People v. Holland CA2/8

Filed 2/24/23 P. v. Holland CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE, B306813

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. SA09848)
v.

CHARLES ERIC HOLLAND,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County. William L. Sadler, Judge. Reversed and
remanded.
John P. Dwyer, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Wyatt E. Bloomfield and Michael C.
Keller, Deputy Attorneys General, for Plaintiff and Respondent.
_________________________________
 INTRODUCTION
In California, the trial judge in a criminal case is required
to instruct a jury on all lesser included offenses supported by
substantial evidence. A jury convicted Charles Eric Holland of
one count of second degree murder and three counts of assault
with a firearm. It found him not guilty of first degree murder
and attempted murder. The trial court did not instruct the jury
on the lesser included offense of voluntary manslaughter based
on an imperfect defense of others. The record contains
substantial evidence that Holland believed he was acting to
protect his codefendant from imminent great bodily injury or
death. We conclude that the trial court’s failure to instruct the
jury on the lesser included offense of voluntary manslaughter
was error under state law and that error was prejudicial.
We reverse and remand.1
PROCEDURAL BACKGROUND
On February 22, 2018, Holland was charged by information
with one count of murder (Pen. Code, § 187, subd. (a)), three
counts of assault with a firearm (Pen. Code, § 245, subd. (a)(2)),
and one count of attempted murder (Pen. Code, § 644/ § 187,

1
Because we reverse on this basis, we need not reach
Holland’s claim that reversal is also warranted due to violations
of his state and federal constitutional rights to a public trial.
We also do not reach Holland’s claim, which the People concede is
meritorious, that the jury’s findings on gang enhancements must
be reversed, and the case remanded, due to changes in the law
evoked by Assembly Bill No. 333 (2021-2022 Reg. Sess.)
(Stats. 2021, ch. 699).

2
 2
subd. (a)). Each count included firearm and gang allegations.
Two codefendants were each charged with one count of murder,
assault with a firearm, and attempted murder. One codefendant
entered a plea before trial. The other entered a plea during trial.
Trial was by jury. Holland did not testify.
In March 2020, a jury convicted Holland of one count of
second degree murder and three counts of assault with a firearm.
It found the related firearm and gang allegations true. It
acquitted Holland of first degree murder and attempted murder.
The court sentenced Holland to a term of 15 years to life in
state prison on the murder conviction, plus an additional term of
25 years to life for the firearm enhancement, for a total of 40
years to life. The court imposed a concurrent determinate
sentence for each of the remaining convictions.
In July 2020, Holland filed a timely notice of appeal.
FACTUAL BACKGROUND3
On the afternoon of November 15, 2016, Jacare Smith was
shot and killed in front of Young’s Liquor Store Mart. Security
video footage from the incident showed a car pulling into the
parking lot of the store and backing into a parking space. The
car had three people in it. One was Saladin Minor, who testified
at trial that he was present. According to Minor, the other two
individuals were William Long and Holland. Holland, Minor, and

2
All subsequent undesignated statutory references are to
the Penal Code.

3
The factual background is derived from the prosecution’s
evidence. The defense rested without calling any witnesses.

3
Long were members of the Hawthorne Thug Family criminal
street gang.
After Minor parked the car, Long got out and headed
toward the store. Long never went inside, but instead stopped
outside and exchanged words with Antwoine Robinson. Robinson
was a member of the Campanella Park Piru criminal street gang.
Minor followed Long out of the car and stood a “few paces” behind
while Long conversed with Robinson. Video of the incident
showed that a little later someone got out of the rear seat of the
car and stood next to it. This individual then ran toward the
store while pointing a gun.4 Smith, who was standing near
Robinson, was shot and died at the scene from a single bullet
wound to the chest. Two other individuals had just walked out of
the store. One was shot in the hand. Robinson was not hit.
At trial, Minor described Robinson as “really aggressive,”
“hella aggressive,” and “super aggressive” in his stare as Long
and Minor approached the store, and in his tone while speaking
with Long. Minor testified that in street gang culture, the stare
that Robinson gave Long was like, “‘[w]hat’s up? You’re looking at
me like we got a problem.’” He also testified that in street gang
culture this kind of stare makes the person being stared at think,
“[w]hy are you staring at me? You must think I am an enemy, or
something.”

4
The prosecution’s theory of the case was that Holland was
the shooter. At trial, defense counsel argued that Holland was
not the shooter. Whether or not Holland was the shooter is not
relevant to the issues on appeal, so we do not recite the evidence
relevant to this question.

