P. v. Harris

Filed 10/27/17 P. v. Harris CA2/3
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
JULIUS DARNELL HARRIS et al.,
Defendants and Appellants.
B266099
(Los Angeles County
Super. Ct. No. TA133670)
APPEALS from judgments of the Superior Court of
Los Angeles County, Eleanor J. Hunter, Judge. Affirmed as to
defendant and appellant Julius Darnell Harris. Affirmed in part
and reversed in part with directions as to defendant and
appellant Michael Dunn.
Kathy R. Moreno, under appointment by the Court of
Appeal, for Defendant and Appellant Julius Darnell Harris.
Paul Couenhoven, under appointment by the Court of
Appeal, for Defendant and Appellant Michael Dunn.

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Kamala D. Harris, Attorney General, Gerald A. Engler,
Chief Assistant Attorney General, Lance E. Winters, Assistant
Attorney General, Margaret E. Maxwell and William H. Shin,
Deputy Attorneys General, for Plaintiff and Respondent.
_________________________
Defendant Julius Darnell Harris appeals his conviction for
first degree murder and true findings regarding firearm and gang
allegations; defendant Michael Dunn appeals his conviction for
second degree murder and true findings regarding firearm and
gang allegations.
Harris contends the trial court prejudicially erred by failing
to instruct the jury on the lesser-included offense of voluntary
manslaughter based on imperfect self-defense and heat-of-
passion. Harris also contends his lawyer was ineffective by
failing to request that the jury be instructed on provocation to
reduce the degree of murder.
Dunn contends the trial court improperly imposed two
prison priors based on the same conviction, and he is entitled to
an additional day of credit. He also contends the trial court
prejudicially erred by instructing the jury on the right of a home
occupant to use deadly force, and there was insufficient evidence
to support the gang enhancement. Harris joins in Dunn’s
arguments.
We reverse on the imposition of multiple prison priors and
find that Dunn is entitled to an additional day of credit;
otherwise we hold that reversible error did not occur and affirm
both judgments.

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FACTUAL AND PROCEDURAL BACKGROUND
I. Procedural Background
Dunn and Harris were charged by information with murder
(Pen. Code, § 187, subd. (a);1 count 1),2 with allegations that the
crime was for the benefit of a criminal street gang (§ 186.22,
subd. (b)(1)(C)), and that each personally used, and personally
and intentionally discharged a firearm, causing great bodily
injury and death (§ 12022.53, subds. (b), (c) & (d)). It was further
alleged that Dunn suffered one prior serious or violent felony
conviction (§ 667, subd. (a)), three prior convictions for which a
prison term was served (§ 667.5, subd. (b)), and a prior strike
(§§ 667, subd. (d) & 1170.12, subd. (b)).
After jury trial, Dunn was convicted of second degree
murder. The jury found true the gang allegation and that he
both personally used a firearm, and personally and intentionally
discharged a firearm, but found not true that he personally and
intentionally discharged a firearm causing great bodily injury.
Dunn admitted his prior conviction allegations. The court denied
probation and sentenced Dunn to 58 years to life in prison. He
received 391 days of presentence custody credit and was ordered
to pay a $10,000 restitution fine (§ 1202.4, subd. (b)), a $10,000
parole revocation fine (§ 1202.45) which was stayed, a $40 court
security fee (§ 1465.8), a $30 criminal conviction assessment
1 All further undesignated references are to the Penal Code.
2 The information also charged codefendant Maliek Dwayne
Grissett with two counts of attempted murder (§§ 664 & 187,
subd. (a); counts 2, 3). Grissett pleaded no contest to one count of
assault by means likely to produce great bodily injury. (§ 245,
subd. (a)(1).) Grissett is not a party to this appeal.

