P. v. Phillips

Filed 2/23/07 P. v. Phillips CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. Christian F. Thierbach, Judge. Affirmed with directions.

Corinne S. Shulman, under appointment by the Court of Appeal, for Defendant and Appellant Steven Wayne Phillips.

Jeffrey J. Stuetz, under appointment by the Court of Appeal, for Defendant and Appellant Robert William Cress.

David M. Philips for Defendant and Appellant Jose Morris Salcido.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Teresa Torreblanca and Kristine A. Gutierrez, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted Robert William Cress and Steven Wayne Phillips of first degree murder (Pen. Code, 187, subd. (a)) and found that Phillips discharged a firearm proximately causing death (Pen. Code, 12022.53, subd. (d)). A separate jury convicted Jose Morris Salcido of first degree murder. Cress and Salcido were sentenced to 25 years to life in prison, and Phillips to 25 years to life plus 25 years. The defendants appeal, making various claims which we reject, save one concerning the restitution ordered by the sentencing court. Upon agreement of the parties, we will direct the trial court to modify its order concerning restitution. Otherwise, we affirm all the convictions and sentences.

Facts

Cress and Phillips had been friends for a while. They and Salcido lived and worked together. According to his mother, Cress had a problem with alcohol. Cresss mother had a history of drinking and taking pills. Cresss mother and the victim had dated, but weeks before February 19, 2002, the relationship fell apart. At 6:00 p.m. on February 18, Cresss mother, who was drunk and may have also ingested a number of sleeping pills, went to the home of her sister and brother-in-law (hereafter Cs uncle). She was upset about her health and about the victim, complaining, as to the latter, that he had not returned her phone calls for three weeks. She had a big stick and threatened to go to the victims house and smash his windows. She drank more. Cs uncle called Cresss sister to come and drive Cresss mother home, which was accomplished around 7:00 or 7:30 p.m. Cresss mother was still very upset when she left. She insisted that her daughter drive her immediately to Cresss home, which the daughter did after the mother kicked and broke the windshield of the car the daughter was driving.

The mother was drunk, crying and hysterical when she arrived at Cresss.^[1] Phillips was not there. With Salcido, who claimed he was doing speed,^[2]overhearing, the mother told Cress that she was pregnant and had a sexually transmitted disease, perhaps AIDS, both courtesy of the victim. (Although the mothers doctor was running tests to determine if the mother had a sexually transmitted disease,^[3]the results had not yet come back and as it turned out, the mothers claimed pregnancy was a complete fabrication.) Cress was variously reported as being pretty calm and upset at his mothers news. Cress asked his mother what she wanted him to do. The mother replied, [K]ick [the victims] ass. The mother told police that Cress had told her, Youre all my kids have. Im not going to let some mother fucker give you AIDS.^[4] According to Salcido, the mother may have given Cress the directions to the victims house. After the mother returned to her own home, she changed her mind and told Cresss sister to return to Cresss and tell him not to go to the victims house, which the sister did.

Salcido testified at trial that he felt the victim deserved to get beat up for what he thought the victim had done to Cresss mother; however, he denied that he and Cress or Phillips discussed it on February 19 during the day. According to Salcido, beginning at noon, he and Cress drank most of an 18-pack of 12-ounce cans of beer,^[5]while Phillips had about two of them.^[6] Around 3:00 or 4:00 oclock that afternoon, Salcido reported, Salcidos mother came to the house with shingles she wanted Cress,^[7]Phillips and Salcido to nail onto the roof, which they did for hours before barbecuing and eating dinner. Salcido reported that Cress was upset during dinner. Some time during the afternoon, said Salcido, Cresss mother called him and told him that his grandfather had died. Around 5:00 or 6:00 p.m., according to Salcido, the three defendants shared a fifth of vodka. Salcido reported that Cress was despondent all day; however, Phillips was not upset. According to Salcido, either Cress alone or Cress and Phillips together asked him to give him/them a ride in Salcidos van to beat up the victim.^[8] At some point before their departure,^[9]Cress called his sisters female friend, who was staying with his sister and his mother, and asked her to find out if there were any kids at the victims house or if the victim had any children. Salcido testified that he was aware of this. Cress told the friend not to tell his mother what he had asked her to do. Therefore, the friend walked to her grandmothers house, two blocks away, and called Cresss sister to get the information Cress wanted, but she was unsuccessful.^[10]

The jury who determined Cresss and Phillipss guilt was also presented with testimony that the mother had told police that after Cress spoke to his sisters female friend, he called his mother and asked her the victims name and, tearfully, to take care of his children.^[11]

According to Salcidos pretrial statement to police and portions of his trial testimony,^[12]on the way to the victims house, they said they were going to beat up the victim. Salcido told police that Cress asked Salcido if he was going to help and Salcido said yes. In his pretrial statement to police and at trial, Salcido denied knowing that either Cress or Phillips was armed. In the same statement, Salcido claimed all three were pretty buzzed.

