(PTSD) resulting from domestic violence. He stated that a person with a history of drug
abuse, who had been a victim of sexual assault, might perceive things differently than
someone else. That person might also act out in highly impulsive and self-protective
ways. Persons with dysfunctional backgrounds can still form an intent to kill.
Prosecution Rebuttal Evidence
Detective Lake examined the crime scene around the victim’s body. He did not
find a knife. No knife other than the one found on defendant was booked into evidence in
this case.
Officer Chris Reza testified that on March 3, 2009, while on patrol, he arrested
defendant in an unrelated incident near the Avalon Gardens housing development.
Officer Reza saw a Black male holding his waistband run toward and enter the open
passenger door of a car. Officer Reza and his partner followed the car. It eventually
stopped and all of the occupants except the driver fled. Defendant was one of those who
fled, and Officer Reza found her hiding in a bush nearby. Along the path that defendant
had taken, Officer Reza found a .25-caliber semiautomatic handgun that was missing its
magazine. The magazine, loaded with six live rounds, was later recovered. While
testifying in that case, defendant admitted to being an Avalon gang member.

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 Officer Ontiveros observed defendant walking just before he took her into
custody. She did not stagger, smell of alcohol, or slur her words. Defendant exhibited no
signs of alcohol consumption at all when she was detained. He observed her for
approximately 15 minutes.
DISCUSSION
I. Restriction of Defense Psychiatric Expert Testimony
A. Defendant’s Argument
Defendant contends that the trial court improperly restricted her proffered expert
psychiatric testimony. The limitations imposed by the court prevented defendant from
fully presenting her claim of imperfect self-defense, which was otherwise viable.
Defendant argues that, because the error struck at the heart of her defense, it warrants
reversal of her conviction under the standard of People v. Watson (1956) 46 Cal.2d 818,
836 (Watson).
B. Proceedings Below
Near the close of the prosecution case, the trial court conducted an Evidence Code
section 402 hearing on the issue of Dr. Markman’s proposed testimony for the defense, to
which the prosecutor had objected. Defense counsel argued that Dr. Markman would
testify to the basis for a defense of imperfect self-defense (a Flannel defense).2 He would
not testify to the ultimate issue of the defense, i.e., that defendant honestly believed in the
need to defend herself. Dr. Markman would also discuss the facts and circumstances
behind his opinion. Counsel explained that defendant was molested when she was 12,
was raped, and was beaten up two days prior to the November 21, 2009 shooting. Dr.
Markman was familiar with the police reports and defendant’s preliminary hearing
testimony related to these prior incidents. After consultation with Dr. Markman, defense
counsel stated, “what he’s saying is that, generally speaking, somebody that experienced
what she experienced could very well have these types of fears,” and that her fear would

2 People v. Flannel (1979) 25 Cal.3d 668, 682 (Flannel).

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be reasonable under the circumstances. The prosecutor interjected that Dr. Markman
would not testify about “some PTSD defense, or that we are going to get a whole life
history of her through the doctor to explain why she might have been quicker on the
trigger under these circumstances. There’s nothing in the report that indicates that.”
The trial court stated it had not read the Cortez case cited by the prosecutor.3 The
court noted that Dr. Markman’s later report of October 13, 2011, stated that his opinion in
the first and lengthier report of July 18, 2011, remained unchanged: “that Ms. Cato likely
lacked the capacity to deliberate based on her use of alcohol and marijuana on the day in
question.” Dr. Markman additionally stated that “the issues of heat of passion or a
Flannel defense, i.e., an unreasonable belief reasonably held, are viable positions based
on her past history of victimization, but as ultimate issues they are decisions left to the
trier of fact, i.e., the judge and/or the jury.”
The court pointed out that Dr. Markman’s first report of July 13, 2011, stated that
“‘based upon my evaluation and review of the available record, there is no data to suggest
diminished actuality, i.e., an inability to premeditate, deliberate, harbor malice
aforethought, and the intent to kill as a result of an underlying mental disorder. But it
would appear that Ms. Cato’s ability to deliberate was impaired as a result of her acute
alcohol/ P.C.P. use.’ It then goes on to state, ‘There are, however, three additional
psychiatric legal positions that are viable, the first that Ms. Cato was acting in self-
defense based on the aggressive behavior of the alleged victims. The second, a Flannel
defense indicating that she [had] an unreasonable but honest belief that she had to defend
herself based on past experience with the alleged victims, thereby negating malice
aforethought. And a, third, a heat of passion explanation as a result of the confrontation
with people she felt were there to harm her.’ So I’m not really certain which of those
three Dr. Markman’s testimony would go to, since we are not talking about past
experiences with the alleged victims that I’m aware of.”

3 The trial court was most likely referring to People v. Cortes (2011) 192
Cal.App.4th 873, on which defendant relies in this case.