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(Gov. Code, § 70373), and $7,837.10 plus 10 percent interest in
restitution.
Harris was convicted of first degree murder. The jury
found true the gang allegation and that he both personally used a
firearm, and personally and intentionally discharged a firearm,
but found not true that he personally and intentionally
discharged a firearm causing great bodily injury and death. The
court denied probation and sentenced Harris to 45 years to life in
prison. He received 374 days of presentence custody credit and
was ordered to pay a $10,000 restitution fine (§ 1202.4, subd. (b)),
a $10,000 parole revocation fine (§ 1202.45) which was stayed, a
$40 court security fee (§ 1465.8), a $30 criminal conviction
assessment (Gov. Code, § 70373), and $7,837.10 plus 10 percent
interest in restitution.
II. Facts
Viewed in accordance with the usual rules on appeal
(People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence
established the following.
A. Background
Isaac “Ike” Gaston, Champagne Gaston, Izell Gaston,
Frank Gaston and Keon Easley3 were all siblings who lived
together in an apartment in Compton, California, apartment G.
The apartment was a two-story unit with a fenced and gated
patio. Directly inside the front door was a living room area. An
internal staircase to the second floor was on the far wall across
from the front door. A small bathroom was located in the far
3 To avoid confusion, the siblings will be referred to by their
first names.

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corner, near the staircase. The apartment complex was in the
territory of the Nutty Blocc Crip gang. Ike was a member of the
gang. Izell, Champagne, Frank and Keon were all affiliated with
the gang.
Harris, Dunn and Grissett were all members of the Nutty
Blocc gang. Champagne had known Harris and Grissett since
childhood. Harris’s moniker was Ju-Ju; Grissett’s moniker was
Chop-Chop.4 Champagne was also close with Jazzmine Harris, a
blood relative of Harris.5 Izell had also known Dunn for about 10
years; Dunn’s moniker was “Mike Dog.”
B. The Shooting
On March 9, 2014, Champagne threw a party with Harris
at the Gaston family apartment to celebrate the birthday of a
friend of Harris, pay off bills, and raise money for the Gaston
family to move. Over 100 people attended the party, including
members of the Nutty Blocc and Santana Blocc gangs. Many of
the Gaston siblings were present, including Ike, Izell, Frank and
Keon. Many of Harris’s relatives and friends attended, including
his brothers Darryl, Derrell, Darnell, sisters Darnesha and
Samiaa, a cousin, and friends Rita Richardson and Jazmin Lopez.
The party was disrupted when Grissett started scaring
people by stating he was going to shoot up the party. Champagne
told him to stop. Later, Grissett began disparaging other gangs
saying “f[uck] different gangs,” “f[uck] Fronthood” and Santana
4 A moniker is a gang nickname used by gang members to
avoid detection by law enforcement.
5 Also, Harris’s siblings and relatives will be referred to by
their first names.

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gangs.6 At this point, Champagne told Grissett she was
cancelling the party and she began yelling “the party’s over,”
“everybody . . . go home.” She told Harris she was shutting down
the party. Harris told Champagne they were “going to shut down
nothing,” and told Ike “you better tell [Champagne] she ain’t
shutting down nothing.”
The verbal dispute escalated into a series of physical
altercations, culminating in a gun battle. The first physical
confrontation occurred at the apartment’s gated patio. When
Harris blocked Champagne’s entry through the patio gate, she
pushed him to enter. Then, as Champagne went into the
apartment, Harris and Ike began fighting on the patio. Harris
threw the first punch at Ike and missed; Ike then punched
Harris, knocking Harris to the ground. The fight turned into a
melee, with five to six Nutty Blocc affiliates, including Grissett,
joining the attack on Ike. Grissett escalated the fight by
swinging a knife, stabbing Ike. Frank attempted to defend his
brother Ike by pushing the attackers away. After the fight on the
outside patio, Ike was woozy, stumbling and bleeding heavily
from his head. His brothers and cousins carried him into the
apartment.
The second physical confrontation ensued inside the
apartment. Harris challenged Ike to fight again by stating “you
got to catch my fade again.” Harris accused Ike of stabbing him,
and lifted his arm to show a bleeding cut. For the first time in
the incident, a gun appeared. In his hand, Ike held a gun
6 The People’s gang expert testified that the Fronthood and
Santana gangs were not Nutty Blocc’s enemies.