Salcido testified that Cress directed Salcido to the victims home and, after arriving outside it, told him to pull over. It was about 7:00 p.m. Salcido stayed in the van. In his pretrial statement to police^[13]and trial testimony, he claimed he parked down the street from the victims house and could not see what happened. Salcido stated variously that Cress and Phillips alighted from the van together and Cress got out first, then Phillips, after Salcido had driven down the block, doubled back and parked down the street from the victims house. However, Cresss sister testified that following the killing, Salcido told her that after Phillips got out of the van behind Cress, Phillips pulled out a gun as he approached the victims front door. According to Salcidos pretrial statement, he heard glass break, then gunshots.^[14] According to Cresss sister, Salcido told her that while a drunken Cress was 15 to 20 feet away, the victim opened his front door and when he tried to close it, Phillips shot him through the door.^[15] Indeed, the victim was fatally shot through the door with a bullet that entered his left cheek and stopped at the back of his neck. Three bullets had been fired into the door at the eye level of a five-foot ten-inch person. The victim had also sustained a nonfatal bullet wound to his left wrist. There were no signs of a fight on his body and there was no weapon near him. The screen on the locked front screen door had been cut away. The front door was locked. The bathroom window, near the front door, was broken from the outside. Splatters of Cresss blood were on the glass that remained in the window frame. Cresss knife was on the bathroom floor.

According to Salcidos pretrial statement, Cress and Phillips returned to the van running. Cress had a cut finger and said he had hit the glass. Salcido drove to the home of Cresss mothers sister and Cs uncle. On the way, Phillips threw the gun out the window of the van.^[16] Salcido claimed at trial and in his pretrial statement that he stayed in the van while Cress and Phillips got out.

Cs uncle testified that Phillips, who was pretty high on marijuana and alcohol, got out of the van with a gun in his hand and yelled, I just shot a mother fucker six times and dumped him in the desert. The uncle said he examined the gun, which was a five shooter, and it was empty. Cresss sister testified that Phillips told her that he wanted to know what hospital the victim had been taken to, so he could make sure the victim died because the victim had seen his face. Cress, who overheard Phillipss remark, told Phillips to shut up and did not cry or appear to be hysterical. Cresss sister also testified that Cress asked her to wash his clothes, which were bloodstained, but she refused. Cs uncle also testified that Cress, who was pretty drunk and very upset, said he had cut the screen with a knife, pounded on the door and broken a window. He added that he wanted to talk to the victim, but the latter slammed the door in his face.

Cress went to his mothers house in the wee hours of February 20. According to the mother, he was crying and shaking, but she did not know if he was drunk.^[17] At 6:00 a.m., Cresss mother and his uncle arrived and told Cress that the victim was dead. Phillips called Cress, and Cress left five minutes later. Cresss mother and her brother-in-law went to Cresss house to attempt to get him to turn himself in. Cress was hysterical, crying, shaking, vomiting, and talked about killing himself. He kept saying, It wasnt supposed to happen like this. Cresss mother and his uncle asked Cress to turn himself in. Salcido arrived and, with a lead pipe in his hand, told Cresss relatives to get the fuck out of the house and for Cress to leave with him, which Cress did. Before he did, Cresss mother asked Salcido what kind of friend he was. Salcido replied, The same kind of friend anybody would be to me if somebody did my mom that way. At trial, Salcido admitted he told the police that he was really mad at the victim, but he added that this was a lie.

Salcido testified at trial that he spent a half day with Cress and Phillips at Salcidos house and neither said anything to him about the shooting. However, he also testified that they did discuss it. At some point, according to Salcidos pretrial statement and trial testimony, either Cress or Cress and Phillips told Salcido that they capped the dude.^[18] Cress and Phillips left Salcidos mothers house in Phillipss car.

Although Salcido was planning to go to Los Angeles, he was arrested at his mothers house on February 21 before he had a chance to leave. Three days later, Phillipss car was found parked near Magic Mountain. On February 28th, Cress and Phillips were found and arrested near San Jose.

Salcido testified at trial that in his statement to police, he first denied all knowledge of the crime, then admitted that he had driven Cress and Phillips to the victims, but claimed he did not know the reason for the visit, then admitted knowing they were going there to talk to the victim, then admitted knowing they were going to beat up the victim. The numerous conflicts between Salcidos statement to the police and his trial testimony, and even inconsistencies within that testimony, have already been described. For their part, Cress and Phillips did not testify and no pretrial statements by them, other than the ones discussed above, were admitted at trial.

Issues and Discussion

1. Insufficiency of the Evidence

According to the instructions given to the jury, Phillips, the shooter, was guilty of first degree murder under the theory that he committed malice aforethought premeditated and deliberate murder. The theories supporting Cresss and Salcidos guilt were: (1) aiding and abetting a malice aforethought premeditated and deliberate murder; (2) aiding and abetting an aggravated assault, the natural and probable consequences of which were murder; (3) aiding and abetting battery, the natural and probable consequences of which were murder; (4) being a conspirator in a conspiracy to commit murder, the natural and probable consequences of which were murder; (5) being a conspirator in a conspiracy to commit aggravated assault, the natural and probable consequences of which were murder; and (6) being a conspirator in a conspiracy to commit battery, the natural and probable consequences of which were murder. The defendants variously claim insufficiency of the evidence as to some of these theories.

The defendants claim there was insufficient evidence to support Phillipss conviction of malice aforethought premeditated and deliberate first degree murder, therefore the convictions of all three must be reversed, Cresss and Salcidos because they are dependent on Phillipss guilt. We disagree that there was insufficient evidence to support the conviction of Phillips for first degree malice aforethought premeditated and deliberate murder.