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 Dr. Markman then testified at the Evidence Code section 402 hearing. After
expressing his opinion, the trial court asked him, “So your opinion is based solely—and if
I could paraphrase what you are saying. And correct me if I’m wrong—that she had
diminished actuality based upon alcohol and drug abuse?” Dr. Markman answered,
“Yes.” Dr. Markman added that “when you have an individual with the history that she
presented, there are very—there are very, very sound arguments that can be presented for
those. And I would talk in general terms, but not specifically for—for this—this—” The
court asked, “To the facts of this case?” Dr. Markman replied, “because I am precluded
from doing so.”
The court stated, “Under those circumstances, should Ms. Cato testify that she had
a history of drug and alcohol abuse, including on the day in question, and should she
testify to all of the other factors considering her alleged rape and child molestation—and
I’m not certain whether those are the same incident or not—I will allow Dr. Markman to
testify in general terms how incidents such as those would affect a person’s honest ability
to perceive threats. Right, Dr. Markman? That’s what you are telling me?” Dr.
Markman replied, “Yes.”
On the following day, during cross-examination of defendant, defense counsel and
the prosecutor again argued before the court regarding Dr. Markman’s proposed
testimony. The trial court stated that Dr. Markman could not render an opinion based
upon the specific facts involving defendant. The court believed Dr. Markman would
testify to the fact that defendant has some kind of PTSD or something like that. And that
was all that he would be allowed to testify to—to say that persons who have those kinds
of psychological or psychiatric problems react in certain ways to certain stimuli. The
prosecutor argued, “He can’t use it in terms of her. That was the court’s ruling. The
court stated, “ . . . it cannot apply directly to her. It can only be a general description of
posttraumatic stress disorder or battered wife syndrome, or whatever he’s going to proffer
as the clinical title of whatever he’s diagnosing Ms. Cato to try to explain.”
With the jury present, on direct examination by defense counsel, Dr. Markman
testified that he was familiar with the facts of defendant’s case from reviewing multiple

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police reports, transcripts of court proceedings and interviews with defendant, mental
health records, and the murder book. Defense counsel asked Dr. Markman if some of the
patients he dealt with who have mental disorders were also victims, such as victims of
sexual assaults and general assaults. Dr. Markman said they were—such as in domestic
assaults within families. He testified that PTSD occurs any time a person is faced with a
life-threatening situation either to himself or a loved one. He said that PTSD “is a very
highly likely diagnosis” and “we see that very commonly in young men who . . . have
seen military action.” When requested by defense counsel, he explained battered
women’s syndrome to the jury.
Dr. Markman said he had interviewed defendant one time. When asked his
opinion as to whether, generally speaking, someone who might have a history of alcohol
and drug abuse or been the victim of assault, might perceive things differently than
someone else, Dr. Markman said it depended on the situation. Obviously, dysfunctional
events in a person’s upbringing have a major impact on his or her ability to interact and
solve problems. Many times the solutions are dysfunctional. When asked if such persons
can perceive things differently, he replied, “Yes.” He stated that they can act out in
highly impulsive and self-protective ways. “They misinterpret events in their immediate
environment. Particularly, if they—if they have been repeatedly abused, they see the
world as an abusive place, and they have a very difficult time making contact in a
positive manner with anyone in general.” Defense counsel asked if they can overreact to
a different situation than someone else, and Dr. Markman replied that they can,
depending on the perception that they have. They might do things that other people
would not do given the same set of circumstances. The defense asked no further
questions.
On cross-examination, the prosecutor stated, “And the two basic descriptions that
you have given for people in these, as you put it, ‘dysfunctional circumstances,’ you gave
two general descriptions of someone with posttraumatic stress. Is that correct?” Dr.
Markman replied, “I was speaking in generalities. But I’ve mentioned posttraumatic
stress.” The prosecutor asked Dr. Markman to clarify if battered women’s syndrome