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pointing up, and he began waving it in a circular motion.7 Keon
tried, without success, to take the gun away from Ike;
Champagne ran up the stairs and called the police. After the
verbal challenge, another physical fight broke out in the living
room involving Harris, his brothers and Grissett, battling Ike’s
brothers Izell and Keon. Grissett again swung a knife, cutting
Izell above his right elbow. Izell and Frank were able to push Ike
halfway up the internal staircase, away from the fight. Ike was
bleeding profusely and semi-conscious. Frank forced some of the
partygoers out of the apartment, including Harris and Grissett,
and locked the door.
The quarrel did not end. Dunn, another Nutty Blocc gang
member, joined the conflict for the first time. When Dunn yelled
from outside the apartment, “Jazzmine, open the door, [bitch],”
Jazzmine [Harris’s relative] opened the door. Dunn and then
Harris entered and each fired multiple shots, Dunn shooting first,
towards the staircase bearing Ike and his siblings Izell,
Champagne, Keon and Frank. None of the siblings shot back.
Ike was shot in the chest and front shoulder; the chest shot was
fatal.
C. The Investigation
The night of the shooting, witnesses and bystanders were
uncooperative with law enforcement. Ike’s family members did
not immediately tell law enforcement what they knew about the
shooting because they did not want to be snitches or were scared
for their lives. Indeed, Keon talked to the police at the hospital
7 Keon recalled seeing Ike holding a .44-caliber revolver
before Ike was carried to the stairs and before Harris and
Grissett came inside. Keon later testified that he only noticed
the gun in Ike’s hand when Ike was on the stairs.

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after the shooting but lied about his name and birthday because
he was nervous and scared. That same night, Izell went with the
police to the station but did not cooperate or identify the shooters
because the shooters were active gang members and he thought
he and his family could get hurt.
Forensic evidence suggested a “gun battle.”8 The ballistic
evidence was consistent with two people standing at or near the
front door of apartment G, shooting into the apartment, one
shooting a nine-millimeter handgun, the other a .32-caliber
handgun.9 Additional spent casing, bullet and bullet fragments
found on the patio outside the fence suggested that someone shot
a nine-millimeter handgun from the walkway towards
apartment G.10 The evidence was also consistent with another
8 Blood was found on the patio, inside the apartment near
the front door, on the landing area, on the stair railing, on the
wall coming down the stairs, the upstairs hallway, and in the
living room; the highest concentration of blood was on the stairs.
9 Ballistic evidence was found around and inside the
apartment. One .32-caliber shell casing stamped C.B.C. was
located in front of the front door across from apartment G, two
more .32-caliber C.B.C. shell casings were just inside the front
door, and two 9-millimeter R.P. shell casings were in the
apartment, one under the front door.
10 Ballistic evidence was found outside apartment G. A spent
nine-millimeter R.P. casing was located on the sidewalk in front
of a nearby apartment; impact marks suggested that the shooter
had been standing near the casing, and was firing towards
apartment G. Another spent projectile that had struck the
sidewalk suggested an additional bullet travelling towards
apartment G. A bullet lodged in a fence surrounding the patio,
suggested another bullet travelling towards apartment G. Three

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shooter firing a revolver from inside the apartment from an area
near the front bathroom, using a cabinet as cover and firing
towards the front door.11 Finally, a bag of .44-caliber Smith &
Wesson Special live rounds, and a single live round were found at
the bottom of the stairs, and a holster for a large frame revolver
was found in the upstairs bedroom.
The criminalist that examined the ballistic evidence from
the crime scene and the bullet recovered from Ike’s body opined
that all three 9-millimeter casings marked R.P., were Remington
Peters brand, and had been fired from the same firearm; all three
.32-caliber cartridge cases stamped C.B.C., were Magtech brand,
and had been fired from a second gun; the bullet fragments
recovered from the exterior crime scene were all nine-millimeter
luger caliber, and had been fired from the same gun (although he
could not determine whether that was the same gun that had
fired the nine-millimeter bullets or the gun that had fired the .32-
caliber bullets). The bullet extracted from Ike’s body was a .32-
caliber bullet.
Harris was arrested on March 31, 2014 at an apartment in
Compton, and Grissett was later arrested on June 5, 2014 at
same location. On June 5, the police recovered a box of
ammunition stamped “R.P.” and Grissett’s identification at that
apartment. When Dunn was arrested on June 5, police seized
gang-related items, namely, a hat, jacket and shirt bearing the
Yankees insignia, and a phone book with gang monikers.
additional bullet strikes and three holes in the fence suggested at
least three more bullets fired towards apartment G.
11 No casings were recovered, suggesting a revolver. The
ballistic evidence of strikes to the curio cabinet and a bullet hole
in the television suggested at least two shots.