Specifically, the defendants assert that Phillips had no motive to kill the victim. They concede that Phillips and Cress were friends, but state, there was no substantial evidence Phillips was the type of person who would kill for [Cress]. In many criminal cases, as here, the defendant does not take the stand, and there may be little evidence introduced that would give the jury a picture of what the defendant is like as a person. However, this does not prevent a jury from arriving at reasonable inferences based on the evidence before it and so it was here. There was little, if any, evidence about Phillipss character or what made him tick. Still, there was information that Cress was very upset about his mother, as was Salcido, and the jury could reasonably infer that, based on their relationship, Phillips was equally distressed.^[19] Certainly, Phillipss comments to Salcido, Cs uncle and Cresss sister after the crimes demonstrated his animosity towards the victim and his delight in accomplishing the killing.^[20]

We further disagree with the defendants that the manner of the shooting, i.e., through the victims front door, demonstrated that it was rash, unconsidered and impulsive, rather than premeditated and deliberate. Cresss sister testified that Salcido told her that Phillips had pulled out the gun as he and Cress had approached the victims front door. She also testified that the victim answered the door, then tried to close it and thats when Phillips fired through it, fatally wounding the victim. This was corroborated by the testimony of Cs uncle that Cress had told him that he pounded on a door and attempted to talk to the victim, who slammed the door in his face.

The defendants assert there was insufficient evidence of planning activity by Phillips. However, as the prosecutor pointed out to Salcido during the latters interview, considering the time^[21]that elapsed between Cresss mother delivering her bad news and the shooting, there was more than sufficient opportunity to plan their attack. Throughout this period, the three defendants were together, drinking, eating, working, and talking. Salcido allowed that they planned, during that time, to beat up the victim. It is apparent that Phillips armed himself with the murder weapon before getting into Salcidos van to be taken to the victims home. He drew the weapon before approaching the victims front door, and shot three times through the door at the victims head or chest level. As the People correctly point out, the fact that Salcido remained in the van while Cress and Phillips went to the front door suggested that their plan was not to beat up the victim (in which case, the presence of a third assailant would have been helpful to their cause), but to shoot him (in which case, Salcidos presence at the door was unnecessary and he was more useful having the getaway vehicle at the ready after the noisy killing).

Next, Cress asserts that there was insufficient evidence of a conspiracy to commit murder. He posits that if he was intoxicated to the extent that he did not form express malice aforethought, i.e., the intent to kill, at the time of the conspiracy (People v. Swain (1996) 12 Cal.4th 593, 607), or if he was acting under heat of passion, he is not guilty of conspiracy to murder. He asserts that there was overwhelming evidence [he] was intoxicated before the shooting [and] . . . there was overwhelming evidence of heat of passion. However, he fails to state what this overwhelming evidence is. While there is evidence that Cress had been drinking between the time his mother gave him her bad news and the shooting, there was no evidence that Cress was so intoxicated that he did not form the intent to kill. During this time, he got up on the roof of his home and worked on it for hours. He ate a meal. He asked his sisters female friend if the victim had children at his home and instructed her not to tell his mother about his inquiry. He told his mother to take care of his children. He was able to think clearly enough to arm himself with a knife before going to the victims house. He directed Salcido to the victims home, in the dark, using directions supplied by his mother, even though he had never before been there. Once there, he cut the screen of the front door and broke out the bathroom window, leaving his knife inside. Considering the period of time that elapsed between the bad news and the shooting, there was absolutely no evidence whatsoever of heat of passion.

Cress also asserts that there is insufficient evidence that he aided and abetted murder, because there was no evidence he knew Phillips had a gun when Phillips got into Salcidos van. However, this was an inference the jury could reasonably derive from the evidence presented. Cresss assertion that [t]he People offered no evidence of [his] aiding or abetting Phillips shooting [the victim] is absurd. It was most probably Cress who told Phillips about his mothers plight (Salcido testified that Phillips was not present when Cresss mother told Cress her bad news and Cress had a far greater motive for telling Phillips than Salcido did), it was Cress who asked Salcido to drive him and Phillips to the victims home, and it was Cress who gave Salcido the directions on how to get there and where to wait for him and Phillips. It was also Cress who pounded on the victims front door and attempted to talk to him, cut the screen with his knife, and broke the bathroom window.

Based on the foregoing argument, Cress asserts there was insufficient evidence that he aided and abetted Phillips in shooting into the victims home, or assaulting the victim, or was part of a conspiracy to commit an aggravated assault on the victim. Based on our rejection of the foregoing argument, we disagree.

2. Exclusion of Evidence

a. Cresss Exculpatory Statements

During Cresss mothers testimony, Cress sought to introduce statements he made to her about eight hours after the shooting, and to his uncle just after the shooting, that he was sorry about the victims death, that he did not mean for the shooting to occur, that he had gone to the victims just to talk to the latter and he did not know a gun was present. He claimed his statements were against penal interest and were excited utterances. The trial court concluded that they were self-serving hearsay, not declarations against interest or excited utterances and they were not trustworthy. The prosecutor pointed out that Cress had plenty of time after the shooting to concoct the exculpatory story he gave his mother.^[22]

Cs uncle, during cross-examination by counsel for Phillips, testified, over Cresss attorneys objection, that Cress had told his uncle that on the night of the crime, he cut a screen with his knife. During the same examination, the uncle testified that the morning after the crime, when he and his wife tried to talk Cress into turning himself in, Cress threatened to commit suicide and he said, repeatedly, It wasnt supposed to happen like this. Counsel for Cress had the uncle further testify that Cress cut a screen with his knife, pounded on a door, broke a window, and attempted to talk to the victim, who slammed the door in his face. Much later, outside the presence of the jury, Phillipss attorney sought permission to introduce the statement Cress had made to his uncle that he was the shooter. Cresss attorney countered that if that statement was admitted, the exculpatory statements Cress made to his uncle should also come in. The trial court ruled that none of Cresss statements would be admitted. Very close to the end of the evidentiary portion of the trial, counsel for Cress renewed her request to have her clients exculpatory statements to his mother and uncle be admitted, adding a new basis for admissibility, i.e., state of mind. The trial court reiterated that the statements were not spontaneous declarations and the state of mind exception required the statements to be trustworthy, which these were not.

