People v. Daniels CA2/2

Filed 7/26/21 P. v. Daniels 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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This opinion has not been certified for publication or ordered published for purposes of rule
8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B301038

Plaintiff and Respondent, (Los Angeles County
Super. Ct.
v. No. NA106266)

JASON MONROE DANIELS,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Judith Levey Meyer, Judge. Modified and
affirmed with directions.
Edward J. Haggerty, under appointment by the Court of
Appeal, for Defendant and Appellant.
Matthew Rodriquez, Acting Attorney General, and Rob
Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Susan Sullivan Pithey, Senior Assistant
Attorney General, Blythe J. Leszkay and David W. Williams,
Deputy Attorneys General, for Plaintiff and Respondent.
 Defendant and appellant Jason Monroe Daniels was
convicted by a jury of second degree murder, felony child abuse,
and possession of firearm by a felon. The jury found true
firearm-use and prior conviction enhancements. On appeal,
Daniels contends the trial court prejudicially erred in refusing to
appoint advisory counsel and in revoking his pro se status, and
made instructional errors requiring reversal. We modify the
judgment to strike prior prison term enhancements pursuant to
Senate Bill No. 136 (2019–2020 Reg. Sess.) and to reflect
additional presentence custody credits. We affirm the judgment
as modified.
FACTS
On April 19, 2017, William Hayes suffered a fatal gunshot
wound to his chest. The shooting occurred outside the home of
Daniels’s girlfriend Shawntee Falconer (Shawntee) and her
family. Daniels had been residing with Shawntee until the
afternoon of that day, when she kicked him out following an
argument. Shawntee then went to work, and Daniels reentered
the home in her absence. That night, Hayes showed up at the
home unexpectedly to see Shawntee’s two children, a 12-year-old
daughter and a six-year-old son. Hayes had been their
stepfather. He and the children visited outside. Shawntee was
still at work.
Shawntee’s brother and mother testified Daniels was
visibly upset by Hayes’s appearance. After Hayes arrived,
Daniels told Shawntee over the phone, “I’m about to pop cuz.”
Daniels threw down the phone and walked outside to confront
Hayes. Daniels produced a gun and shot Hayes once in the chest,
narrowly missing Shawntee’s son. The bullet struck Hayes in the
heart, and he collapsed to the ground, where he was found by

2
police.1 Daniels immediately fled. He was later arrested in Las
Vegas.
Daniels testified he was unarmed when he confronted
Hayes outside. The children and other adults were inside the
home. Daniels realized Hayes was armed. The two men
struggled over Hayes’s gun, and the weapon fired once and fell to
the ground. Hayes grabbed his arm or shoulder and entered the
home. Daniels picked up the gun, hid it in the garage, and drove
away.
PROCEDURE
Daniels made three unsuccessful attempts to replace his
appointed counsel before trial (People v. Marsden (1970) 2 Cal.3d
118). Thereafter, his request to represent himself was granted
(Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525, 45
L.Ed.2d 562] (Faretta)). The trial court relieved the public
defender’s office and appointed standby counsel, who was present
during trial.
In pretrial proceedings, Daniels was verbally combative
with the trial court. On one occasion, he refused to leave his
holding cell, prompting the trial court to admonish Daniels that
his pro se status could be revoked if he refused to comply with
court orders. During voir dire, the court made a point of giving
Daniels a general advisement that if he refused to leave the
holding cell “or anything like that” during trial, his pro se status
could be revoked.

1 Shawntee’s brother and mother each telephoned 911.
Audio recordings and transcripts of the phone calls were provided
to the jury.

3
 When trial was under way, Daniels accused the trial court
of “side-track[ing]” him, “disrespect[ing]” him, or infringing his
constitutional rights. He also berated the court when rulings
were not in his favor. Daniels engaged in two separate outbursts
in front of the jury. Each time, the court warned Daniels that his
pro se status could be terminated. Daniels’s third outburst
happened during his closing argument. The court revoked his
pro se status, and standby counsel completed Daniels’s closing
argument.
A jury convicted Daniels of second degree murder (Pen.
Code, § 187, subd. (a)2), felony child abuse (§ 273a, subd. (a)), and
possession of a firearm by a felon3 (§ 29800, subd. (a)(1)). The
jury found true enhancement allegations that Daniels had
personally and intentionally discharged a firearm when
committing the murder (§ 12022.53, subd. (d)) and had personally
used a firearm when committing the child abuse (§ 12022.5, subd.
(a)). The jury also found true special allegations that Daniels had
suffered two prior violent or serious felony convictions within the
meaning of the “Three Strikes” law (§§ 667, subds. (b)–(j),
1170.12) and two prior serious felony convictions under section
667, subdivision (a), and had served four separate prison terms
for felonies (§ 667.5, subd. (b)). Daniels was sentenced to an
aggregate state prison term of 122 years to life. This appeal
followed.

2 All further statutory references are to the Penal Code.

3Daniels stipulated to having a prior felony conviction for
purposes of the charge of possession of a firearm by a felon.