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D. Gang Evidence
Los Angeles County Sheriff’s Detective Scott Lawler
testified as a gang expert, and described the Nutty Blocc Crips as
a gang with 230-240 members, engaged in gun possession,
shootings, narcotics sales, and witness intimidation. Their
common color is blue and they identify themselves with New
York Yankees merchandise, and the letters “NY.” There is a
hierarchy of gang members. Dunn is a high-ranking Nutty Blocc
member; Harris and Grissett are members.12
Fear and respect are important concepts in gang culture.
Gangs must be feared by rival gang members and instill fear in
the community to operate as a gang. If a gang member is
disrespected, this would be seen as weakness, thus a disrespected
gang member would be expected to retaliate in a more aggressive
manner: if “he was slapped, he’d have to punch; if he was
punched, he’d have to stab; if he was stabbed, he’d have to shoot.”
Shooting and killing someone who disrespected a gang member
would be considered “putting in work for the gang” and would
earn respect among fellow gang members. A shooting of a fellow
gang member who had acted disrespectfully would benefit the
individual shooter by raising his status within the gang by
creating fear and respect, and would benefit the gang by
instilling fear and respect by enemy gangs, recruiting youths to
the gang, and facilitating the expansion of the gang’s territory.
12 Harris also admitted to another deputy on April 13, 2013
that he was a member of the Nutty Blocc gang with a moniker of
Ju-Ju.

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E. Harris’s Evidence
1. Forensic evidence
Criminalist Marc Scott Taylor, an expert on gunshot
residue (GSR), examined GSR collected from Izell the night of the
shooting, and found GSR on both hands, indicating that Izell
either fired a weapon, was in the vicinity of a fired weapon, or
came in contact with another source of GSR. Taylor also
reviewed the coroner’s findings regarding Ike and concluded the
particles recovered from Ike’s hands very likely came from a
gunshot.
Taylor explained the production of GSR. When a gun is
fired, the chemicals in the primer explode in a puff of smoke,
dispersing tiny particles, which are deposited on the hands of the
shooter and nearby objects and people. It can also be transferred
to a person touching the gun fired or touching the gunshot
wound, or touching a wall with a bullet strike. GSR dissipates
over time, normally lasting no more than five to seven hours.
GSR is more likely to get on another person in a confined
place. If multiple guns are being fired in a room, GSR may be
deposited on a person standing within five feet of a shooter. The
presence of GSR does not indicate who fired first.
2. Ballistic evidence
Bullet strikes were found on a building across the
courtyard from the Gaston residence. Theoretically, if someone
was shooting from inside the Gaston residence, they could have
fired those shots, “shooting high and wild.”