Cress here contends that when Phillipss attorney introduced Cresss statement to his uncle that he cut the screen the night of the crime, all of Cresss exculpatory statements were admissible under Evidence Code section 356, and his conviction should be reversed because of the trial courts refusal to admit them. Section 356 provides: Where part of a . . . declaration . . . is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; . . . and when a detached . . . declaration . . . is given in evidence, any other . . . declaration . . . which is necessary to make it understood may also be given in evidence. Unfortunately for Cress, he never advanced this below as a reason for admitting the evidence. Therefore, he may not now claim that the trial court erred on this basis. (Evid. Code, 354; People v. Ramos (1997) 15 Cal.4th 1133, 1178.) We also agree with the People that Cresss exculpatory statements were neither part of his declaration that he cut the screen nor were they necessary to an understanding of that declaration. As the People point out, the purpose of Evidence Code section 356 is to prevent the use of selected aspects of a . . . declaration . . . so as to create a misleading impression on the subjects addressed. (People v. Arias (1996) 13 Cal.4th 92, 156.) According to the undisputed representation of Phillipss attorney, Cress gave his uncle three different versions of his involvement in the crime, only one of which was exculpatory.^[23] The record does not establish that Cresss statement about the screen was part of any of these three declarations, or more to the point, that it was part of the exculpatory one. Additionally, it added nothing to the meaning of the exculpatory declaration. Finally, taking Cresss argument to its logical conclusion, the jury should have also heard the two inculpatory declarations. Surely, Cress cannot have wanted this.

Cress disputes the trial courts finding that the exculpatory statements were not admissible as excited utterances. He posits that if, in fact, the shooting came as a complete surprise to him, it was a stressful event and he was still under its sway when he made the exculpatory statements to his uncle. However, Cress had the burden of producing evidence sufficient to establish the premise that he was taken by surprise when Phillips shot the victim. (See People v. Ramos, supra, 15 Cal.4th at p. 1177.) In light of Cresss conflicting statements on the subject,^[24]he did not carry this burden. We also agree with the People that the statements were not spontaneous utterances in that they did not narrate, describe or explain an act, condition, or event perceived by the declarant. (Evid. Code, 1240.) They merely described Cresss earlier state of mind.

Cress contends the statements were also admissible under Evidence Code section 1241, yet another basis not advanced below, and, therefore, waived. That section provides: Evidence of a statement is not made inadmissible by the hearsay rule if the statement . . . [i]s offered to explain, qualify, or make understandable conduct of the declarant; and . . . [w]as made while the declarant was engaged in such conduct. The uncle had testified that at some unspecified point while Cress was at his home after the murder, Cress asked the uncle for money and cigarettes. During cross-examination by Cresss attorney, the uncle testified that Cress asked him for money and cigarettes because [w]e all beg from each other. . . . He takes care of me, I take care of him. Cress asserts that his statement to his uncle was introduced to support the inference of flight and, in turn, premeditation and deliberation, [because one] need[s] money to flee. (Of course, there was other evidence of flight which was much stronger than this, i.e., the undisputed fact that Cress left Southern California with Phillips the day after the murder and was captured near San Jose.) In any event, Cress claims that his exculpatory statements explain[ed], qualif[ied] and ma[d]e understandable his so-called conduct of flight. This makes no sense whatsoever. Moreover, as the People point out, to be admissible under Evidence Code section 1241, the statements must be made while the declarant was engaged in [the] conduct [in question]. (Id., subd. (b).) Cresss exculpatory statements to his uncle were made the night before he fled.

Cress next contends, For similar reasons [to those advanced in relation to the previous argument], the [exculpatory] statements were admissible [as state of mind evidence] . . . . However, the trial court acted reasonably and therefore did not abuse its discretion (People v. Smith (2003) 30 Cal.4th 581, 629) in concluding that the statements, because they were self-serving and because they were delivered contemporaneously with contradictory statements, lacked sufficient trustworthiness to permit admission. Contrary to Cresss assertion, the trial courts finding was not dependent on its assumption that he was guilty. Cresss contention that trustworthiness was established because the statements placed him at the scene of the crime has no merit. Placing himself at the scene while claiming a complete lack of responsibility for what happened there did not create trustworthiness. We also agree with the People that the exculpatory statements, because they described Cresss past state of mind, i.e., at the time of the murder, did not fall under the provisions of Evidence Code section 1250 for statement[s] of the declarants then existing state of mind. . . . (Evid. Code, 1250, italics added.)