4
 According to Robinson’s testimony at trial, Long came up to
him and said “what’s up” and asked Robinson where he was from.
Robinson responded by asking Long where he was from. Long
replied that he was from “Thug Family.” Long then again asked
Robinson where he was from in a “relaxed and cool” manner. It
was only after Robinson responded that he was from a different
street gang than Long was from that Robinson testified the
conversation “turned up a notch.” According to Robinson, Long
then said “this is my city.” At this point, Robinson “got turned up
too,” became “angry” and “livid,” and was “ready to box.”
Robinson responded to Long by also stating, “[t]his is my city.”
Based on his experience as a gang member, Robinson thought
there was going to be a fight.
At this point, according to Minor, both Long and Robinson
were using “loud” voices. Minor testified that Long and Robinson
were “face to face” and Robinson was being “disrespectful.”
Minor thought Long might fight Robinson, stating “I thought he
was going to fire him. I thought he was going to sock him—we
would have kicked their ass.”
Long then turned his back on Robinson, and Minor heard
Long call Robinson a derogatory name. Minor also saw Long
make a hand gesture when he turned his back, which Minor
interpreted as “fanning [Robinson] off.”
An uninvolved witness also saw and heard the interaction
between Long and Robinson. This same witness saw Long waive
his arm, and then a man holding a gun get out of the backseat of
the car. The witness stated that he saw Long, “waiving his hand
telling the guy to come back out from the back seat of the car,”
and that as soon as Long raised his hand, the person in the car
immediately got out, like Long was “telling him to get out of the

5
car or something like that.” The man who had been in the back
seat of the car then ran toward the area where Robinson, Long,
and Minor were standing and began shooting. At trial, this same
uninvolved witness identified Holland as the shooter. Security
camera footage also showed Long raising his hand.
According to Detective Jackson, the prosecution’s gang
expert, when one gang member asks another where he is from
and the answer shows the gang member is a “potential rival, then
an attack can occur.” Detective Jackson explicitly agreed with
testimony by Minor that any confrontation with a perceived gang
enemy could lead to a fight. Detective Jackson further testified
that unless one of the gang members backs down, “there will be a
fight, a stabbing or shooting, and someone will get killed over it.”
Minor testified that after the shooting, Minor, Long, and
Holland ran back to the car and drove away. Minor demanded to
know why Holland had fired the gun, and Holland explained that
he was defending Long and Minor. Specifically, Holland told
Minor, “Shit, I thought he was in it.” Minor explained at trial
that this meant that Holland said he was “defending us.” Minor
also told the jury that Holland apologized by saying, “my bad.”
Minor, Long, and Holland drove to a McDonald’s
restaurant, where Holland “kept repeating, the whole time,
‘I thought they was into it. I thought they was into it. They [sic]
my homies.’ ” Minor testified that he thought the statement by
Holland that they were “into it” meant that Minor and Long were
“into a situation, into an argument, [or] a confrontation.”
Andrea Berganza Martinez testified that either later the
day of the shooting or the next day, several people, including
Holland, were at her house and talking about the shooting.
They were joking and laughing but Holland was quiet. Berganza

6
Martinez described Holland as, “[h]e was just quiet. I don’t even
know if he was fully there.” “He was in his own zone.” “He
wasn’t really mentally there.” He was acting “weird[].”
Eight days after the shooting, Holland was arrested as the
alleged shooter.
Holland was subsequently convicted of second degree
murder of Smith and acquitted of first degree murder of Smith.
The trial court instructed the jury on transferred intent, with the
prosecution arguing that Holland intended to kill Robinson and
shot Smith by mistake.
Holland was also convicted of assaulting Robinson with a
firearm, but acquitted of attempted murder of Robinson.
DISCUSSION
Holland argues that the trial court’s failure to instruct the
jury on voluntary manslaughter based on an imperfect defense of
others was a violation of state law and his federal due process
rights. The People argue that the instruction was not supported
by substantial evidence, so there was no error. The People
further assert that any error was harmless because the evidence
of Holland acting in an imperfect defense of others was
insubstantial.
We conclude that there was sufficient evidence to require
the trial court to give an instruction on voluntary manslaughter.
We also conclude that there is a reasonable probability Holland
would have obtained a more favorable outcome if the instruction
had been given. Accordingly, the error was not harmless under
state law.