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involved a cycle of abuse in a domestic ongoing “live-in” relationship, and the doctor
confirmed that it did. He stated, “I was just answering the questions I was asked.” Dr.
Markman confirmed that a dysfunctional background can have a major impact on a
person. The prosecutor elicited from Dr. Markman, who is an attorney as well, that
people from difficult backgrounds or who have been abused can still form an intent to
kill, deliberate in the legal sense, and carefully weigh considerations for and against the
choice whether to kill. The prosecutor also elicited that the ultimate question of the
defendant’s state of mind was for the jury to decide and it was not the doctor’s opinion to
give.
C. Relevant Authority
We review a trial court’s ruling on the admissibility of evidence questions for an
abuse of discretion. (People v. Hoyos (2007) 41 Cal.4th 872, 898.) A trial court’s ruling
will not be disturbed unless it exercised discretion in an arbitrary, capricious, or patently
absurd manner that resulted in a manifest miscarriage of justice. (People v. Guerra
(2006) 37 Cal.4th 1067, 1113, disapproved on another point in People v. Rundle (2008)
43 Cal.4th 76, 151.)
Section 25 provides that evidence concerning a defendant’s “intoxication, trauma,
mental illness, disease, or defect shall not be admissible to show or negate capacity to
form the particular purpose, intent, motive, malice aforethought, knowledge, or other
mental state required for the commission of the crime charged.”
Section 28 provides that “[e]vidence of mental disease, mental defect, or mental
disorder shall not be admitted to show or negate the capacity to form any mental state,
including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or
malice aforethought, with which the accused committed the act. Evidence of mental
disease, mental defect, or mental disorder is admissible solely on the issue of whether or
not the accused actually formed a required specific intent, premeditated, deliberated, or
harbored malice aforethought, when a specific intent crime in charged.”
Section 29 provides that, in the guilt phase of a criminal trial, “any expert
testifying about a defendant’s mental illness, mental disorder, or mental defect shall

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not testify as to whether the defendant had or did not have the required mental states . . .
for the crimes charged. The question as to whether the defendant had or did not have the
required mental states shall be decided by the trier of fact.”
C. No Prejudicial Error or Abuse of Discretion
The leading California Supreme Court case on the application of sections 25, 28,
and 29 is People v. Coddington (2000) 23 Cal.4th 529, overruled on another point in
Price v. Superior Court (2001) 25 Cal.4th 1046, 1069 (Coddington). In that case, before
the guilt phase of a capital murder trial, the court ruled that the defense could offer
relevant evidence on mental defect or disease. (Id. at p. 582.) However, neither party
could ask the psychiatric expert about whether or how any defect or disease would affect
the defendant’s mental state or actuality or if it would impair his ability to form intent or
to deliberate or premeditate, unless the expert testified outside the presence of the jury
that he believed the defendant did not have the required mental state. (Ibid.) The
California Supreme Court found this ruling was an overly restrictive reading of the
statutory limitations. (Ibid.)
Coddington explained: “Sections 28 and 29 permit introduction of evidence of
mental illness when relevant to whether a defendant actually formed a mental state that is
an element of a charged offense, but do not permit an expert to offer an opinion on
whether a defendant had the mental capacity to form a specific mental state or whether
the defendant actually harbored such a mental state. An expert’s opinion that a form of
mental illness can lead to impulsive behavior is relevant to the existence vel non of the
mental states of premeditation and deliberation regardless of whether the expert believed
appellant actually harbored those mental states at the time of the killing.” (Id. at pp. 582-
583, fn. omitted.) “Sections 28 and 29 do not preclude offering as a defense the absence
of a mental state that is an element of a charged offense or presenting evidence in support
of that defense. They preclude only expert opinion that the element was not present.”
(Id. at p. 583.) The Coddington court ultimately concluded that the trial court’s
erroneous ruling did not justify a reversal of the judgment, since the defendant could have
presented evidence of his mental illness at the guilt phase, but he did not, and the issue

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was therefore not properly preserved. (Id. at pp. 583-584.) Even assuming error, it was
not prejudicial because there was no evidence that mental illness affected the defendant’s
ability to premeditate and deliberate, and the facts showed extensive evidence of
premeditation and deliberation. (Id. at p. 584.)
People v. Aris (1989) 215 Cal.App.3d 1178 (Aris), disapproved on another point in
People v. Humphrey (1996) 13 Cal.4th 1973, 1089, held that the trial court properly
excluded proposed expert testimony that the defendant shot the victim in honest self-
defense while he slept and that this was reasonable. (Id. at p. 1194.) The Aris court
deemed it erroneous, however, “not to permit [the expert] to testify, based on her
experience and BWS [battered woman syndrome] theory, as to how the defendant’s
particular experiences as a battered woman affected her perceptions of danger, its
imminence, and what actions were necessary to protect herself.” (Id. at p. 1198.) The
proposed testimony that the defendant was a battered woman and how this affected her
perceptions and conduct “stops short of the ultimate issue of what defendant’s perception
actually was and, therefore, does not violate section 29.” (Ibid.) The testimony was
relevant to show that the defendant genuinely believed she was in imminent danger of
serious bodily injury. (Id. at p. 1199.)
People v. Nunn (1996) 50 Cal.App.4th 1357 (Nunn) offers a concrete example of
the statutory limits on an expert’s opinion regarding the defendant’s state of mind. The
Nunn court stated that Penal Code sections 28 and 29 “allow the presentation of detailed
expert testimony relevant to whether a defendant harbored a required mental state or
intent at the time he acted.” (Nunn, at p. 1365.) The court went on to conclude that “it
was permissible for Dr. Lipson to opine that appellant, because of his history of
psychological trauma, tended to overreact to stress and apprehension. It was permissible
for him to testify such condition could result in appellant acting impulsively under certain
particular circumstances. Dr. Lipson could have evaluated the psychological setting of
appellant’s claimed encounter with the men at the fence and could have offered an
opinion concerning whether that encounter was the type that could result in an impulsive
reaction from one with appellant’s mental condition. What the doctor could not do, and