Trotting out yet another basis for admissibility not advanced below, Cress claims that his exculpatory statements were admissions of a party under Evidence Code section 1220. However, section 1220 provides for the admission of statements offered against thedeclarant. It was Cress himself, and not any of the other parties, who sought admission of these statements.

b. Cresss Inculpatory Statement

As stated in connection with the previous issue, Phillipss attorney sought admission of Cresss statement that he shot the victim, and that he went into the victims house and stabbed him in the neck. The trial court concluded the statements lacked sufficient indicia of trustworthiness because (1) they were contradicted by the physical evidence, and (2) Cress made three inconsistent statements about his involvement in the murder.^[25] While, as People v. Cervantes (2004) 118 Cal.App.4th 162 held, some discrepancies in the declarants statements do not render them untrustworthy, here Cress offered three completely conflicting and contradictory versions of the murder. Precisely for the same reasons the trial court found the statements untrustworthy, we are convinced that the jury would have rejected them as evidence exonerating Phillips had they been admitted.

3. Jury Instructions

a. Manslaughter

i. Voluntary

Cress and Phillips^[26]contend that the trial court should have instructed the jury on heat of passion voluntary manslaughter, claiming People v. Berry (1976) 18 Cal.3d 509, 516, holds that a 20-hour cooling period does not, as a matter of law, negate heat of passion. Berry does not so hold. In Berry, the defendant and his psychiatrist both testified at trial that the former killed his wife in a sudden and uncontrollable rage while she was screaming at him and after two weeks of being provoked by her. The California Supreme Court concluded that the victims two-week-long provocatory conduct could arouse a passion of jealousy, pain and sexual rage in an ordinary man of average disposition such as to cause him to act rashly from his passion. (Id. at p. 515.) Although the victims final provocative act occurred 20 hours before the murder, the appellate court concluded, nevertheless, that [her] long course of provocatory conduct, which had resulted in intermittent outbreaks of rage under specific provocation in the past, reached its final culmination . . . when [she] began screaming. Both defendant and [his psychiatrist] testified that defendant killed in a state of uncontrollable rage, of passion, and there is ample evidence in the record to support the conclusion that this passion was the result of the long course of provocatory conduct by [the victim]. . . . (Id. at p. 516.) Here, in contrast, there was no testimony or even an out-of-court statement by Cress or anyone else that he acted in the heat of passion and there was no evidence of a continuing period of provocative conduct by the victim. There must be sufficient evidence of heat of passion to merit consideration by the jury. (People v. Breverman (1998) 19 Cal.4th 142, 162.) Here, there was not. (See People v. Pride (1992) 3 Cal.4th 195, 250.)

Cress concocts a scenario in which he went to the victims home to confront him verbally, then snapped when the victim slammed the door in his face. The only problem with this is that it is a pure concoction, which does not support the giving of manslaughter instructions. (See People v. Pride, supra, 3 Cal.4th at p. 250.) Although neighbors heard a crash and a male voice calling someone a profanity or what one neighbor thought was an argument or yelling between males before the shots were fired, there was no evidence that the victim yelled at or argued with either Phillips or Cress or that his closing the door was anything other than his attempt to protect himself from Phillips, who had a gun, and Cress, who had just tried to break into his home through a window and had cut the screen to his front door with knife. (See People v. Balderas (1985) 41 Cal.3d 144, 197 [predictable resistance by a victim cannot be provocation].)

Equally speculative is Phillipss claim that he might have found out about Cresss mothers problem immediately before departing for the victims home. There is absolutely no evidence to support this.^[27] In addition, how Phillips can claim heat of passion concerning the problems of a woman he did not even know is beyond us, especially in light of Salcidos uncontroverted testimony that Phillips was not upset during the hours leading up to the murder.

Cress argues that he was entitled to voluntary manslaughter instructions under the natural and probable consequences theory. Cress states, [T]he jury could have reasonably concluded [that Cress], still in the heat of passion, went to [the victim]s house with the intent to fight him without use of any weapons. [Fn. omitted.] The jury could find a natural consequence of this conduct would be a fistfight; the fistfight might escalate into felony battery; and the felony battery reasonably lead to death. We will ignore for purposes of this argument our conclusion that Cress did not act in the heat of passion. Even if he went to the victims house intending only a fistfight, under the instructions given the jury utilizing the natural and probable consequences doctrine, he had to have either conspired to commit murder, an aggravated assault or a battery, or aided and abetted an aggravated assault or battery and the murder was a natural and probable consequence of his act. Cresss argument asks the jury to concoct a scenario that simply did not happen. There was no evidence that a fistfight occurred. Once Cress committed any of the acts, outlined above, which established his liability as a conspirator or as an aider and abettor, it didnt matter what he actually intended (i.e., even if he didnt intend Phillips to shoot the victim), as long as the shooting was a natural and probable consequence of his act.

Finally, Cress asserts that because he may have been acting under heat of passion at the time he participated in the conspiracy to kill the victim, which requires the intent to kill, the jury should have been instructed on heat of passion. Of course, his participation in the conspiracy continued until the time of the shooting, and, as we have already concluded, there was insufficient evidence of heat of passion at that time.

Assuming, arguendo, that the trial court erred in refusing to give instructions on heat of passion voluntary manslaughter, we conclude, for reasons already stated, that there is no reasonable probability the error affected the outcome. (People v. Breverman, supra, 19 Cal.4th at p. 165.)

ii. Involuntary Manslaughter

The defendants^[28]assert that they were entitled to involuntary manslaughter instructions, based on the commission of various misdemeanors. We disagree.