7
I. Standard of Review.
On appeal, we review de novo the trial court’s failure to
instruct on a lesser included offense. (People v. Cook (2006) 39
Cal.4th 566, 596.) We review the evidence in the light most
favorable to the defendant. (People v. Brothers (2015) 236
Cal.App.4th 24, 30 (Brothers).) “[U]ncertainty about whether the
evidence is sufficient to warrant instructions should be resolved
in favor of the accused.” (People v. Vasquez (2018) 30 Cal.App.5th
786, 792, citing People v. Tufunga (1999) 21 Cal.4th 935, 944.)
II. Instructional Duty.
Under California law, a trial court has a sua sponte duty
“to instruct fully on all lesser necessarily included offenses
supported by the evidence.” (People v. Breverman (1998) 19
Cal.4th 142, 148–149 (Breverman), abrogated on another ground
by amendment of § 189.) This requirement is implicated when
there is “substantial evidence of [the] lesser offense” such that
the jury could have concluded the defendant committed the lesser
offense rather than the greater offense. (Id. at pp. 162, 177.)
“In deciding whether evidence is ‘substantial’ in this
context, a court determines only its bare legal sufficiency, not its
weight.” (Breverman, supra, 19 Cal.4th at p. 177.) “[C]ourts
should not evaluate the credibility of witnesses, a task for the
jury.” (Id. at p. 162.)
“ ‘Substantial evidence is evidence sufficient to “deserve
consideration by the jury,” that is, evidence that a reasonable
jury could find persuasive.’ ” (People v. Landry (2016) 2 Cal.5th
52, 120 (Landry), quoting People v. Barton (1995) 12 Cal.4th 186,
201, fn. 8.) Even evidence that is “less than convincing” may
constitute substantial evidence and trigger the lesser included-

8
offense requirement. (People v. Turner (1990) 50 Cal.3d 668,
690.)
III. Background on Homicide and Voluntary
Manslaughter Based on Imperfect Defense of Others.
Murder is “the unlawful killing of a human being, or a
fetus, with malice aforethought.” (§ 187, subd. (a).) “ ‘A
defendant who commits an intentional and unlawful killing but
who lacks malice is guilty of . . . voluntary manslaughter.’ ”
(Breverman, supra, 19 Cal.4th at p. 153, quoting § 192.)
Voluntary manslaughter is a lesser included offense of
murder. (People v. Gonzalez (2018) 5 Cal.5th 186, 197 [“Lesser
included offenses of first degree premeditated murder include
second degree murder, voluntary manslaughter, and involuntary
manslaughter”]; Breverman, supra, 19 Cal.4th at p. 154.)
“A killing committed because of an unreasonable belief in
the need for self-defense is voluntary manslaughter, not murder.”
(People v. Elmore (2014) 59 Cal.4th 121, 129 (Elmore).)
“[I]mperfect self-defense is not an affirmative defense, but a
description of one type of voluntary manslaughter.” (People v.
Manriquez (2005) 37 Cal.4th 547, 581 (Manriquez).) A killing
based upon an unreasonable belief in the need for self-defense
obviates malice because malice cannot coexist with an actual
belief that the lethal act was necessary to avoid death or serious
bodily injury. (Ibid, citing People v. Beltran (2013) 56 Cal.4th
935, 951.)
A trial court has a sua sponte duty to instruct on voluntary
manslaughter as a lesser included offense of murder whenever
there is evidence from which a reasonable jury could conclude
that a manslaughter, but not a murder, was committed.

9
(Elmore, supra, 59 Cal.4th at p. 134; Breverman, supra, 19
Cal.4th at p. 162.)
“[S]ubstantial evidence of . . . unreasonable self-defense
may exist, and the duty to instruct sua sponte may therefore
arise, even when the defendant claims that the killing was
accidental, or that the state[] of mind on which th[is] theory
depend[s] w[as] absent . . . .” (Breverman, supra, 19 Cal.4th at
p. 163, fn. 10.) Thus, the requirement to instruct fully on all
lesser necessarily included offenses supported by the evidence
arises “regardless of the trial theories or tactics the defendant
has actually pursued.” (Id. at p. 162.)
IV. There Was Substantial Evidence for the Jury to
Conclude Holland Acted Without Malice Based on an
Imperfect Defense of Others.
“[U]nreasonable self-defense involves a misperception of
objective circumstances.” (Elmore, supra, 59 Cal.4th at p. 134.)
It is based on a “mistake of fact.” (Id. at p. 136.) It requires “an
honest but unreasonable belief in the necessity to defend against
imminent peril to life or great bodily injury . . . . [I]t is most
accurately characterized as an actual but unreasonable belief.”
(Id. at p. 134.) This doctrine is narrow and applies only when the
defendant has an actual belief in the need for self-defense and
fears immediate harm. (Landry, supra, 2 Cal.5th at pp. 97–98.)
The doctrine of imperfect self-defense also applies to the
unreasonable belief in the need for self-defense of others.
(People v. Randle (2005) 35 Cal.4th 987, 997, overruled on
another ground in People v. Chun (2009) 45 Cal.4th 1172, 1201;
see also People v. Trujeque (2015) 61 Cal.4th 227, 270
[reaffirming People v. Randle for the proposition that the doctrine
of imperfect self-defense applies to self-defense of others].)