4
 DISCUSSION
1. Denial of Advisory Counsel
A. Additional Facts
In his written motion, Daniels’s stated grounds for
appointment of advisory counsel were: (1) “the law library in the
facility in which the defendant is being held has limited
resources”; (2) the “defendant does not have access to the
witnesses and the evidence in this case”; and (3) the assistance of
advisory counsel “will aid the defendant in preparing his case for
trial.”
Before ruling on Daniels’s request, the trial court and
Daniels engaged in the following discussion:

“The Court: You’re asking for advisory counsel?
“[Daniels]: Yes.
“The Court: Thank you. [¶] Your request is denied. You don’t
get advisory counsel. [Kieran Brown is] just what we call back-
up counsel. So that’s the deal. Let me just be clear. You can ask
for your pro per status to be revoked—or you can give it up, and I
give you an attorney.
“[Daniels]: I understand that.
“The Court: But you don’t get both.
“[Daniels]: Well, the state’s Constitution says otherwise.
“The Court: I disagree. I’m denying it.
“[Daniels]: Okay.
“The Court: I disagree that that’s what the Constitution says.
“[Daniels]: But it’s in there.
“The Court: But my feeling is you’re interpreting it wrong. We
don’t do that, and you’re not ‘entitled’ under the Constitution to
advisory counsel. You’re not even entitled to back-up counsel.

5
Yet, we do that more as a convenience for the court, that if in the
middle of trial, and you feel that you get in over your head, then I
will revoke your pro per status and let a completely unprepared
attorney continue your case.
“[Daniels]: Well, that’s not—
“The Court: That’s how it works.
“[Daniels]: That’s—
“The Court: Or you can stop being pro per and get an attorney,
which I will appoint the public defender’s office to continue to
help you again. [¶] Is that what you want?
“[Daniels]: No, ma’am.
“The Court: Okay. Then your request is denied.
“[Daniels]: Once again, the state’s Constitution has awarded me
that because of limited access to certain law material.
“The Court: I disagree with that interpretation. Okay. . . . [T]he
court is denying this motion.”

Jury trial commenced about a month later. Daniels
represented himself through most of the trial, and standby
counsel was present during the proceedings.
B. Relevant Legal Principles
Criminal defendants have a constitutional right to
represent themselves at trial. (Faretta, supra, 422 U.S. at
pp. 817–818.) But criminal defendants do not have a
constitutional right to advisory counsel. (People v. Mattson
(1959) 51 Cal.2d 777, 795, overruled on another ground in People
v. Taylor (2009) 47 Cal.4th 850, 871; People v. Moore (2011) 51
Cal.4th 1104, 1119–1120 (Moore); accord, McKaskle v. Wiggins
(1984) 465 U.S. 168,183 [104 S.Ct. 944, 79 L.Ed.2d 122]
(McKaskle).)

6
 Daniels argues the California Supreme Court, particularly
in Moore, improperly relied on dicta in McKaskle, which does not
support that conclusion. We are, however, compelled to follow
our Supreme Court’s repeated holdings that the Sixth
Amendment does not give a criminal defendant a right to
advisory counsel or any other hybrid form of representation. (See
Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450,
455–456 [intermediate court bound to follow binding precedent of
higher reviewing court and refusal to do so is in excess of
intermediate court’s jurisdiction]; People v. Smith (2003) 110
Cal.App.4th 1072, 1091 [same].)
A trial court may exercise its discretion to appoint advisory
counsel. (People v. Crandell (1988) 46 Cal.3d 833, 861 (Crandell),
abrogated on another ground by People v. Crayton (2002) 28
Cal.4th 346, 364–365; accord, People v. Miracle (2018) 6 Cal.5th
318, 338.) Various factors that the court may consider include
the defendant’s education, familiarity with the criminal justice
system, and demonstrated legal abilities; the defendant’s reasons
for seeking advisory counsel, including evidence of a
manipulative purpose; the seriousness of the charges; and the
complexity of the issues. (People v. Debouver (2016) 1
Cal.App.5th 972, 976.) We review the decision for abuse of
discretion and will only set it aside if it is “arbitrary, capricious,
or whimsical.” (Ibid.)
A trial court’s failure to exercise discretion, however, is
necessarily an abuse of discretion. (People v. Bigelow (1984) 37
Cal.3d 731, 743; see Crandell, supra, 46 Cal.3d at p. 861.) We
review such error under People v. Watson (1956) 46 Cal.2d 818,
836 (Watson), to determine whether the denial of advisory
counsel under the particular circumstances would have been an

7
abuse of discretion. If not, no constitutional right is implicated.
(Watson, at pp. 864–865.)
C. Trial Court’s Denial of Daniels’s Request To
Appoint Advisory Counsel Was Not Prejudicial
Daniels argues the trial court failed to exercise its
discretion in refusing to appoint advisory counsel. We agree.
Daniels’s motion was summarily denied; there is no evidence the
court evaluated any relevant factors to determine whether the
appointment of advisory counsel was justified. (See Crandell,
supra, 46 Cal.3d at p. 862.) The court correctly stated Daniels
was not entitled to advisory counsel, but it apparently did not
understand that appointment of advisory counsel was a
discretionary choice. The court mistakenly believed a defendant
must either proceed in pro se or be represented by counsel.
Nonetheless, the record shows it would not have been an
abuse of discretion had the trial court exercised its discretion in
denying Daniels’s request for advisory counsel. (People v. Clark
(1992) 3 Cal.4th 41, 111–112.) Daniels was 34 years old and a
high school graduate. He also had extensive experience with the
legal system, having multiple prior convictions and time spent on
parole.
In representing himself, Daniels consistently “proved to be
an aggressive, thorough, and skillful advocate.” (Crandell, supra,
46 Cal.3d at p. 865.) Before seeking advisory counsel, Daniels
made a variety of pretrial motions, which he capably drafted and
argued, including two Pitchess motions (Pitchess v. Superior
Court (1974) 11 Cal.3d 531), a motion to set aside the
information, and a motion to exclude evidence of his prior
convictions. Daniels also secured the assistance of two
investigators, the second one after the first one was relieved for