Cress asserts, Based on a causation theory, if the jury found [Cress]s criminally negligent conduct was the proximate cause of Phillips shooting [the victim], it could have reasonably returned a guilty verdict of involuntary manslaughter. First, Cress points to no evidence showing that he committed only a criminally negligent act and he does not state what that act might be. (People v. Benavides (2005) 35 Cal.4th 69, 102, 103; People v Wright (1976) 60 Cal.App.3d 6, 11.) Then, he gets specific by asserting that the jury could find that he brandished a knife and this act proximate[ly] cause[d] . . . Phillips [to shoot] . . . the victim. First, there was no evidence Phillips brandished a knife. Although the jury could reasonably conclude that Cress went to the victims house with a knife on his person and the evidence established that Cresss knife was found inside the victims bathroom after the crime, it is pure speculation that Cress ever brandished it or did so where Phillips could see him. More importantly, the evidence does not provide a causal connection between the brandishing, if it occurred, and Phillips shooting the victim. Finally, there is no sua sponte duty to instruct on target offenses on a natural and probable consequences aiding and abetting theory unless they are identified by the prosecutor. (People v. Huynh (2002) 99 Cal.App.4th 662, 677.) Brandishing a knife was neither identified by the prosecutor, nor, as we have stated, supported by the evidence. (Id. at p. 681 (dis. opn. of Mosk, J.).)

Cress cites People v. Moore (1857) 8 Cal. 90, 93, 94, People v.Emmons (1882) 61 Cal. 487, 488, 489, People v. Munn (1884) 65 Cal. 211, 213, 214, and Peoplev. McNabb (1889) 79 Cal. 419, 420, in support of his assertion that if he intended to commit only simple assault or battery or conspired to commit those crimes, under the natural [and probable] consequence[s] doctrine, he could be found guilty of involuntary manslaughter . . .. Moore did not even mention involuntary manslaughter, holding only that one who kills upon sudden quarrel cannot be guilty of first degree murder. (People v. Moore, supra, 8 Cal. at pp. 93-94.) In Emmons, the California Supreme Court stated, in dicta, that if the victim, who had been thrown from a third-story window, had died, the perpetrators would have been guilty of either murder or manslaughter. (People v. Emmons, supra, 61 Cal. at pp. 488-489.) As with Moore, involuntary manslaughter was not even mentioned. Munn holds that when a defendant hits a victim with his fist, not intending to kill him, he is guilty only of manslaughter. (People v. Munn, supra, 65 Cal. at p. 214.) Although the court recited that involuntary manslaughter occurs when death results from the commission of a misdemeanor, no further substantive comment about it was made. The court reversed the judgment of conviction of second degree murder, additionally, because the jury had been instructed that it is presumed that a person who knowingly and willfully does an act which is illegal intends, inter alia, the possible consequences of his act. The McNabb court, which did not have the facts of the crime before it, condemned the trial court for reading the opinion in Munn to the jury. (People v. McNabb, supra, 79 Cal. at pp. 419-420.) The logic of Cresss argument is as lacking as are the authorities he cites in support of it.

Cress and Salcido^[29]assert that they were entitled to involuntary manslaughter instructions, citing the dissent in People v. Huynh, supra, 99 Cal.4th at pp. 662, 681. In fact, the majority opinion in Huynh defeats their claim. There, the defendant testified that he agreed to a plan to have someone in the car in which he was traveling throw a beer bottle at another car, forcing it to stop and then assault its occupants with a portion of a steering wheel locking device. He claimed that before this could be accomplished, he was surprised when a fellow occupant of his car shot into the other car, killing one of its occupants and wounding another. The Court of Appeal rejected the defendants claim that he was entitled to involuntary manslaughter instructions as an aider and abettor of misdemeanor assault, saying, Throwing the beer bottle under these circumstances constituted a felony . . . . Using the steering wheel locking device . . . to assault the occupants of the [other car] cannot logically be construed to be [a] . . . [misdemeanor]. Of course, the agreement among [the occupants of the defendants car] constituted a conspiracy which is chargeable as a felony. (Id. at pp. 678-679, fns. omitted.) Likewise, the evidence here did not demonstrate that the battery Cress or Salcido aided and abetted or conspired to commit was a misdemeanor. Salcido described Phillips and Cress as pretty big guys. Cress knew he had a knife on his person. Salcido was present to speed Phillips and Cress from the scene, and, possibly, to act as backup if things went south for them. People v. Bohana (2000) 84 Cal.App.4th 360, 372, which Cress and Salcido also cite, merely holds that where a killing results from the commission of a misdemeanor, the defendant may be guilty of involuntary manslaughter, a proposition with which we have no quarrel. However, Bohana did not even deal with the doctrine of natural and probable consequences. Moreover, Bohana pointed out, Depending on the circumstances surrounding its commission, battery may be the predicate misdemeanor for a conviction of involuntary manslaughter. (Id. at p. 372, italics added.) As we have concluded, the circumstances here were such that the battery conspired or aided and abetted by Cress and Salcido was not a misdemeanor.