10
 We conclude that there is substantial evidence that
Holland had an actual belief that he needed to defend Long and
Minor from imminent great bodily injury or death. This evidence
is not from Holland’s own testimony, but it need not be. A
defendant is not required to testify to his or her honest belief.
(People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262, citing
People v. De Leon (1992) 10 Cal.App.4th 815, 824.) The testimony
of a single witness may constitute substantial evidence. (People
v. Steskal (2021) 11 Cal.5th 332, 346 (Steskal), citing People v.
Lewis (2001) 25 Cal. 4th 610, 646.) As we previously held, it is
“for the jury sitting as the trier of fact to decide whether
appellant actually feared serious injury or death” based on
“ ‘all the relevant facts.’ ” (People v. Vasquez (2006) 136
Cal.App.4th 1176, 1179 (Vasquez), citing In re Christian S. (1994)
7 Cal.4th 768, 783, italics added.)
There is evidence that the interaction between Robinson
and Long was escalating into a fight. There is also evidence that
Holland could see, and possibly hear, the interaction, so was
aware of the escalation. Robinson was acting “super aggressive.”
Robinson and Long were using “loud” voices. Robinson’s tone was
“aggressive.” When Long waived his hand, Holland immediately
got out of the car and ran towards the store shooting a gun, like
Long was “telling him to get out of the car or something like
that.” Video footage showed the person in the back seat of the car
getting out, standing next to the car and looking towards the
store, and then running towards the store shooting. A reasonable
juror could have determined from this evidence that Holland was
watching the interaction between Robinson and Long, may have
heard it as well, and viewed Long’s hand as a summons for help.

11
 The evidence regarding gang interactions in general,
together with evidence of the escalating confrontation, supports
an actual, albeit mistaken, belief by Holland that he needed to
defend Long and Minor from imminent injury or death. Robinson
himself testified he was “angry,” “livid,” and “ready to box.”
Minor testified that he thought Long was about to fight Robinson.
Detective Jackson testified that when one gang member asks
another where he is from and the answer shows he a “potential
rival, then an attack can occur.” Detective Jackson further stated
that unless one of the gang members backs down, “there will be a
fight, a stabbing or shooting, and someone will get killed over it.”
(Italics added.)
Holland’s statements after the shooting also suggest that
he believed that he needed to defend Long and Minor. Remarks
from after the event can be evidence of an actual belief at the
time of the event. (Steskal, supra, 11 Cal.5th at p. 346.) Right
after the shooting Holland kept repeating, “ ‘I thought they was
into it. I thought they was into it. They [sic] my homies.’ ”
Minor understood this to mean that Holland thought he was
defending Long and Minor.5
Holland’s actions shortly after the shooting also suggest
that he acted with a mistaken belief in the need for self-defense
of Long and Minor. A defendant’s actions after an offense are
relevant to his or her mental state during the offense. (People v.
Thompson (2010) 49 Cal.4th 79, 113 [“[P]ostcrime actions and

5
The People argue that Minor’s interpretation of Holland’s
statement should not be considered. They cite no legal authority
for this contention. It is for the jury to decide what Holland
meant by this statement based on all the facts. (See Vasquez,
supra, 136 Cal.App.4th at p. 1179.)