8
health reasons; formal and informal discovery from the
prosecutor; three transcripts of pretrial proceedings; the filing of
several subpoenas; a two-week continuance of the trial; two
different expert witnesses, although only one of them testified;
and ex parte communications with the court. Daniels also filed
motions alleging vindictive prosecution and judicial bias.
At trial, Daniels participated in voir dire and the
conference on jury instructions, made an opening statement,
vigorously cross-examined prosecution witnesses, and persuaded
the trial court to have witnesses testify at an evidentiary hearing.
Daniels also introduced trial exhibits, an expert witness, and his
own testimony to support his defense. Until his pro se status was
revoked, Daniels presented a closing argument. Moreover, this
case did not involve highly complex legal issues, but instead
turned on witness credibility as acknowledged and addressed by
Daniels’s self-prepared defense. (See People v. Clark, supra, 3
Cal.4th at p. 111.) It is not reasonably probable that had
advisory counsel been appointed, Daniels would have obtained a
more favorable result. (Watson, supra, 46 Cal.2d at p. 826.)
2. Revocation of Pro Se Status
A. Additional Facts
Daniels’s pro se status was revoked following three
separate outbursts in front of the jury. The first outburst
occurred on July 5, 2019. Outside the presence of the jury,
Daniels had been told by the trial court that his “Sixth
Amendment issues” would be addressed after the coroner’s
testimony. When the jury entered the courtroom, Daniels
announced he wanted to return to the holding cell, his issues
needed to be raised in front of the jury, and the court was
violating his constitutional rights by not addressing them.

9
 The trial court had the jury leave the courtroom and gave
Daniels the option of expressing his issues “now.” Daniels
became upset when told to speak more slowly for the court
reporter, and he again insisted on returning to the holding cell.
The court admonished that if he left, his pro se status would be
revoked. Daniels continued to complain about the court’s
obligation to consider his issues immediately and insisted the
court was “trying to upset” him. Daniels claimed to be suffering
from PTSD, and the court agreed to allow him to briefly leave the
courtroom. When Daniels returned, the court confirmed he was
still representing himself but was “on notice.”
The second outburst occurred on July 8, 2019. Outside the
presence of the jury, the trial court repeatedly informed Daniels
that he had to decide whether he wanted to testify. Daniels did
not answer and complained the court was violating his
constitutional rights and committing misconduct by not allowing
a police interview of Shawntee’s six-year-old son to be admitted
into evidence.4 The court told Daniels the jury was entering the
courtroom and if he refused to stop talking, his pro se status
would be revoked.
After the jury entered the courtroom, the prosecution
rested. The trial court asked Daniels whether he wished to
testify. Daniels said, “Yes, I do,” but insisted that he needed to
call additional unnamed witnesses. The court twice inquired
whether Daniels wanted to testify, “ ‘yes’ or ‘no.’ ” Daniels
answered the court was violating his Sixth Amendment rights.
The court revoked Daniels’s pro se status, called upon standby

4
Neither the son nor the interviewing officer had been
subpoenaed.

10
counsel, and had the jury leave the courtroom. At that point,
Daniels said he wanted to testify because he was “tired of these
games.” The court permitted him to continue representing
himself. Daniels proceeded to testify.
During closing argument the same day, Daniels repeatedly
told the jury that his defense was hampered by his inability to
play a recording of the police interview of Shawntee’s six-year-old
son. The court sustained the prosecutor’s objection for improper
argument. The following exchange occurred:

“[Daniels]: Improper argument? Come on, man.
“The Court: It is.
“[Daniels]: How is it improper? No one heard [the son] say he—
nothing happened to him—but you guys. So how can I express
that fact that nothing happened to him, and he simply said it.
“The Court: Sir, I’m done.
“[Daniels]: No, I’m not done.
“The Court: Well then, I’m going to just stop you and have the
final argument—
“[Daniels]: How can you do that? That would be—see, you’ve
done this over and over.
“The Court: All right. Thank you. You’re done. [¶] Any final
rebuttal or submit?
“[Daniels]: You see this shit? No. Do you see this shit? I can’t
even express my story. I can’t—No. This is the rest of my life
right here. Do you understand that?
“The Court: Final rebuttal?
“[Prosecutor]: Yes, Your Honor. It will be very brief.
“[Daniels]: This is the rest of my life here. And—
“The Court: Sir—

11
“[Daniels]: I’m not able to—I’m not able to say my peace [sic].
You’ve been doing this ever since I’ve been in your courtroom.
“The Court: All right. Three is a charm. You’re out. [¶] Mr.
Brown, come on in.
“[Daniels]: At this time, I really don’t give a fuck. You’re
disrespectful, and you’ve been doing this to me this whole time.
You’ve been doing this this whole time, [Judge] Meyers [sic], and
you upset because I disqualified you for calling me a liar.
“The Court: Mr. Brown, would you like to finish the closing
argument?
“[Daniels]: That’s what you’re going through right now. Get me
out of this courtroom dude.
“The Court: If you can’t be quite [sic], I’m going to have you
removed from the courtroom.
“[Daniels]: Man, I’m going to get out of the courtroom because
you—you—you simply—I’m—I’m sorry, ladies and gentlemen.
“The Court: Thank you sir. [¶] You’re out. If you don’t want to
stay for your closing argument—
“[Daniels]: Man, look you don’t to have [sic] say nothing else to
me.
“The Court: Thank you, sir.
“[Daniels]: This is bullshit. This is bullshit. Hey look man. I
feel sorry for your soul when God comes for you. I do. [¶] And
for the record, I don’t give up my pro per status. Mr. Kieren [sic],
you can say—
“The Court: The court has now revoked your pro per status for
the third outburst.
“[Daniels]: Well, like I said—
“The Court: Take him out, please.