Finally, if the trial court erred in failing to give instructions on involuntary manslaughter as a natural and probable consequence of Cress and Salcido conspiring to or aiding and abetting battery, the evidence was such that the error does not require reversal.

b. Intent for Conspiracy

Cress contends that his conviction must be reversed because the trial court failed to instruct the jury that conspiracy to murder requires the intent to kill. Under the instructions given, in order to find Cress guilty under the theory that he conspired to commit murder, the jury had to find that Cress had the specific intent to commit murder. The jury was given only one definition of first degree murder, and it required the intent to kill. Therefore, we agree with the trial court that the proffered instruction was unnecessary and, contrary to Cresss current assertion, the jury could not have relied upon implied malice to convict him of first degree murder.

c. Battery as the Target Offense of Aiding and Abetting or Conspiracy

Cress and Salcido contend that battery cannot serve as the target offense for aiding and abetting or conspiracy, the natural and probable consequences of which are a first degree murder. Cress specifically requested the aiding and abetting instruction that included the reference to battery but not the conspiracy instructions with the same reference. Therefore, he cannot now object to the giving of the former instruction. While we note that Salcido, alone amongst the defendants, orally objected to the giving of any instructions on conspiracy, once the trial court resolved to give them, he did not object to the inclusion of battery as the target offense of the conspiracy. We further note that the record shows that neither Cress nor Phillips requested the second conspiracy instruction that included battery as a target offense, yet it is noted on the instruction itself that it was requested by the defense.^[30]

Cress and Salcido rely on People v. Prettyman (1996) 14 Cal.4th 248, 267 and People v. Butts (1965) 236 Cal.App.2d 817, 836, on which the Prettyman language is based. Prettyman stated, in dicta, If . . . the jury had concluded that defendant . . . had encouraged codefendant . . . to commit an assault on [the victim] but that [defendant] had no reason to believe that [codefendant] would use a deadly weapon . . . to commit the assault, then the jury could not properly find that the murder of [the victim] was a natural and probable consequence of the assault encouraged by [the defendant]. (People v. Prettyman, supra, at p. 267.) The Butts court concluded there was insufficient evidence that the defendant aided and abetted the murderers fatal use of [a knife] (People v. Butts, supra, at p. 836) because there was no evidence he advised and encouraged use of the knife, . . . he had advance knowledge of [the stabbers] wrongful purpose to use a knife or . . . he had shared [the stabbers] criminal intent to resort to a dangerous weapon. . . .  The evidence shows [the defendants] awareness of participation in a fist fight, not a knife fight. (Id. at pp. 836-837.) Salcido claimed at some point to knowing only that they were going to beat up the victim and he denied knowing that the gun or knife would be involved. There is no evidence that Cress was unaware that Phillips was armed. He himself was armed with a knife.

As the People correctly point out, Prettyman cannot be applied as widely as Cress and Salcido wish us to do. In People v. Gonzales (2001) 87 Cal.App.4th 1, the appellate court rejected the defendants contentions that (1) there was insufficient evidence to support their convictions of first degree murder as a natural and probable consequence of the assault they aided and abetted where there was no evidence that either knew the shooter was armed with a gun, and (2) they were entitled to an instruction that they could not be convicted of the murder as a natural and probable consequence of the assault they aided and abetted unless the jury concluded that they knew the shooter was armed. Justice Epstein said of the above cited language in Prettyman, The Supreme Court has since [Prettyman] elaborated on the test for determining whether the crime committed was the natural and probable consequence of the intended target crime. The . . . [issue] is not whether the aider and abettor actually foresaw the additional crime, but whether, judged objectively, it was reasonably foreseeable. (People v. Mendoza (1998) 18 Cal.4th 1114, 1133[.]) [] Under the Mendozaexplication, the prosecutor was not required to present evidence that [the defendants] knew [the shooter] intended to use a gun. Rather, the issue was whether it was reasonably foreseeable under the circumstances that the gun would be used to commit a criminal act other than the target offense of assault. (People v. Gonzales, supra, at pp. 9-10, italics original.)^[31]

In People v. Montes (1999) 74 Cal.App.4th 1050, 1056, Division Three of this court, despite the above cited language in Prettyman and Butts, upheld the trial courts giving of instructions permitting the jury to convict the defendant of attempted murder as a natural and probable consequence of aiding and abetting assault or fighting in public. Our colleagues commented, To the extent Butts requires one accused of aiding and abetting to know of and encourage the perpetrators intended use of a weapon, it is out of step with Supreme Court authority. (People v. Godinez (1992) 2 Cal.App.4th 492, 501, fn. 5 . . . .) [] Butts is also more than three decades old, a remnant of a different social era, where street fighters commonly relied on fists alone to settle disputes.

In People v. Lucas (1997) 55 Cal.App.4th 721, 732 and People v. Solis (1993) 20 Cal.App.4th 264, 272 [disapproved on other grounds in People v. Prettyman, supra, 14 Cal.4th at p. 268, fn. 7], two different Courts of Appeal, one of them our colleagues in San Diego, held that a murder could be a natural and probable consequence of brandishing a firearm.^[32]

d. Peoples Special Instruction

As is pertinent here, the trial court gave the following instruction at the request of the People: As defined elsewhere, those who aid and abet a crime, those who unlawfully conspire to commit a crime which is subsequently completed, and those who directly perpetrate the crime are equally guilty of the commission of that crime. Also, those who aid and abet a crime or conspire to commit a crime, a natural and probable consequence of which is the commission of the charged crime, are equally guilty of the charged crime.

The court also gave CALJIC No. 3.00, the standard instruction on the guilt of perpetrators and aiders and abettors, which provides: Persons who are involved in committing a crime are referred to as principals in that crime. Each principal, regardless of the extent or manner of participation is equally guilty. Principals include: [] 1. Those who directly and actively commit the act constituting the crime, or [] 2. Those who aid and abet the commission of the crime.