15
what the defense proposed he do here, was to conclude that appellant had acted
impulsively, that is, without the intent to kill, that is, without express malice
aforethought. The court acted properly in excluding Dr. Lipson’s opinion that appellant
fired his weapon impulsively.” (Ibid.)
Defendant chiefly relies on People v. Cortes, supra, 192 Cal.App.4th 873
(Cortes), which, in addition to its own analysis of the issue, summarized the facts and
reasoning of other leading cases, such as Coddington, Nunn, Aris, and several others.
(Cortes, at pp. 902-908.) Cortes observed that “[n]o case has been cited to us, nor have
we found one ourselves, which even remotely suggests that it is proper under sections 25,
28, and 29 to preclude all testimony about the accused’s own diagnosis, or mental
condition, at the time of the offense, but instead limit the expert’s testimony to diagnoses
or mental conditions ‘in the population at large,’ and their ‘effects on a general person’s
behavior who might have that symptom.’” (Cortes, at p. 909.) The Cortes court stated
that, “sections 28 and 29 do not prevent the defendant from presenting expert testimony
about any psychiatric or psychological diagnosis or mental condition he may have, or
how that diagnosis or condition affected him at the time of the offense, as long as the
expert does not cross the line and state an opinion that the defendant did or did not have
the intent, or malice aforethought, or any other legal mental state required for conviction
of the specific intent crime with which he is charged.” (Cortes, at p. 908, italics added.)
In Cortes, the defendant was charged with the stabbing death of the victim. The
court held that the trial court abused its discretion in limiting the testimony of a
psychiatric defense expert to the subject of dissociation and PTSD in general, and
excluding any testimony at all about the defendant’s mental condition and the effect on
him at the time of the offense. (192 Cal.App.4th at pp. 892, 909.) According to Cortes,
in all of the cases it cited, “evidence was presented from which the jury could have
properly inferred, from testimony that fell short of expressing an opinion that the
defendant lacked the specific intentional state required for the charged crime, that the
defendant actually lacked such intent.” (Id. at p. 912.) Such testimony is not prohibited

16
by sections 25, 28, and 29, but is exactly the type of testimony sections 28, 29, and the
case law permit. (Cortes, at p. 912.)
In the instant case, it appears the trial court and the parties became mired in the
“legal ‘bog’” that is demarcated by sections 25, 28, and 29. (See Nunn, supra, 50
Cal.App.4th at p. 1364.) As explained in Nunn, section 28 permits a qualified expert to
testify that a defendant suffers from a particular mental defect, disorder, or disease and to
describe and explain the symptoms and effects of the condition, including the types of
behavior or mental processes that can be expected from people suffering from the
particular condition or conditions, and the actual effects of the condition or conditions on
the defendant. The consequences of the condition must, of course, be relevant to
“whether a defendant harbored a required mental state or intent at the time he acted.” (50
Cal.App.4th at p. 1365.) Here, the final ruling by the trial court limited Dr. Markman to
testifying to a general description of whatever the doctor labeled defendant’s “diagnosis,”
and to saying that persons who have “those kinds of psychological or psychiatric
problems” react in certain ways to certain stimuli, and it prohibited the doctor from
applying it directly to defendant. Therefore, the ruling constituted an abuse of discretion.
The issue then becomes whether defendant was prejudiced thereby. According to
defendant, there are several reasons why it is reasonably probable she would have
achieved a better result if she had been permitted to buttress her contention of imperfect
self-defense with the appropriate expert testimony by Dr. Markman. First, citing defense
closing argument, defendant argues that she admitted to being the shooter and presented
the defense at trial that she acted in imperfect self-defense; therefore the error in limiting
the expert testimony struck directly at the heart of her defense. Second, the prosecutor
took advantage of the error during his closing argument. Third, the jury’s rejection of the
gang allegation demonstrated that the alleged motive for the shooting was not believed by
the jury. Therefore, had the jury been presented the appropriate psychiatric testimony in
support of imperfect self-defense, it is reasonably probable that one or more jurors would
have harbored a reasonable doubt as to that defense. Fourth, the bystander’s comment on