12
“[Daniels]: You can’t revoke it without a hearing. You can’t
revoke it without a hearing.
“The Court: I just did.”

Standby counsel Kieran Brown completed the defense
argument to the jury, followed by the prosecutor’s closing
argument. The court gave final instructions, and the jury began
deliberating.
B. Relevant Legal Principles
A trial court may terminate a defendant’s right of self-
representation “for misconduct that seriously threatens the core
integrity of the trial.” (People v. Carson (2005) 35 Cal.4th 1, 6
(Carson); Faretta, supra, 422 U.S. at p. 834, fn. 46; People v.
Kirvin (2014) 231 Cal.App.4th 1507, 1515.) A ruling revoking a
defendant’s pro se status is reviewed for abuse of discretion, and
will not be disturbed absent a strong showing of clear abuse.
(Carson, at p. 12; People v. Doss (2014) 230 Cal.App.4th 46, 54.)
We “accord due deference to the trial court’s assessment of the
defendant’s motives and sincerity as well as the nature and
context of his misconduct and its impact on the integrity of the
trial in determining whether termination of Faretta rights is
necessary to maintain the fairness of the proceedings.” (Carson,
at p. 12; Doss, at p. 54.)
In Carson, the Supreme Court explained: “Whenever
‘deliberate dilatory or obstructive behavior’ threatens to subvert
‘the core concept of a trial’ [citation] or to compromise the court’s
ability to conduct a fair trial [citation], the defendant’s Faretta
rights are subject to forfeiture. Each case must be evaluated in
its own context, on its own facts.” (Carson, supra, 35 Cal.4th at
p. 10.) Carson enumerated several factors relevant to this

13
analysis. In addition to the nature of the misconduct and its
impact on the trial proceedings, other considerations include
(1) whether the defendant was warned that particular
misconduct would result in termination of pro se status;
(2) whether the defendant has intentionally sought to disrupt and
delay his trial; (3) the actual effect of the misconduct; and (4) the
availability and suitability of alternative sanctions. (Ibid.)
Daniels tries to characterize his behavior as mere
“overzealous advocacy” as opposed to intentionally disruptive. He
also argues his purported misconduct was not egregious enough
to be obstructionist, especially since it occurred near the end of
the trial. This argument may have been stronger had Daniels’s
misconduct been limited to a few isolated instances. But
throughout the trial, Daniels continuously ignored the rules of
evidence and rejected the trial court’s orders not to mention
certain evidence or relitigate discovery issues.
Daniels was also on notice of the consequences of his
disruptive behavior. Before and during trial, Daniels was
repeatedly warned that if he insisted on leaving the courtroom,
refused to abide by court rulings or to comply with court protocol
his pro se status would be revoked. Nonetheless, Daniels’s
persistent response was his constitutional rights were being
violated. (The court is “fucking violating my rights.”) Daniels
also repeatedly accused the court of judicial bias. (“You’re
purposely doing what you’re doing to upset me. It’s been that
way ever since . . . we started this.”)
Moreover, as the trial court expressly found, Daniels’s
misconduct was intended to be disruptive. (“What you’re doing is
trying to get a mistrial or set up something for an appeal, and I
understand that.” “So it appears to me that you’re trying to ask

14
him questions trying to set up an appeal in regards to issues that
have occurred between you and me and discovery on this case.”)
Indeed, the increasing frequency and intensity of Daniels’s
defiant behavior as the trial progressed suggested “a deliberate
course of conduct designed to cause as much disruption as
possible,” particularly in front of the jury. (People v. Clark,
supra, 3 Cal.4th at p. 116.)
Daniels also maintains the trial court failed to consider
alternatives to termination of his propria persona status.
However, we agree there was no satisfactory sanction short of
revocation, given Daniels’s persistent disregard of the court’s
orders. Contrary to Daniels’s argument, a brief recess followed
by another warning was not a satisfactory alternative. That
option had already proved ineffective, and the court reasonably
believed Daniels would continue to disrupt closing argument.
Daniels claims the court could have terminated his propria
persona privileges, rather than his pro se status.5 However, the
obstructionist misconduct took place at the trial itself, making
such an alternative sanction less feasible.
The trial court was exceedingly patient with Daniels and
bent over backward to accommodate his wishes and to ensure his
rights as a pro se defendant. However, Daniels’s repeated, willful
failure to abide by the court’s evidentiary and discovery rulings

5 Propria persona privileges are afforded self-represented
defendants who are incarcerated. Standard propria persona
privileges include the use of the law library and telephones for a
specified number of hours, the opportunity to interview witnesses
for extended periods, and the use of and conferences with legal
runners and investigators. (See Wilson v. Superior Court of Los
Angeles County (1978) 21 Cal.3d 816, 822.)

15
undercut the court’s control of the proceedings, and thereby
threatened the core integrity of trial. (See § 1044.) The court did
not abuse its discretion in revoking Daniels’s pro se status.
3. Alleged Instructional Errors
Daniels argues the trial court erred by failing to sua sponte
instruct the jury on (1) voluntary manslaughter on an imperfect
self-defense theory, (2) involuntary manslaughter on a criminal
negligence theory, (3) accidental discharge of a weapon, and
(4) misdemeanor child abuse. He also contends the trial court
improperly instructed the jury on perfect self-defense using
CALCRIM No. 505. Daniels argues the purported errors violated
his rights to due process and a fair trial, and require reversal.
We disagree.
A. Additional Facts
The trial court instructed the jury on second degree
murder, felony child abuse, possession of a firearm by a felon,
and the two firearm-use enhancements. Without objection, the
court also instructed the jury sua sponte on perfect self-defense
pursuant to CALCRIM No. 505. Daniels did not request the
lesser included offenses and accidental discharge instructions he
now contends should have been given sua sponte.
B. Relevant Legal Principles
A trial court must instruct the jury on all general principles
of law relevant to the issues raised by the evidence, including
lesser included offenses, and defenses on which the defendant
relies and that are not inconsistent with his theory of the case,
whether or not the defendant makes a formal request. (People v.
Moye (2009) 47 Cal.4th 537, 548.) Instruction on a lesser
included offense is required when there is evidence the defendant
is guilty of the lesser offense, but not the greater. (People v.