All three defendants specifically requested the latter instruction be given. Despite this, they contend their convictions should be reversed because CALJIC No. 3.00 and the Peoples special instruction misstated California law. The latter merely restated and elaborated upon the former. Their request for CALJIC No. 3.00 waives their complaint on appeal. (People v. Catlin (2001) 26 Cal.4th 81, 150.)

e. CALJIC Nos. 3.02 and 6.11, and the Peoples Special Instruction

Cress and Salcido contend that their convictions must be reversed because CALJIC Nos. 3.02 and 6.11, along with the Peoples special instruction, set forth above, contain an impermissible mandatory and conclusive presumption that a person intends the natural consequences of voluntary acts. First, we note that both defendants requested CALJIC Nos. 3.02 and 3.00, and therefore waived any error as to CALJIC No. 3.02 and the Peoples special instruction. CALJIC No. 6.11 provides: Each member of a criminal conspiracy is liable for each act and bound by each declaration of every other member of the conspiracy if that act or declaration is in furtherance of the object of the conspiracy. [] The act of one conspirator pursuant to or in furtherance of the common design of the conspiracy is the act of all conspirators. [] A member of a conspiracy is not only guilty of the particular crime that to his knowledge his confederates agreed to and did commit, but is also liable for the natural and probable consequences of any [crime] [act] of a co-conspirator to further the object of the conspiracy, even though that [crime] [act] was not intended as a part of the agreed upon objective and even though he was not present at the time of the commission of that [crime] [act]. [] You must determine whether the defendant is guilty as a member of a conspiracy to commit the originally agreed upon crime or crimes, and, if so, whether the crime alleged in Count 1 was perpetrated by co-conspirator[s] in furtherance of that conspiracy and was a natural and probable consequence of the agreed upon criminal objective of that conspiracy. [] In determining whether a consequence is natural and probable you must apply an objective test based not on what the defendant actually intended but on what a person of reasonable and ordinary prudence would have expected would be likely to occur. The issue is to be decided in light of all of the circumstances surrounding the incident. A natural consequence is one which is within the normal range of outcomes that may be reasonably expected to occur if nothing unusual has intervened. Probable means likely to happen.

Cress and Salcido contend that CALJIC No. 6.11 (as well as CALJIC No. 3.02) creates a mandatory presumption that a person intends the natural and probable consequences of his acts, which violates Sandstrom v. Montana (1979) 442 U.S. 510, People v. Rios (2000) 23 Cal.4th 450, 466, footnote 12, People v. Roder (1983) 33 Cal.3d 491, 498-504, and People v. Burres (1980) 101 Cal.App.3d 341, 350-353 [disapproved in People v. Colantuono (1994) 7 Cal.4th 206, 220, fn.11]. First, the instruction at issue (as well as CALJIC No. 3.02) does not create the presumption the defendants claim it does. Second, none of these cases they cite in support of their position can be construed to condemn the natural and probable consequences theory. Finally, the California Supreme Court has specifically upheld the theory in the face of a challenge identical to that advanced by the defendants.

The instruction at issue (as well as CALJIC No. 3.02) provides: In determining whether a consequence is natural and probable, you must apply an objective test, based not onwhat the defendant actually intended, but on what a person of reasonable and ordinary prudence would have expected [was] likely to occur. (Italics added.) Therefore, the natural and probable consequences theory, contrary to the defendants assertion, does not presume that the defendant intends the natural and probable consequences of his acts. It affixes liability regardless of the defendants intent as to the charged offense.

Sandstrom condemned an instruction which provided a presumption that the defendant intended the ordinary consequences of his acts in a case in which the defendant claimed that due to a personality disorder and alcohol consumption he did not kill the victim purposefully or knowingly. (Sandstrom v. Montana, supra, 442 U.S. at pp. 513-514.) The Supreme Court concluded that the instruction impermissibly constituted either a mandatory conclusive presumption, which relieved the state of its obligation to prove intent as an element of the crime beyond a reasonable doubt, or that it shifted the burden of persuasion on that element to the defendant. (Id. at pp. 522-525.) Here, in contrast, the People were required to prove that Cress and Salcido had the intent required of a conspirator or of an aider and abettor, depending on which theory of guilt each juror utilized.

Footnote 12 of People v. Rios, supra, 23 Cal.4th at page 466, states only that due process requires that the People shoulder the burden of proof on all guilt-related issues. We have no quarrel with this concept and the reasonable and probable consequences doctrine does not run afoul of it. Roder dealt with a presumption that dealers in secondhand merchandise know such merchandise is stolen when they receive stolen goods under circumstances that should cause them to question its source, yet they fail to. (People v. Roder, supra, 33 Cal.App.3d at p. 498.) Burres deals with an instruction that when an act inherently dangerous to others is committed with a conscious disregard of human life and safety, the intent to commit a battery is presumed. (People v. Burres, supra, 101 Cal.App.3d at p. 347.) In People v. Colantuona, supra, 7 Cal.4th at page 220, the California Supreme Court disapproved of the holding in Burres, commenting If [the] predicates [that the act is inherently dangerous to others, is done with conscious disregard of human life and safety and the perpertrator acts willingly] the requisite intent is not presumed . . . [but] is established by the evidence. However, as we have stated before, the application of the reasonable and probable consequences doctrine here did not relieve the People of their obligation to prove intent or any other element of aiding and abetting or conspiracy.

Finally, we quote from People v. Coffman and Marlow (2004) 34 Cal.4th 1, 107, . . . CALJIC No. 3.02 correctly instructs the jury on the natural and probable consequences doctrine. To the extent Coffman contends that imposition of liability for murder on an aider and abettor under this doctrine violates due process by substituting a presumption for, or otherwise excusing, proof of the required mental state,