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3. Harris’s testimony
Harris testified. He grew up in the Nutty Blocc area, and
associated with the Nutty Bloccs since high school. He was not a
member of the gang and his tattoos were not gang-related. He
had known Dunn since he was 10 years old and Grissett his
whole life. He knew “Mike Dog” Dunn and “Chop-Chop” Grissett
as associates of Nutty Blocc. Harris had known Champagne and
Izell since high school; both were members of Nutty Blocc. He
had previously met Ike at a party.
Champagne offered to host a party for Harris’s friend.
Harris arrived at the party after 10:00 p.m. with his brothers
Derrell and Darnell and a cousin. A third brother Darryl arrived
separately. Soon after Harris arrived, he spoke to Ike who
appeared “probably buzzed” and was not acting normally. The
partygoers were a mixture of gang and non-gang members.
Harris went outside to help Champagne with Grissett who
had been walking around “banging on people.” Champagne was
yelling that she wanted to shut down the party. Ike came outside
and argued with Champagne about shutting the party down
before he had made money back for the drinks and food
purchased for the party. A fight began on the patio: Ike shoved
Harris twice; Harris said “if you push me again, we gonna fight.”
Ike hit Harris in the back of the head; Harris turned around and
shoved Ike against the wall. Ike bit Harris on his right shoulder.
When Harris tried to yank away, he fell on his back and Ike,
swinging, landed on top of Harris. He did not see Grissett with a
knife, did not know whether Grissett joined the fight and could
not tell if Ike was bleeding. Ike was pulled off Harris and Ike
said that he was going to get his gun. Harris got up and told his
cousin and some other women to leave because Ike was getting a
gun.

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Harris left, but returned to the party to look for his
brothers. He walked into the dimly-lit apartment through an
open door, and saw Ike, in the middle of the stairway with one of
his brothers, and a group of people at the bottom of the stairs.
When Ike began waving a long revolver, Harris ran toward the
dining area. Gunshots went off from the living room area, by the
stairs. Harris could not tell if Ike was firing his gun, whether
anyone in the bathroom area at the base of the stairs was firing a
gun, or the path of the bullets. Also, Harris did not see Dunn
that night. Harris denied that there was a second fight inside the
living room and ever telling Ike “ ‘I want to catch your fade.’ ”
Harris also denied possessing, pointing or firing a handgun at the
party.
After the gunshots stopped, Harris waited a few seconds,
ran towards the gate, and saw his brother Darryl, with a gunshot
wound to his right shoulder, in the bushes next to the patio.
4. Partygoer’s evidence
Rita Richardson went to the party with Harris’s sister
Darnesha, arriving at about 8:00 p.m. At some point, there was a
commotion, she and others ran inside the apartment, and the
door was closed. As Rita was kneeling in the corner near the
bottom of the stairs, the door opened, some people ran out, and
the door was closed again. She then was pushed into a corner
near a bathroom, the front door opened again, and a man, who
she later identified as Ike, came in waving a big gun, struggling
to hold on to it. Another man was trying to get the gun away.
Ike fell onto her legs, the gun fell, and the man who had been
trying to take the gun picked it up. Harris was not in the
residence at this time. Rita ran out of the house, and saw Harris
standing outside, shirtless. She heard a gunshot as she stood in
front of another apartment, ran to the parking area, heard

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another gunshot, jumped the complex fence, and then ran out of
the complex to the street. Harris and his brother, who was
bleeding, were outside on the street.
Darryl Slaughter, Harris’s brother, arrived at the party
about 10:00 p.m. While inside the apartment, he heard a
commotion from the patio area, went outside, heard yelling and
then heard 12 to 15 gunshots. Panicking, he ran away from the
party and was shot in the upper back. Darryl fell into a bush and
then Harris picked him up and carried him to the street. That
evening, Darryl never saw Harris with a gun or shooting, nor did
he see Dunn at the party or with a gun.
Harris’s friend, Jazmin Lopez, arrived at the party about
9:30 p.m. At some point when she was on the patio, she noticed a
woman yelling about a situation that had happened. No more
than 15 minutes later, a man pushed Harris, the two began a
fistfight, and more than 10 people began fighting. She then left
and sat in her parked car, and within 10 minutes Harris walked
out onto the street with his brother who had been shot.
Darnesha, Harris’s older sister, arrived at about 9:00 or
9:30 p.m. Inside, she saw Izell dancing, armed with a gun in his
waistband. She heard a commotion outside, went outside where
she saw Ike and Harris. She went back in, the front door closed,
and then reopened, there was another commotion, someone said
“go” and she left. Once outside, around the corner from the unit,
she heard shots coming from an unknown direction and ran
away. Harris was not with her at the time of the shooting. She
did not see Dunn at the party.
Samiia Farris, Harris’s stepsister, arrived at about
10:00 p.m. About an hour later, she saw a group of people
fighting on the patio. She did not see Harris involved in the
fight. As she ran out to the complex entrance, she heard