12
statements can support a finding that defendant committed a
murder for which his specific mental state is established by his
actions before and during the crime”].) Berganza Martinez
testified that Holland was acting “weird[].” While others
discussed the shooting, Holland was “just quiet. I don’t even
know if he was fully there.” “He was in his own zone.” “He
wasn’t really mentally there.” (Cf. People v. Boatman (2013)
221 Cal.App.4th 1253, 1267 [“Defendant’s behavior following the
shooting is of someone horrified and distraught about what he
had done, not someone who had just fulfilled a preconceived
plan”].) While there may be multiple explanations for why
Holland behaved as he did after the shooting, one explanation
arguably supported by the evidence is that he felt bad that he
had just needlessly killed someone based on his
misunderstanding of the circumstances.
The People’s reliance on People v. Simon (2016) 1 Cal.5th
98 to argue the evidence was insufficient to warrant an
instruction on voluntary manslaughter is unpersuasive. In
Simon, the defendant killed a member of a rival gang after the
two got into a verbal altercation. (Id. at pp. 108–109.) The
factual similarities end there. Our Supreme Court found no error
in failing to instruct the jury on imperfect self-defense in Simon
because there was insufficient evidence that the defendant
believed he needed to act in self-defense. (Id. at p. 132.) In
Simon, the victim said he was from a rival gang, and then the
defendant asked someone for a gun and began cursing at the
victim. (Id. at p. 133.) While the defendant claimed he then
calmed down in the bathroom, the evidence belied this assertion.
The evidence showed the defendant walking over to another rival
gang member and elbowing him in the face. (Ibid.) Then the

13
defendant threatened to shoot a person who intervened.
The defendant began to argue once again with the victim and
shot him. (Ibid.) The defendant did not “point to any evidence
indicating that [the victim] was the aggressor. Nor does Simon
present evidence that he ever perceived that [the victim]—who
was unarmed—posed a risk of imminent peril.” (Ibid.) Citing its
decision in People v. Manriquez, supra, 37 Cal.4th 547, where the
record was similarly “ ‘devoid of evidence’ ” supporting the
defendant’s subjective fear, the Supreme Court in Simon upheld
the trial court’s refusal to instruct on imperfect self-defense.
(Simon, supra, at p. 133, citing Manriquez, supra, at p. 581.)
Unlike in Simon and Manriquez, the record is not “devoid
of evidence” supporting Holland’s actual belief that he needed to
protect Long and Minor from imminent harm. As detailed ante,
there is evidence that the confrontation between Robinson and
Long was escalating into a fight. There is also evidence that
Holland exited the car right after Long held up his hand. A
reasonable juror could have concluded that Holland viewed
Long’s hand movement as an indication that Long needed his
immediate help from imminent harm. There is also evidence that
this kind of gang confrontation would likely escalate. The gang
expert testified that someone would get killed if one party did not
back down. There is no evidence that Robinson backed down, or
that Holland had reason to believe that he had. Moreover,
Holland’s statements and actions after the shooting, viewed in
the light most favorable to Holland6 (Brothers, supra, 236

6
It is certainly conceivable a jury on remand, employing a
neutral view of the evidence, could agree with the People that

14
Cal.App.4th at p. 30), suggest that he acted with an actual belief
in the need for self-defense of his fellow gang members.
The People point out that the doctrine of imperfect self-
defense “may not be invoked by a defendant who, through his
own wrongful conduct (e.g., the initiation of a physical attack or
the commission of a felony), has created circumstances under
which his adversary’s attack or pursuit is legally justified.”
(People v. Enraca (2012) 53 Cal.4th 735, 761.) The People argue
that Long provoked the confrontation with Robinson, and thus
Holland cannot claim imperfect self-defense of others. We reject
this contention.
First, the record is not clear that Long instigated the
confrontation, at least without some responsibility from
Robinson. Minor testified that Robinson stared aggressively at
Long and Minor as they approached the store, as if to say,
“ ‘What’s up? You’re looking at me like we got a problem.’ ”
Second, whether Robinson or Long provoked the
confrontation is irrelevant. The premise underlying the rule that
a defendant cannot incite a fight and then claim an actual belief
in the need for self-defense is that after a victim lawfully attacks
back in self-defense, the instigator cannot reasonably claim that
he or she counterattacked in self-defense. (See Vasquez, supra,
136 Cal.App.4th at p. 1180, discussing Randle, supra, 35 Cal.4th
at p. 991.) This premise is inapplicable to the facts here. Holland
did not start a fight. Robinson did not use force against Long, to
which Holland then counterattacked. Holland may have reacted
to Long’s hand motion by shooting because he harbored an actual

Holland did not actually believe his intervention was necessary.
But on appeal we are obligated to consider the evidence in a very
different light that favors Holland.