16
Whalen (2013) 56 Cal.4th 1, 68.) Substantial evidence is evidence
that a reasonable jury could find persuasive. (People v.
Benavides (2005) 35 Cal.4th 69, 102.) The existence of any
evidence, no matter how weak, will not justify instructions on a
defense or a lesser included offense. (Whalen, at p. 68.) In
deciding whether there is substantial evidence we do not evaluate
the credibility of the witnesses, a task for the jury. (People v.
Wyatt (2012) 55 Cal.4th 694, 698.)
We independently review the question of whether the trial
court erred by failing to instruct on a lesser included offense or a
defense. (People v. Trujeque (2015) 61 Cal.4th 227, 271.)
C. Substantial Evidence Did Not Support
Imperfect Self-defense Instruction
“The doctrine of self-defense embraces two types: perfect
and imperfect.” (People v. Rodarte (2014) 223 Cal.App.4th 1158,
1168.) “Perfect” self-defense, which exonerates a defendant
completely, requires that he had an honest and reasonable belief
that the use of force was necessary to defend against an
imminent threat of bodily injury against himself or another, and
that he used no more force than was necessary to defend against
that threat. (§ 197, subd. (1); Rodarte, at p. 1168.) Imperfect
self-defense “is the killing of another human being under the
actual but unreasonable belief that the killer was in imminent
danger of death or great bodily injury.” (People v. Booker (2011)
51 Cal.4th 141, 182.) Imperfect self-defense is not a complete
defense to a killing, but negates malice and reduces the offense to
voluntary manslaughter. (Ibid.)
Although the trial court instructed the jury sua sponte on
perfect self-defense, it was inapplicable. There was no
substantial evidence from which the jury could have found

17
Daniels acted in self-defense, and the instruction ran counter to
his defense at trial. Daniels was the only defense witness to the
shooting. Daniels testified he “kind of got upset” when he went
outside and demanded that Hayes leave. Hayes did not respond.
The two men stood face to face about three feet apart. Hayes’s
arms were down by his sides. Daniels then heard a “click,”
looked down, and saw Hayes begin to raise his left arm. Daniels
immediately grabbed Hayes’s left wrist and felt a gun in Hayes’s
fist. As Hayes continued to raise his arm, Daniels grabbed both
of Hayes’s wrists and elbowed Hayes in the head. Daniels then
“pull[ed],” Hayes “shoved,” and the gun fired and fell to the
ground. Daniels testified, “Like I didn’t do nothing”; and when
“the gun goes—pow[,] I’m not in control of the gun. [Hayes] is.”
Daniels denied killing Hayes. His testimony was that Hayes was
alive—grasping his arm or shoulder and entering the home after
the shooting.
Daniels did not testify that he intentionally shot Hayes,
killing him, because he believed deadly force was required to
defend himself. He did not admit to having shot Hayes at all.
Instead, Daniels testified, in effect, that the gun accidentally
discharged when he and Hayes were struggling over it. He also
suggested that it was Hayes who unintentionally caused the gun
to fire. Crediting Daniels’s account, the shooting was purely
accidental on his part. In general, an accidental shooting is
inconsistent with an assertion of self-defense. (See, e.g., People v.
Villanueva (2008) 169 Cal.App.4th 41, 50; People v. Curtis (1994)
30 Cal.App.4th 1337, 1357 [“self-defense imports an intentional
shooting; it does not apply to an accidental one”].) Thus, absent
evidence Daniels intentionally fired the gun at Hayes because he

18
was in actual fear for his life, a perfect self-defense instruction
was not warranted.
Daniels contends the trial court erred by failing to instruct
the jury sua sponte on voluntary manslaughter on an imperfect
self-defense theory for two reasons. First, Daniels cites those
opinions which hold whenever a jury is instructed on perfect self-
defense, the trial court must also give an imperfect self-defense
instruction. (Relying on People v. Ceja (1994) 26 Cal.App.4th 78,
88–89 (conc. opn. of Johnson, J.), disapproved on other grounds in
People v. Blakeley (2000) 23 Cal.4th 82, 92; People v. DeLeon
(1992) 10 Cal.App.4th 815, 825 (conc. opn. of Johnson, J.); but see
People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1273
[distinguishing the cases and rejecting this premise], cited with
approval in People v. Szadziewicz (2008) 161 Cal.App.4th 823,
834, overruled on another ground in People v. Dalton (2019) 7
Cal.5th 166, 214, and People v. Valenzuela (2011) 199
Cal.App.4th 1214, 1231.) We reject this reason out of hand,
having concluded insufficient evidence supported the perfect self-
defense instruction.
For his second reason, Daniels offers a third version of the
shooting. Daniels argues the jury might have rejected his
testimony and concluded instead he intentionally shot Hayes in
the actual, but unreasonable belief that Hayes was about to shoot
him. What Daniels asserts, in essence, is the trial court, in
deciding what instructions to give the jury, was required to
conflate two conflicting versions of events, neither of which alone
supported voluntary manslaughter on an imperfect self-defense
theory, and to divine a hypothetical “third” version that could
support it. While it may be true, as an abstract principle, that a
jury may believe parts of a witness’s testimony and reject others