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gunshots. Harris and Darryl were running a few feet behind.
She did not see Dunn at the party.
F. Dunn’s evidence
Dunn called witnesses who impeached prosecution
witnesses with prior statements or challenged the adequacy of
the police investigation.
1. Gunshot residue evidence
Debra Kowal, a criminalist with the Los Angeles County
Coroner’s Office, analyzed the GSR kit collected from Ike. She
explained that when a gun is discharged, particles are produced
either made up of lead, barium and antimony (“three-component
particles”), lead and barium or lead and antimony (“two-
component particles”), or just lead (a “single-component
particle”). She found several consistent particles13 of GSR
recovered from Ike’s right hand and “many” recovered from his
left hand; accordingly Ike may have discharged a firearm, or had
his hands in the vicinity of a firearm that had been discharged or
received the particles from an environmental source. She would
expect to find GSR around the wound of a person shot by
someone standing 20 feet away. In a 15.5-foot by 19-foot room
where multiple guns had been fired, she would expect to see GSR
possibly “on everyone in a room that size.” Hypothetically, if Ike
had fired a .44-caliber handgun, she would expect to see
combinations of all three components, two of the three
components, or a single component. Also, bagging hands is an
appropriate way to preserve evidence. She also examined Izell’s
13 A “consistent” particle of GSR would be one of the two-
component particles, or a single-component particle, such as
lead.

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GSR kit and found particles characteristic of GSR. The positive
GSR tests for Ike and Izell do not necessarily mean that Ike or
Izell had fired a weapon.
DISCUSSION
I. Instructions
A. Proceedings Below and Arguments on Appeal
The trial court instructed the jury on first degree murder,
under the theories of premeditation and felony murder, and
second degree murder. As to defendant Dunn only, the jury was
instructed on self-defense and voluntary manslaughter based
upon imperfect self-defense. Counsel for Harris requested self-
defense, and voluntary manslaughter instructions based on
imperfect self-defense and heat of passion. The trial court ruled
that because Harris had testified at trial that he was not a
shooter, neither self-defense nor imperfect self-defense applied to
him. Harris contends the failure to instruct on the lesser
included offense of voluntary manslaughter based upon imperfect
self-defense was prejudicial error.14 Also, Harris asserts that his
14 The court also ruled that it was not going to give the
voluntary manslaughter heat of passion instruction (CALCRIM
No. 570) as there was no evidence of a “sudden heat or passion”
as to either defendant. Harris asserts that this too was
prejudicial error. Harris’s bare assertion that the trial court
erred in refusing his request for instruction on manslaughter
based on heat of passion is deemed waived. Briefs must provide
argument and legal authority for the positions asserted; lacking
such support, improperly raised issues are deemed waived.
(Pringle v. La Chappelle (1999) 73 Cal.App.4th 1000, 1003, fn. 2;
People v. Dougherty (1982) 138 Cal.App.3d 278, 282-283
[argument of counsel is insufficient; briefs must contain factual
underpinning, record references, argument and authority].)

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trial counsel failed to request that the jury be instructed on
provocation to reduce the murder from first degree to second
degree (CALCRIM No. 522), constituting ineffective assistance of
counsel.
Finally, the jury received modified instructions related to
self-defense including the right to eject a trespasser from real
property (CALCRIM No. 3475) and the right to defend real or
personal property (CALCRIM No. 3476). Counsel for Dunn
objected to the instructions; counsel for Harris neither explicitly
objected to the instructions nor joined in Dunn’s objection.15
Counsel for Dunn argued that the instructions were not
warranted because Ike and his siblings were not “in a position to
ask anybody to leave” “you have a party that people have been
invited to. You can[’t] call the people who c[o]me in trespassers.”
The court pointed to evidence in the record, indicating that
Champagne revoked any consent when the “[f]amily went in,
shut the door, locked it, and pushed people out.” The trial court
ultimately gave the instructions, deleting two repetitive
paragraphs and adding a concluding sentence based upon case
law. Harris and Dunn both assert this was prejudicial error.
B. Discussion
1. Applicable 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. (People v. Moye (2009) 47 Cal.4th 537,
548; People v. Breverman (1998) 19 Cal.4th 142, 154; People v.
15 Harris’s counsel’s failure to object could be explained by the
fact that the court had ruled that it was not going to instruct the
jury as to self-defense regarding Harris.