15
belief in the need to defend Long and Minor from imminent,
significant bodily harm or death.7 That was the relevant
question. “It was for the jury sitting as the trier of fact to decide
whether [Holland] actually feared serious injury or
death . . . . [Citations.]” (Vasquez, supra, 136 Cal.App.4th at
p. 1179.)
The People’s reliance on People v. Franco (1994) 24
Cal.App.4th 1528, is similarly misplaced. In Franco, the victim
possibly made a hand movement that could have been viewed as
threatening to the defendant. This hand movement was made
after the defendant, who went out searching for the victim
specifically, pointed a rifle at the victim and shouted a derogatory
phrase about the victim’s gang. (Id. at pp. 1540–1541.) The
Court of Appeal concluded that any hand movement by the victim
was insufficient by itself to warrant an imperfect self-defense
instruction when the defendant subsequently shot and killed the
victim. (Ibid.)
In sum, viewing the evidence in the light most favorable to
Holland, a reasonable juror could have concluded that Holland
acted upon an actual, albeit mistaken, belief that he needed to
defend Long and Minor from imminent great bodily harm or
death. Any uncertainly about whether the evidence was
sufficient to warrant the jury instruction must be resolved in
favor of Holland. (People v. Vasquez, supra, 30 Cal.App.5th at

7
If Long had called out to Holland, “Help, this rival gang
member Minor is about to attack me with potentially lethal force
unless you stop him,” the basis for an imperfect self-defense
instruction would be clear. What Holland observed, arguably, is
the equivalent of such a call for help.

16
p. 792.) Accordingly, the trial court was required to instruct on
the lesser included offense of voluntary manslaughter.
V. The Error Was Prejudicial Under State Law
In a noncapital case, the erroneous failure to instruct on a
lesser included offense is typically an error of state law. (People
v. Rogers (2006) 39 Cal.4th 826, 867–868 (Rogers); see also
Gonzalez, supra, 5 Cal.5th at p. 198 [“[N]either we nor the United
States Supreme Court recognizes a . . . duty to instruct on lesser
included offenses under federal constitutional law—at least in
noncapital cases”] (Italics omitted.).)8

8
In addition to the standard for determining prejudice for
state-law error in People v. Watson (1956) 46 Cal.2d 818
(Watson), there is a standard for assessing prejudice when the
error violates the federal Constitution. This is the requirement
that harmlessness must be found beyond a reasonable doubt
under Chapman v. California (1967) 386 U.S. 18. When the
defense requests the instruction, the refusal to instruct on a
lesser included offense may also violate the federal constitutional
requirement that the courts afford every criminal defendant
“ ‘a meaningful opportunity to present a complete defense.’ ”
(Crane v. Kentucky (1986) 476 U.S. 683, 690; Rogers, supra,
39 Cal.4th at p. 868, fn. 16.) This standard is premised on the
defendant’s right to a meaningful opportunity to present a
complete defense guaranteed by the Fourteenth Amendment to
the United States Constitution. (Rogers, supra, 39 Cal.4th at
pp. 871–872.)
Here, defense counsel never requested the jury instruction.
Defense counsel’s theory of the case was that Holland was not the
actual killer. It does not appear that the federal constitutional
right to present a complete defense was implicated by the failure

17
 Prejudice resulting from a trial court’s failure to instruct on
a lesser included homicide offense is analyzed under the harmless
error test in Watson, supra, 46 Cal.2d at page 836. (Gonzalez,
supra, 5 Cal.5th at p. 195.) Under this standard, we must
reverse if there is a reasonable probability that the defendant
would have obtained a more favorable outcome if the instruction
had been given. (Ibid.) A “reasonable probability” in this context
“does not mean more likely than not, but merely a reasonable
chance, more than an abstract possibility. [Citations.]” (College
Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 715.) The
error is prejudicial when it is “ ‘probably sufficient to undermine
confidence in the outcome.’ ” (Ibid., quoting Strickland v.
Washington (1984) 466 U.S. 668, 669.)
We conclude that there is a reasonable chance that at least
one juror would have voted to convict Holland of voluntary
manslaughter based on the imperfect defense of others if the jury
had been so instructed, as explained below.
A. The evidence of Holland’s malice was not
particularly strong.
First, the evidence of Holland’s malice was not particularly
strong, as evidenced by the jury’s own actions. “The prejudice
arising from the failure to instruct on lesser included offenses
and defenses creates a specific kind of risk—that the jury, faced
with an all-or-nothing choice . . . convicted defendant[] [of the

to give the jury instruction on voluntary manslaughter, since it
was not requested.
Regardless, we need not determine whether the failure to
instruct here was an error of federal constitutional law because
we determine that there was an error under state law, and that
error was not harmless.