17
the 911 call, telling someone not to touch the knife, corroborated defendant’s testimony
that Nicolis and the others had knives.
We observe initially that Dr. Markman’s proposed testimony differs significantly
from the proffered testimony in Cortes. The “core” of the report by the psychiatric expert
in Cortes was that the defendant in all likelihood entered a dissociated state in response to
the “‘extreme stress of a perceived life-threatening danger.’” (Cortes, supra, 192
Cal.App.4th at p. 893.) The report went on to describe in detail the characteristics of
such a state and the defendant’s reported experience. (Id. at pp. 893-894.) The expert
concluded that the defendant’s behavior was consistent with an act of self-defense and
the mental state described in the report. The expert’s testimony at the Evidence Code
section 402 hearing was very detailed regarding dissociation, as well as defendant’s
history and personality and how they related to his behavior during and after the stabbing.
(Cortes, at pp. 894-898.) The trial court ruled that the expert could not testify to anything
remotely connected to the defendant’s diagnosis or history. (Id. at pp. 899-900.)
In the instant case, it does not appear that Dr. Markman diagnosed defendant with
any particular psychiatric condition. Dr. Markman’s emphasis was on defendant’s
“diminished actuality” due to alcohol and drug intake. Dr. Markman’s report of July 18,
2011—which he confirmed as still valid in his October 13, 2011 report—stated that there
was “no data to suggest diminished actuality, i.e., an inability to premeditate, deliberate,
harbor malice aforethought, and the intent to kill as a result of an underlying mental
disorder.” Voluntary manslaughter, either heat of passion or unreasonable self-defense,
were described merely as “viable positions” based on defendant’s history of
victimization. Dr. Markman apparently was only willing to “render a general opinion”
on any such positions. Therefore, it is not clear that the trial court’s limitations on the
expert testimony struck at the heart of the defense, since Dr. Markman’s proffered
testimony would not have been a strong affirmation of that defense. The Cortes court
concluded that, in that case, the trial court’s ruling destroyed any defense that defendant
possessed with regard to premeditated and deliberated murder by prohibiting any
testimony about the defendant’s mental condition. (Cortes, supra, 192 Cal.App.4th at

18
p. 912.) Thus, the jury had no basis from which to infer that the defendant had lapsed
into a dissociated state and might not have deliberately premeditated inflicting 13 stab
wounds. (Ibid.) Here, however, there was no diagnosis of any mental illness in Dr.
Markman’s report, which was the basis of his testimony. Moreover, as respondent points
out, defendant continually told the jury that the shooting was an accident.
It is true that the prosecutor discussed Dr. Markman’s testimony in his closing
argument and noted the lack of specificity in the doctor’s testimony. The prosecutor
stated, “What did he offer you in this case? Nothing. He offered you—he said there’s
some certain things about posttraumatic stress syndrome that involve combat veterans.
We don’t have a combat veteran case. Certain syndromes called battered women’s
syndrome. Women who are victims of domestic violence and the cycle of abuse. This
isn’t a domestic violence case. He gave no opinion. He gave general principles of, you
know, people who come, have dysfunction in their life, you know, might possibly be
more likely to act unreasonably. Okay. Well that—but he didn’t apply them to these
facts. There’s no opinion. There’s no medical opinion that anyone can give that can tell
you anything other than that she acted with malice, she acted out of anger and
frustration.”
The Cortes court noted that the prosecutor in that case “took full advantage” of the
trial court’s limitation of the expert testimony. (192 Cal.App.4th at p. 912.) The Cortes
prosecutor emphasized the number of stab wounds as a ground for a verdict of first
degree murder, and because of the limitation of the evidence, was able to argue that there
was no explanation for the 13 stab wounds except premeditation and deliberation. (Ibid.)
The prosecutor dismissed the expert’s testimony as “‘a lot of general information.’”
(Ibid.) Similar to the prosecutor in this case, he pointed out that PTSD was “about
warfare.” The Cortes prosecutor disparaged the evidence about the defendant’s
upbringing as “so much whining.” (Ibid.)
Although in Cortes the court did not state that the prosecutor took unfair
advantage of the trial court’s ruling, it was implied, as it is by defendant in this case.
Unlike Cortes, however, there was no proffer of detailed testimony about defendant’s