19
(People v. Wader (1993) 5 Cal.4th 610, 641), for an instruction on
a defense theory to be required, there must still be substantial
evidence in the entire record to support it. (People v. Elize (1999)
71 Cal.App.4th 605, 615.) Speculation is insufficient to require
an instruction on a lesser included offense. (People v. Simon
(2016) 1 Cal.5th 98, 132; People v. Yarbrough (1974) 37
Cal.App.3d 454, 457 [no involuntary manslaughter instruction
based on hypotheticals].)
D. Lack of Involuntary Manslaughter and
Accidental Discharge Instructions Was Not
Prejudicial
(1) Involuntary Manslaughter
Daniels contends the trial court should have instructed the
jury sua sponte on the lesser included offense of involuntary
manslaughter on a criminal negligence theory. Manslaughter is
“the unlawful killing of a human being without malice.” (§ 192.)
Involuntary manslaughter, excluding vehicular manslaughter, is
“the commission of an unlawful act, not amounting to a felony; or
in the commission of a lawful act which might produce death, in
an unlawful manner, or without due caution and
circumspection.” (§ 192, subd. (b).) “ ‘The words “without due
caution and circumspection” refer to criminal negligence—
unintentional conduct which is gross or reckless, amounting to a
disregard of human life or an indifference to the consequences.’ ”
(People v. Guillen (2014) 227 Cal.App.4th 934, 1027.)
Daniels argues the jury reasonably could have found the
gun was fired accidentally due to his criminal negligence in
handling the gun. Specifically, Daniels contends “grab[bing]
Hayes’s arms and struggl[ing] for control of the weapon”

20
 “rendered the homicide unintentional and reduced the offense to
involuntary manslaughter.”
Even if we assume the evidence was sufficient to require an
instruction on involuntary manslaughter, any error in failing to
give that instruction was harmless. Failure to instruct on a
lesser included offense in a noncapital case is reviewed for error
under Watson, supra, 46 Cal.2d at page 836. (People v. Beltran
(2013) 56 Cal.4th 935, 955.) “[T]he error is harmless unless there
is a reasonable probability of a different result absent the error.”
(People v. Gonzalez (2018) 5 Cal.5th 186, 200, fn. 4.) “ ‘Such
posttrial review focuses not on what a reasonable jury could do,
but what such a jury is likely to have done in the absence of the
error under consideration. In making that evaluation, an
appellate court may consider, among other things, whether the
evidence supporting the existing judgment is so relatively strong,
and the evidence supporting a different outcome is so
comparatively weak, that there is no reasonable probability the
error of which the defendant complains affected the result.’ ”
(People v. Thomas (2012) 53 Cal.4th 771, 814.)
The evidence in the case before us was compelling. In
convicting Daniels of second degree murder, the jury reasonably
rejected his attempt to portray Hayes as the aggressor in the
shooting. The testimony of Shawntee, her mother Lorraine
Jackson, her 12-year-old daughter, who were not impeached,
established Daniels, who was angered by Hayes’s visit, accosted
Hayes, shot and killed him, and fled. According to the
uncontroverted testimony of a police officer, Daniels was later
arrested in Las Vegas. These circumstances demonstrate the
shooting was not accidental.

21
 Daniels’s own testimony was riddled with assertions that
strained credulity. He claimed Hayes grabbed his arm or
shoulder after being shot and then entered the home. He claimed
to have overheard Jackson and Hayes saying “for his ass” in
reference to Daniels before the shooting occurred. He claimed to
have picked up the gun by the barrel after the shooting, and told
Shawntee he had hidden it in the garage so police could find
Hayes’s DNA on it.6 He claimed to have purchased “tickets” in
advance of the shooting to travel with Shawntee to Las Vegas as
part of a job transfer. He claimed Shawntee told him that she
had been arrested.
Furthermore, “[e]rror in failing to instruct the jury on a
lesser included offense is harmless when the jury necessarily
decides the factual questions posed by the omitted instructions
adversely to defendant under other properly given instructions.”
(People v. Koontz (2002) 27 Cal.4th 1041, 1085–1086; see People
v. Jones (1991) 234 Cal.App.3d 1303, 1315–1316, disapproved on
another ground in People v. Anderson (2011) 51 Cal.4th 989, 998,
fn. 3.) Here, the jury was properly instructed on the prosecution’s
burden of proof beyond a reasonable doubt, the elements of the
offenses with which Daniels was charged, and the findings that
were required to find the firearm enhancements. The jury had an
opportunity to determine Daniels’s killing of Hayes was justified
in self-defense, but declined to do so. By convicting Daniels
instead of second degree murder, the jury necessarily found he

6 The gun was never recovered. Shawntee testified on
rebuttal that she did not recall having a phone conversation with
Daniels while he was in custody about finding anything in the
garage.