18
higher offense] even though the prosecution failed to satisfy its
burden.” (Gonzalez, supra, 5 Cal.5th at p. 191.) The duty to
instruct on the lesser included offense ensures that the jury’s
“ ‘verdict is no harsher . . . than the evidence merits’ ” and
prevents the jury from facing the all or nothing choice of
“ ‘ “conviction of the stated offense on the one hand, or complete
acquittal on the other.” ’ ” (Id. at p. 196.) A jury might otherwise
be tempted to convict of an offense greater than that supported
by the evidence rather than acquit altogether. (Id. at pp. 196–
197; People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547.)
The jury faced this all-or-nothing situation. The jury
acquitted Holland of first degree murder of Smith, and instead
convicted him of second degree murder.9 At trial, testimony by
Minor and a witness identified Holland as the shooter. No other
possible shooters were identified in the evidence. Thus, the jury
may have not wanted to acquit Holland, but its only other option
was to convict Holland of second degree murder. In addition,
Holland was charged with attempted murder of Robinson, but the
jury acquitted and instead convicted him of assaulting Robinson
with a firearm.
The jury’s verdicts suggest that the jury may have
harbored doubts about Holland’s state of mind as to malice.
As we said in another case when a jury acquitted the appellant of
first degree murder and instead convicted him of the lesser
included offense of second degree murder, “[t]he jury’s verdict
implies it found appellant formed his intent to kill only under the
immediate circumstances of the confrontation in the alley, which

9
This was based on a jury instruction of transferred intent
that Holland intended to shoot Robinson but shot Smith instead.

19
is consistent with second degree murder but is also equally
consistent with voluntary manslaughter arising from imperfect
self-defense. Because the evidence could have allowed a
reasonable jury to conclude appellant believed his life was in
imminent peril . . . the murder conviction cannot stand and
appellant must be retried.” (Vasquez, supra, 136 Cal.App.4th at
p. 1180, italics added.) Here, the failure to instruct on the lessor
included offense of voluntary manslaughter was similarly
reversible error, particularly in the context of a jury that
acquitted Holland of some of the charges. (Cf. People v. Brown
(2016) 245 Cal.App.4th 140, 155–156 [holding that failure to give
lesser included offense instruction was reversible error where
jury convicted on a different lesser included offense, which
showed the jury had doubts about the prosecution’s case and
“a readiness to scrutinize the evidence, draw its own independent
conclusions . . . of culpability, and convict on lesser charges than
the prosecutor requested”].)
Second, the evidence of voluntary manslaughter based on
imperfect self-defense of others is not “very weak” as the People
argue. We disagree with the People for reasons discussed ante.10

10
The People also argue that the jury’s finding on the gang
enhancement is at “odds with a notion that appellant killed in an
honest belief in the need to protect against imminent harm,” so
any error was harmless. The People do not elaborate nor cite any
legal authority in support of this claim. Both murder and
voluntary manslaughter are defined as “violent felon[ies]” under
section 667.5, subdivision (c)(1). Both are crimes to which the
gang enhancement applies because the gang enhancement
applies to “violent felon[ies]” under section 186.22, subdivision

20
 In sum, at least one reasonable juror could have found that
the evidence supported finding that Holland had an actual belief
in the need for self-defense of Long and Minor against imminent
and great bodily injury or death. We therefore conclude it is
reasonably probable Holland would have achieved a better result
if the jury had been properly instructed. Holland’s convictions
must be reversed.
DISPOSITION
Except with respect to the counts upon which the jury
returned a verdict of acquittal, the judgment is reversed and the
matter is remanded for a new trial.

*
HARUTUNIAN, J.
I concur:

STRATTON, P. J.

(b)(1)(C). Thus, both a conviction for voluntary manslaughter
and one for murder carries the same gang enhancement under
section 186.22, subdivision (b)(1)(C) of an additional term of 10
years.

*
Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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People v. Charles Eric Holland
B306813
GRIMES, J., Dissenting.