19
multiple diagnoses recognized in the DISM (Diagnostic and Statistical Manual of Mental
Disorders). (See Cortes, supra, 192 Cal.App.4th at p. 897.) In Cortes, these included
“adjustment disorder with emotional and conduct problems, attachment problems related
to personality development, and psychiatric problems that could be characterized
variously as PTSD, anxiety disorder or psychophysiological instability.” (192
Cal.App.4th at p. 910; see also People v. Reyes (1997) 52 Cal.App.4th 975, 981, 984
[prejudicial error to exclude proposed expert testimony on element of knowledge that
defendant had, inter alia, “‘a schizophrenia, paranoid, antisocial, and borderline style of
personality disorder,’” and deficits in cognitive functioning].) In this case, in contrast to
Cortes, the prosecutor’s dismissal of Dr. Markman’s testimony was not due to the
exclusion of precise and detailed psychological expert testimony regarding defendant. As
we have stated previously, Dr. Markman’s testimony was not curtailed to the extreme
that the Cortes expert’s was, if at all. Rather, it appears the doctor testified largely as he
intended to testify. After consulting with Dr. Markman at the Evidence Code 402
hearing, defense counsel explained the proposed testimony to the court by saying,
“generally speaking, somebody that experienced what she experienced could very well
have these types of fears.” The prosecutor’s use of that general testimony during
argument was not unduly prejudicial to defendant. It is well established that a prosecutor
enjoys wide latitude during argument to describe the deficiencies in defense counsel’s
tactics and in counsel’s version of the facts. (People v. Bemore (2000) 22 Cal.4th 809,
846; People v. Sassounian (1986) 182 Cal.App.3d 361, 396.) Moreover, the jury was
instructed that, “[i]n their opening statements and closing arguments, the attorneys
discuss the case, but their remarks are not evidence.” (CALCRIM NO. 222.)
We do not believe that the jury’s rejection of the gang allegation—an allegation
that was urged by the prosecutor as an underlying motive—necessarily indicated that one
or more jurors would have harbored a reasonable doubt as to whether defendant acted in
imperfect self-defense if the jury had heard appropriate psychiatric testimony. In this
case, the gang evidence was relatively weak. A reasonable juror could have determined
that, at the moment defendant shot Zaldana and attempted to shoot Nicolis, she was not

20
acting for the benefit of the Avalon gang with the specific intent to further their criminal
activities. She was outside of her gang’s territory, and she did not shout out any gang
name. She did not even mention her gang that afternoon from the time the incident began
until the shooting. This was not a premeditated murder exacting punishment for
disrespecting a gang, as the jury’s second degree murder verdict indicates. A reasonable
jury could have determined that, at the moment she shot at her victims, defendant’s
motives were personal. On a related point, we note that the defendant in Cortes was
convicted of first degree murder, and the court included in its assessment of prejudice the
fact that the evidence of premeditation and deliberation was not overwhelming. (Cortes,
supra, 192 Cal.App.4th at p. 913.) In the instant case, there was strong evidence in
support of defendant’s conviction of second degree murder at a minimum.
The overheard comment regarding a knife, made by an unidentified person during
the 911 call that reported Zaldana’s shooting, is of little significance. Clearly the
comment did not corroborate that Nicolis and the others had knives, as defendant
suggests. The defense did not show who made the comment or what knife was being
referred to. The police found no knives on or near Zaldana.
Finally, we note that the jury found that defendant “personally and intentionally
discharged a firearm,” causing death, within the meaning of section 12022.53,
subdivision (d) in count 1, despite defendant repeatedly saying that it was an accident in
her trial testimony. This finding indicates that the jury did not find defendant’s version of
events to be credible. Given the vague and inconclusive nature of Dr. Markman’s report
and hearing testimony, we believe it is not reasonably probable that, had the jury heard
what little more Dr. Markman may have had to say about defendant’s mental state
(within the limits imposed by sections 28 and 29), the verdict would have been more
favorable for defendant. In other words, it is not reasonably probable that even one juror
would have held out for a verdict of voluntary manslaughter based on unreasonable self-
defense. (Watson, supra, 46 Cal.2d at p. 836; People v. Soojian (2010) 190 Cal.App.4th
491, 519, 521.)

21
II. Lack of Instruction on Lesser Included Offenses of Voluntary Manslaughter and
Attempted Voluntary Manslaughter Based on Sudden Quarrel
A. Defendant’s Argument
Defendant contends the trial court erroneously refused her request to instruct the
jury on voluntary manslaughter and attempted voluntary manslaughter on a sudden
quarrel theory, despite there being sufficient evidence of provocation. Defendant
maintains that the error is arguably of federal constitutional magnitude, requiring review
under the standard of Chapman v. California (1967) 386 U.S. 18.
B. Proceedings Below
During the conference regarding proposed jury instructions, the trial court
indicated that it would read instructions on first and second degree murder, attempted
murder, perfect self-defense, imperfect self-defense, voluntary intoxication, and accident.
Defense counsel noted for the record that he had requested an instruction on heat of
passion for voluntary manslaughter, and the trial court had denied it. The trial court
confirmed this and stated, “this is a self-defense or nothing—or imperfect self-defense.”
C. Relevant Authority
“The trial court is charged with instructing upon every theory of the case
supported by substantial evidence . . . .” (People v. Montoya (1994) 7 Cal.4th 1027,
1047.) “Substantial evidence is evidence of reasonable, credible value.” (People v. Crew
(2003) 31 Cal.4th 822, 835; People v. Quintero (2006) 135 Cal.App.4th 1152, 1165.)
The failure to instruct on a lesser included offense is reviewed de novo. (People v. Licas
(2007) 41 Cal.4th 362, 366.)
Murder is the unlawful killing of a human being with malice aforethought. (§ 187,
subd. (a).) Voluntary manslaughter is the intentional but nonmalicious killing of a human
being. (§ 192; People v. Manriquez (2005) 37 Cal.4th 547, 583.) Voluntary
manslaughter is a lesser included offense of murder. (Manriquez, at p. 583.) A killing
may be reduced from murder to voluntary manslaughter if it occurs “upon a sudden