22
acted with malice. (People v. Chun (2009) 45 Cal.4th 1172, 1181
[Second degree murder is an unlawful killing with malice, but
without the elements of premeditation and deliberation which
elevate the killing to first degree murder. Malice may be express
(intent to kill) or implied (intentional commission of life-
threatening act with conscious disregard for life)].)
Additionally, by finding Daniels intentionally, not
accidentally, discharged his gun causing death within the
meaning of section 12022.53, subdivision (d), the jury necessarily
rejected a prerequisite for finding defendant guilty of involuntary
manslaughter. (§ 12022.53, subd. (d) [applies to “any person who,
in the commission of a felony . . . personally and intentionally
discharges a firearm and proximately causes great bodily injury
. . . , or death, to any person other than an accomplice”].)
Under Chapman v. California (1967) 386 U.S. 18, 24 [87
S.Ct. 824, 17 L.Ed.2d 705], we evaluate whether, if the jury was
properly instructed, it is beyond a reasonable doubt that the
verdict would have been the same. Even if Chapman were
applicable in this case, we would find the error harmless beyond
a reasonable doubt for the reasons stated.
(2) Accidental Discharge
Daniels argues the trial court erred by failing to instruct
the jury on accidental discharge of a firearm while acting in self-
defense. Daniels concedes the California Supreme Court has held
that it is a pinpoint instruction, which a trial court has no duty to
give sua sponte. (People v. Anderson, supra, 51 Cal.4th at p. 996;
People v. Jennings (2010) 50 Cal.4th 616, 674.) Daniels
acknowledges we are bound by these precedents (Auto Equity
Sales, Inc. v. Superior Court, supra, 57 Cal.2d at p. 55), but

23
invites us to disagree with them to preserve the issue for future
review. We decline to do so.
E. CALCRIM No. 505
Daniels contends the jury was improperly instructed on
perfect self-defense in violation of his rights to due process and
jury trial. Daniels asserts CALCRIM No. 505 is flawed because it
erroneously allowed the jury to find Daniels shot Hayes in self-
defense only if Daniels “belie[ved] there was imminent danger of
death or great bodily injury [to himself].”7
In People v. Nguyen (2015) 61 Cal.4th 1015, the California
Supreme Court recognized a defendant who engages in a lethal
response to imminent deadly force cannot claim self-defense if “he
did not act on the basis of fear alone but also on a desire to kill.”
(Id. at p. 1044.) Nguyen cited with approval the Fifth District’s

7 CALCRIM No. 505 provides in pertinent part: “The
defendant is not guilty of murder if he was justified in killing
someone in self-defense. The defendant acted in lawful self-
defense if: [¶] 1. The defendant reasonably believed that he was
in imminent danger of being killed or suffering great bodily
injury;” [¶] 2. The defendant reasonably believed that the
immediate use of deadly force was necessary to defend against
that danger; [¶] AND [¶] 3. The defendant used no more force
than was reasonably necessary to defend against that danger. [¶]
Belief in future harm is not sufficient, no matter how great or
how likely the harm is believed to be. The defendant must have
believed there was imminent danger of death or great bodily
injury to himself. Defendant’s belief must have been reasonable
and he must have acted only because of that belief. The
defendant is only entitled to use that amount of force that a
reasonable person would believe is necessary in the same
situation. If the defendant used more force than was reasonable,
the killing was not justified.”

24
holding in People v. Trevino (1988) 200 Cal.App.3d 874 (Trevino)
that former CALJIC No. 5.12 (the predecessor instruction to
CALCRIM No. 505) correctly stated the law of perfect self-
defense by requiring the party who killed must have had an
honest and reasonable belief in the need for self-defense or the
defense of another, and, in killing, must have “ ‘acted under the
influence of such fears alone.’ ” (Nguyen, at p. 1045, italics added,
quoting Trevino, at p. 879; §§ 197, 198.) Trevino further
suggested, if at the time the defendant also harbored emotions
other than (and in addition to) fear toward the victim which did
not cause the defendant to commit the crime, the defendant could
request additional, clarifying instructions regarding the presence
of those other, mixed motives. (Trevino, at p. 880.)
Daniels argues Trevino was wrongly decided and
CALCRIM No. 505 is not an accurate statement of the law as
reflected in sections 197 (justifiable homicide), 198 (requiring
reasonable fear), the common law, and the California and federal
Constitutions. He maintains the jury should have been
instructed that “a homicide based on mixed motives is justifiable
so long as reasonable fear was a substantial cause of the decision
to kill.” And, “given the evidence of multiple potential
motivations for Daniels’s actions toward Hayes, there is a strong
likelihood at least some jurors rejected self-defense on the
grounds a small portion of the emotion that animated Daniels
was anger or jealously toward Hayes.”
We reject Daniels’s argument for several reasons. First,
Daniels forfeited his challenge to CALCRIM No. 505. “ ‘[A] party
may not complain on appeal that an instruction correct in law
and responsive to the evidence was too general or incomplete
unless the party has requested appropriate clarifying or

25
amplifying language.’ ” (People v. Jones (2013) 57 Cal.4th 899,
969.) Second, as discussed, on this record Daniels was not
entitled to a perfect self-defense instruction, so it amounted to a
windfall. (See People v. Szadziewicz, supra, 161 Cal.App.4th at
p. 834.) Third, if CALCRIM No. 505 did apply here, we would
disagree with Daniels and would follow Trevino. In our view,
CALCRIM No. 505 correctly states the law of self-defense under
sections 197 and 198 and does not give preclusive effect to “mixed
motives.” As the Trevino court aptly acknowledged: “[A] person
who feels anger or even hatred toward the person killed, may . . .
justifiably use deadly force in self-defense. . . . [¶] In [some]
situations . . . it would be unreasonable to require an absence of
any feeling other than fear, before the homicide could be
considered justifiable. Such a requirement is not a part of the
law . . . . Instead, the law requires that the party killing act out
of fear alone.” (Trevino, supra, 200 Cal.App.3d at p. 879, italics
omitted.) However, as the form instruction does not “eliminate a
feeling of anger or any other emotion so long as that emotion was
not part of the cause of the use of deadly force,” it correctly stated
the law of perfect self-defense. (Id. at p. 880.)
Like former CALJIC No.5.12 contested in Trevino,
CALCRIM No. 505, as instructed here, did not remove the
possibility that Daniels harbored other negative feelings about
Hayes. Nor did the form instruction advise the jury it had to
reject self-defense if Daniels felt some hostility or jealousy apart
from fear. Instead, in keeping with section 198, CALCRIM No.
505 requires that Daniels’s fear for his life is the sole “but for”
cause of the murder, and is an accurate and complete statement
of the law.