I respectfully dissent. I do not believe it was error for the
trial court to not instruct on imperfect self-defense because I do
not think there was evidence to warrant such an instruction.
“A trial court must instruct a jury regarding lesser included
offenses ‘ “ ‘whenever evidence that the defendant is guilty only of
the lesser offense is “substantial enough to merit consideration”
by the jury. [Citations.] “Substantial evidence” in this context is
“ ‘evidence from which a jury composed of reasonable [persons]
could . . . conclude[]’ ” that the lesser offense, but not the greater,
was committed.’ ” ’ ” (People v. Landry (2016) 2 Cal.5th 52, 98
(Landry).)
The doctrine of imperfect self-defense, or defense of others,
applies only in limited factual situations. Where there is
substantial evidence the defendant killed another person because
the defendant actually, but unreasonably, believed he, or another
person, was in imminent danger of death or great bodily injury,
the jury should be instructed on imperfect self-defense, whether
the defendant asks for the instruction or not. (People v.
Manriquez (2005) 37 Cal.4th 547, 581 (Manriquez).)
I do not think there was any evidence of imminent danger
of death or great bodily injury. The confrontation defendant
Charles Eric Holland observed that resulted in the fatal shooting,
was between his fellow Hawthorne Thug Family gang member,
William Long, and a rival gang member, Antwoine Robinson.
The only behavior attributed to Robinson in the majority is that
he gave Long an “aggressive” stare as Long was walking toward a

1
liquor store, he responded to Long’s question asking where he
was from by asking Long where he was from, and responded to
Long’s statement “this is my city” by saying “[t]his is my city.”
That is pretty mild stuff, even if you throw in that the two men
appeared angry and confrontational. Long then turned his back
on Robinson to walk away—not an act of one who thinks he is
about to be attacked with lethal force. Then, with his back to
Robinson, Long dismissively waved his hand in the air and
hurled an insult at Robinson, calling him a derogatory name,
supporting the inference he was “fanning off” or blowing off
Robinson, as attested to by Saladin Minor, another Hawthorne
Thug Family gang member standing nearby. The opinion does
not state Robinson responded at all to the insult or hand gesture.
There is no evidence any weapons were brandished by
anyone. Yet, in response solely to this verbal argument, one that
Long had already started to walk away from, defendant got out of
the car and ran toward Robinson and Long shooting his gun
multiple times and fatally wounding Jacare Smith, who was
standing near Robinson.
I do not think there is any evidence that reasonably
supports an inference defendant actually believed lethal force
was necessary to defend Long. I do not think there is any
evidence that reasonably supports an inference defendant feared
immediate death or great bodily injury to Long. Long’s hand
gesture, however it may have been understood—even if
understood as a summons for help—does not support an inference
that defendant believed Robinson was about to use deadly force,
or any force, against Long; at least, not without any evidence that
Robinson wielded a weapon, or verbally threatened bodily harm;

2
or lunged toward Long as he walked away. There was no such
evidence.
Landry instructs that “[t]he belief required to support
imperfect self-defense is that the defendant ‘was in imminent
danger of death or great bodily injury.’ [Citation.] This doctrine
is a ‘ “narrow” ’ one and ‘will apply only when the defendant has
an actual belief in the need for self-defense and only when the
defendant fears immediate harm that “ ‘ “must be instantly dealt
with.” ’ ” ’ ” (Landry, supra, 2 Cal.5th at pp. 97–98, first italics
added; accord, Manriquez, supra, 37 Cal.4th at p. 581; People v.
Humphrey (1996) 13 Cal.4th 1073, 1082 [“ ‘The defendant’s fear
must be of imminent danger to life or great bodily injury.’ ”].)
The evidence here simply does not comport with Landry.
The evidence supports a reasonable inference that Long got into a
verbal joust with Robinson that was loud and momentarily
confrontational but did not progress further. The evidence that
defendant acted “weird[]” and “quiet” after the shooting is not
akin to behavior that he was “ ‘horrified and distraught’ ” at what
he had done, as the majority suggests. (Maj. opn., ante, at p. 13,
quoting People v. Boatman (2013) 221 Cal.App.4th 1253, 1267.)
It supports a reasonable inference of remorse perhaps, but that
was more likely due to defendant realizing he screwed up by
killing without his gang’s support or that he feared being
arrested.
That we must resolve uncertainties in favor of the accused
does not assist defendant here. Nor does the fact that an expert
testified that interactions between rival gang members are
fraught and often lead to violence. There simply is no evidence to
support the instruction. If this evidentiary record merits an
imperfect self-defense instruction, then every gang member who

3
purports to defend a fellow gang member engaged in a verbal
argument by rushing in with guns blazing will be justified in
asking for and obtaining an imperfect self-defense instruction.
That is not what the law dictates.
I would affirm defendant’s conviction for second degree
murder and three counts of assault. I would reverse the gang
enhancement and remand for further proceedings in light of the
passage, while this appeal was pending, of Assembly Bill No. 333
(2021–2022 Reg. Sess.). (Stats. 2021, ch. 699.)

GRIMES, J.

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