22
quarrel or heat of passion on sufficient provocation,”4 or if the defendant “kills in the
unreasonable, but good faith, belief that deadly force is necessary in self-defense.” (Ibid.)
“A heat of passion theory of manslaughter has both an objective and a subjective
component. [Citations.]” (People v. Moye (2009) 47 Cal.4th 537, 549.) To satisfy the
objective, or reasonable person, element of heat of passion voluntary manslaughter, the
defendant’s heat of passion must be attributable to sufficient provocation. (Ibid.) “To
satisfy the subjective element of this form of voluntary manslaughter, the accused must
be shown to have killed while under ‘the actual influence of a strong passion’ induced by
such provocation. [Citation.]” (Id. at p. 550.) “‘Heat of passion arises when “at the time

4 The jury instruction for voluntary manslaughter, heat of passion, CALCRIM No.
570, reads as follows: “A killing that would otherwise be murder is reduced to voluntary
manslaughter if the defendant killed someone because of a sudden quarrel or in the heat
of passion. [¶] The defendant killed someone because of a sudden quarrel or in the heat
of passion if: [¶] 1. The defendant was provoked; [¶] 2. As a result of the provocation,
the defendant acted rashly and under the influence of intense emotion that obscured
(his/her) reasoning or judgment; [¶] AND [¶] 3. The provocation would have caused a
person of average disposition to act rashly and without due deliberation, that is, from
passion rather than from judgment; [¶] Heat of passion does not require anger, rage, or
any specific emotion. It can be any violent or intense emotion that causes a person to act
without due deliberation and reflection. [¶] In order for heat of passion to reduce a
murder to voluntary manslaughter, the defendant must have acted under the direct and
immediate influence of provocation as I have defined it. While no specific type of
provocation is required, slight or remote provocation is not sufficient. Sufficient
provocation may occur over a short or long period of time. [¶] It is not enough that the
defendant simply was provoked. The defendant is not allowed to set up (his/her) own
standard of conduct. You must decide whether the defendant was provoked and whether
the provocation was sufficient. In deciding whether the provocation was sufficient,
consider whether a person of average disposition, in the same situation and knowing the
same facts, would have reacted from passion rather than from judgment. [¶] [If enough
time passed between the provocation and the killing for a person of average disposition to
‘cool off’ and regain his or her clear reasoning and judgment, then the killing is not
reduced to voluntary manslaughter on this basis.] [¶] The People have the burden of
proving beyond a reasonable doubt that the defendant did not kill as the result of a sudden
quarrel or in the heat of passion. If the People have not met this burden, you must find
the defendant not guilty of murder.”

23
of the killing, the reason of the accused was obscured or disturbed by passion to such an
extent as would cause the ordinarily reasonable person of average disposition to act
rashly and without deliberation and reflection, and from such passion rather than from
judgment.” [Citations.]’ [Citation.]” (Ibid.)
A defendant may not set up his or her own standard of conduct and justify or
excuse his acts because his passions were aroused, unless the facts and circumstances
were sufficient to arouse the passions of the ordinarily reasonable person. (People v.
Manriquez, supra, 37 Cal.4th at p. 584; People v. Oropeza (2007) 151 Cal.App.4th 73,
82-83.) “A defendant may not provoke a fight, become the aggressor, and, without first
seeking to withdraw from the conflict, kill an adversary and expect to reduce the crime to
manslaughter by merely asserting that it was accomplished upon a sudden quarrel or in
the heat of passion. The claim of provocation cannot be based on events for which the
defendant is culpably responsible.” (Oropeza, at p. 83.)
Attempted voluntary manslaughter is a lesser included offense of attempted
murder.5 (People v. Gutierrez (2003) 112 Cal.App.4th 704, 708.) Attempted voluntary
manslaughter, like attempted murder, requires proof of the intent to kill. (People v.
Montes (2003) 112 Cal.App.4th 1543, 1549-1550.) “When relying on heat of passion as
a partial defense to the crime of attempted murder, both provocation and heat of passion
must be demonstrated.” (Gutierrez, at p. 709.)