26
 F. Substantial Evidence Did Not Support
Misdemeanor Child Abuse Instruction
The trial court instructed the jury on felony child abuse.
Daniels did not request an instruction on misdemeanor child
abuse and now contends the court had a duty sua sponte to give
the instruction on the lesser included offense.
“Section 273a defines both felony and misdemeanor child
abuse. The criminal acts proscribed by section 273a are:
(1) willfully causing or permitting any child to suffer, or
(2) inflicting thereon unjustifiable physical pain or mental
suffering, or (3) having the care or custody of any child, willfully
causing or permitting the person or health of such child to be
injured, or (4) willfully causing or permitting such child to be
placed in such situation that his or her person or health is
endangered.” (People v. Moussabeck (2007) 157 Cal.App.4th 975,
980 (Moussabeck).)
In Moussabeck the Court of Appeal explained the
difference between felony child abuse and misdemeanor child
abuse: “If the act is done under circumstances or conditions
likely to produce great bodily injury or death, it is a felony
(§ 273a, subd. (a)); if not, the offense is a misdemeanor (§ 273a,
subd. (b)). [Citation.] Misdemeanor child abuse . . . is a lesser
included offense of felony child abuse.” (Moussabeck, supra, 157
Cal.App.4th at p. 980.)
The issue here is whether there is substantial evidence
from which a reasonable jury could find Daniels committed
misdemeanor child abuse but not felony child abuse to
demonstrate instructional error. (People v. Whalen, supra, 56
Cal.4th at p. 68.) If there is no such evidence, the court had no
duty to give the lesser included offense sua sponte. (Ibid.)

27
 Daniels testified Shawntee’s son and daughter were inside
the home at the time of the shooting. If the jury had credited his
testimony, it would have found no child abuse had occurred.
Shawntee’s mother, Lorraine Jackson, testified her six-year-old
grandson (Shawntee’s son) was standing “next to” or “pretty
close” to Hayes, and yelled, “He shot him. He shot him” after
Daniels fired the gun. Shawntee’s 12-year-old daughter testified
when Daniels pointed the gun at Hayes, her brother was “on
[Hayes’s] back,” “kind of just playing around.” Shawntee testified
her son was severely troubled by the shooting, had developed
behavioral issues, and was still in counseling at the time of trial.
We see no evidence, let alone substantial evidence, from
which a jury could reasonably find only misdemeanor child abuse
was committed. Daniels fired a gun killing Hayes, when
Shawntee’s son was on or beside Hayes, seriously endangering
the boy’s life. No lesser included offense instruction was
required.
4. Senate Bill No. 136
Daniels and the People agree that because of the passage of
Senate Bill No. 136, the three one-year consecutive sentencing
enhancements under section 667.5, subdivision (b) must be
stricken.
At the time Daniels was sentenced, the trial court was
required to impose one-year prior prison term enhancements.
(Former § 667.5, subd. (b).) But, in 2019, Senate Bill No. 136
(2019–2020 Reg. Sess.) was passed. It changed this enhancement
so that it would apply only to prior prison terms for certain
sexually violent offenses. (§ 667.5, subd. (b); People v. Lopez
(2019) 42 Cal.App.5th 337, 341.) This change went into effect on

28
January 1, 2020. (People v. Camba (1996) 50 Cal.App.4th 857,
865.)
The change in the law applies retroactively to this case.
When the Legislature eliminates or reduces the punishment for
an offense or a sentence enhancement, that reduction is applied
retroactively to all judgments on appeal that are not yet final.
(In re Estrada (1965) 63 Cal.2d 740, 745–748.) Consequently,
because Daniels’s prior prison terms were not for a sexually
violent offense, the section 667.5, subdivision (b) enhancements
must now be stricken. (People v. Gastelum (2020) 45 Cal.App.5th
757, 772.)
5. Additional Presentence Custody Credits
The sentencing hearing transcript shows the trial court
miscalculated Daniels’s presentence custody credits as 832 days.
Daniels contends, and the People acknowledge, that he was
entitled to 842 days, having spent 842 days in actual custody.
(See People v. Heard (1993) 18 Cal.App.4th 1025, 1027–1028.) A
sentence that fails to award legally mandated custody credit is
unauthorized and may be corrected whenever discovered. (People
v. Taylor (2004) 119 Cal.App.4th 628, 647.) Daniels’s presentence
custody credits award, and the abstract of judgment reflecting
the award, shall be modified to award him 10 additional days, for
a total award of 842 days of presentence custody credits.

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 DISPOSITION
We modify the judgment by striking the three one-year
Penal Code section 667.5, subdivision (b) sentencing
enhancements and adding 10 days of presentence custody credits
for a total of 842 days of presentence custody credits. As modified
the judgment is affirmed. The superior court is directed to
prepare a corrected abstract of judgment and forward it to the
Department of Corrections and Rehabilitation.
NOT TO BE PUBLISHED.

LUI, P. J.
We concur:

ASHMANN-GERST, J.

HOFFSTADT, J.

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