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Millbrook (2014) 222 Cal.App.4th 1122, 1137.) Instructions on a
lesser included offense must be given when there is substantial
evidence from which the jury could conclude the defendant is
guilty of the lesser offense, but not the greater. (People v.
Thomas (2012) 53 Cal.4th 771, 813; People v. Manriquez (2005)
37 Cal.4th 547, 584.) 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 instruction on a lesser included
offense. (People v. Whalen (2013) 56 Cal.4th 1, 68, disapproved
on another ground by People v. Romero and Self (2015) 62 Cal.4th
1, 44, fn. 17; People v. Wyatt (2012) 55 Cal.4th 694, 698.) In
deciding whether substantial evidence exists, we do not evaluate
the credibility of the witnesses, a task for the jury. (Wyatt, at
p. 698; Manriquez, at p. 585.) Substantial evidence to support an
instruction may exist even in the face of inconsistencies
presented by the defense itself. (Millbrook, at p. 1137.) The duty
to instruct on lesser included offenses is not satisfied by
instructing on only one theory of an offense if other theories are
supported by the evidence. (People v. Lee (1999) 20 Cal.4th 47,
61.)
We independently review whether the trial court erred by
failing to instruct on a lesser included offense. (People v. Souza
(2012) 54 Cal.4th 90, 113; People v. Booker (2011) 51 Cal.4th 141,
181.) Doubts about the sufficiency of the evidence to warrant an
instruction should be resolved in the defendant’s favor. (People v.
Moye, supra, 47 Cal.4th at p. 562; People v. Tufunga (1999) 21
Cal.4th 935, 944.) When considering whether lesser included
instructions should have been given, we view the evidence in the
light most favorable to the defendant. (People v. Millbrook,
supra, 222 Cal.App.4th at p. 1137; People v. Turk (2008) 164
Cal.App.4th 1361, 1368, fn. 5.)

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2. Imperfect self-defense
Harris contends that the trial court’s failure to instruct the
jury on the lesser included offense of voluntary manslaughter
based upon imperfect self-defense was prejudicial error.
Voluntary manslaughter is the intentional but nonmalicious
killing of a human being, and is a lesser offense of murder.
(§ 192, subd. (a); People v. Moye, supra, 47 Cal.4th at p. 549;
People v. Benavides, supra, 35 Cal.4th at p. 102; People v. Lee,
supra, 20 Cal.4th at p. 59.) A killing may be reduced from
murder to voluntary manslaughter if it occurs upon a sudden
quarrel or in the heat of passion on sufficient provocation, or if
the defendant kills in the unreasonable, but good faith, belief
that deadly force is necessary in self-defense. (People v. Beltran
(2013) 56 Cal.4th 935, 942, 951; People v. Manriquez, supra,
37 Cal.4th at p. 583.) Imperfect self-defense requires that the
defendant be in actual fear of imminent danger to life or great
bodily injury at the time of the homicide. (People v. Humphrey
(1996) 13 Cal.4th 1073, 1082; People v. Sinclair (1988)
64 Cal.App.4th 1012, 1016 (Sinclair).)
Sinclair noted that in People v. Barton (1995) 12 Cal.4th
186, cited by Harris, which set out the “intellectual and
jurispruden[t]ial underpinnings” of a trial court’s duty to instruct
on inconsistent lesser included offenses, the defendant admitted
shooting the victim. (Sinclair, supra, 64 Cal.App.4th at pp. 1020,
1022; see Barton, at pp. 192-193.) In Barton, the defendant
testified that he shot the victim by accident while screaming at
the victim to drop his knife. (Barton, at pp. 192-193.) Sinclair
explained that Barton was entirely consistent with other
Supreme Court decisions allowing voluntary manslaughter
instructions to be read on request when the defendant admits
shooting the victim but denies any intent to kill. (Sinclair, at