5 The jury instruction for attempted voluntary manslaughter, heat of passion,
CALCRIM No. 603, is similar to CALCRIM No. 570 with additional elements, as
follows: “The defendant attempted to kill someone because of a sudden quarrel or in the
heat of passion if: [¶] 1. The defendant took at least one direct but ineffective step
toward killing a person; [¶] The defendant intended to kill that person; [¶] The defendant
attempted the killing because (he/ she) was provoked; [¶] The provocation would have
caused a person of average disposition to act rashly and without due deliberation, that is ,
from passion rather than from judgment; [¶] AND [¶] 5. The attempted killing was a rash
act done under the influence of intense emotion that obscured the defendant’s reasoning
or judgment.”

24
 If the trial court fails in its duty to instruct on a lesser included offense supported
by the evidence, the error is one of state law alone. (People v. Breverman (1998) 19
Cal.4th 142, 165.) It does not require reversal unless an examination of the entire record
establishes a reasonable probability that the error affected the outcome. (Id. at p. 178;
Watson, supra, 46 Cal.2d at p. 836.)
D. No Error
We believe the trial court did not err in refusing to give an instruction on heat-of-
passion voluntary manslaughter or attempted voluntary manslaughter . There was no
substantial evidence in this case of a sudden quarrel or heat of passion. “Adequate
provocation . . . must be affirmatively demonstrated.” (People v. Lee (1999) 20 Cal.4th
47, 60.) No substantial evidence was presented that any provocation by Zaldana or
Nicolis was sufficient to cause an ordinary person of average disposition to be so
inflamed as to lose reason and judgment and begin firing a gun. (People v. Thomas
(2012) 53 Cal.4th 771, 813.)
The prosecution case showed that Nicolis was walking approximately 15 feet
behind defendant when she turned and pulled the trigger. The gun misfired. Zaldana
said, “Run, Earley,” and defendant said “Run?” Zaldana told defendant, “You are not
going to kill my son. You got to kill me first.” Defendant “cocked” the gun, and as we
saw in the video footage, lunged toward Zaldana, shooting her in the head. Neither
Nicolis nor Zaldana had touched defendant or sought to detain her. They were only
calling the police about her gun, which she had brandished, and which constituted
wrongdoing on her part.
Because there was no evidence of provocation in the prosecution case, it was
defendant’s burden to affirmatively demonstrate provocation and heat of passion
sufficient to enable the jury to find these elements beyond a reasonable doubt. (People v.
Dixon (1995) 32 Cal.App.4th 1547, 1552.) Defendant’s testimony failed to do so. The
only encounter that may have been characterized as a quarrel occurred at the entrance to
the park where Nicolis demanded to know why defendant had vandalized his car.
Defendant did not attempt to shoot anyone at that point. She merely brandished her gun

25
and then walked away. She testified that Nicolis threatened her while he followed her,
and she claimed the “gun went off” by accident, not that she shot in anger during a
quarrel. Defendant said that when Nicolis threatened her, she turned around and pointed
the gun at him to scare him. After a few moments, defendant turned around again and the
gun accidentally discharged. In fact, rather than recalling that she shot the gun, she stated
that she merely heard it go off. Defendant did not testify that she shot at Nicolis or
Zaldana in response to any sudden quarrel. We note that defendant herself insisted she
was not angry, but only scared, before she shot Zaldana. Under defendant’s version of
events, the instructions of voluntary manslaughter based on unreasonable self-defense
were the only voluntary manslaughter instructions warranted. The requested instruction
on heat of passion would have been inappropriate and likely to confuse the jury, since
defendant did not testify that she possessed any passionate feeling at the time the shots
were fired.
We also conclude that any error in not reading the jury the requested instructions
was harmless under any standard. (Chapman v. California, supra, 386 U.S. 18; Watson,
supra, 46 Cal.2d at p. 836; see People v. Breverman, supra, 19 Cal.4th at pp. 165, 178.)
The evidence was strong that defendant committed second degree murder of Zaldana at a
minimum. CALCRIM No. 520 instructed the jury that, in order to convict defendant of
murder, the People were required to prove malice aforethought, which may be either
express or implied. In addition to explaining express malice, which occurred if defendant
unlawfully intended to kill, the jury was told that implied malice occurred when the
defendant intentionally committed an act, the natural and probable consequences of
which were dangerous to human life, and when defendant knew at the time she acted, her
act was dangerous to human life. After pulling the trigger and having the gun misfire at
Nicolis at close range, defendant cocked the gun and pulled the trigger again, killing
Zaldana. The evidence thus established overwhelmingly that defendant committed
murder. The evidence was also strong that defendant committed the attempted murder of
Nicolis, firing at him at close range. The jury necessarily could not have found that
defendant acted rashly after being sufficiently provoked.

26
 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

BOREN, P.J.
We concur:

ASHMANN-GERST, J.

CHAVEZ, J.

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