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p. 1021.) Sinclair noted, however, that “no Supreme Court
decision has held that when the defendant completely denies
shooting the victim . . . voluntary manslaughter instructions are
in order.” (Ibid.)
Harris asserts that since the trial court instructed the jury
on imperfect self-defense as to Dunn, the court should have also
instructed on that lesser included offense as to him as the
evidence was the same as to both. We disagree. Here there were
crucial differences between the evidence against Harris and
Dunn. Critically, Harris testified that he did not have a weapon
and did not fire any shots. Harris’s claim of substantial evidence
to support the instruction rests on the fact that Champagne
testified “that a gun was shown,” Harris testified that Ike “was
waving the gun around,” and ballistic evidence of a gun battle.
However, there was no evidence from any witness of Harris’s
actual belief in the need to defend himself against imminent
peril. Rather, all witnesses testified that Dunn fired first,
followed by Harris. As Harris’s own testimony was a complete
denial, there was no evidence of the required state of mind to
support imperfect or perfect self-defense.
Moreover, even if the court improperly failed to instruct,
reversal for failure to instruct on a necessarily lesser included
offense is not warranted unless “an examination of ‘the entire
cause, including the evidence,’ discloses that the error produced a
‘miscarriage of justice.’ (Cal. Const., art. VI, § 13.) This test is
not met unless it appears ‘reasonably probable’ the defendant
would have achieved a more favorable result had the error not
occurred. (People v. Watson (1956) 46 Cal.2d 818, 836.)” (People
v. Breverman, supra, 19 Cal.4th at pp. 149, 178.) If the
instruction should have been given since Dunn and Harris were
similarly situated, Dunn’s result establishes that it is not

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“reasonably probable” that Harris would have achieved a more
favorable result. The jury clearly did not believe that malice was
obviated. As to both Harris and Dunn, the jury was instructed on
two theories of first degree murder: malice aforethought and
felony murder. Since Dunn was found guilty of second degree
murder, the jury obviously rejected the People’s alternative
theory of felony murder. Stated in other words, to convict Dunn
of second degree murder, the jury must have found malice, a
finding incompatible with self-defense or imperfect self-defense.
Moreover, the jury found true, as to both defendants, the
allegations that the murder was committed for the benefit of a
criminal street gang with the specific intent to promote, further
or assist in the gang members’ criminal conduct. Such a finding
is at odds with the idea that Harris shot Ike to avoid imminent
danger to his life or great bodily injury. The existence of any
evidence, no matter how weak, will not justify instruction on a
lesser included offense. (People v. Whalen, supra, 56 Cal.4th at
p. 68; People v. Wyatt, supra, 55 Cal.4th at p. 698.)
3. Right to use force to expel a trespasser and defend property
Dunn contends that the trial court erred because there
were no facts to support CALCRIM Nos. 3475 and 3476 and these
instructions deprived him of his self-defense defense.16 The
16 Harris joined in this argument in his Reply Brief. Putting
aside the issue of forfeiture, the self-defense instructions were
limited to Dunn. Also, the jury was instructed that some “of
these instructions may not apply, depending on your findings
about the facts of the case. Do not assume [that] just because I
give a particular instruction that I am suggesting anything about
the facts. After you have decided what the facts are, follow the
instructions that do apply to the facts as you find them.”

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modified version of CALCRIM No. 3475 the trial court gave the
jury was phrased as follows: “The lawful occupant of a home may
request that a trespasser leave the home. If the trespasser does
not leave within a reasonable time and it would appear to a
reasonable person that the trespasser poses a threat to the home
or the occupants, the lawful occupant may use reasonable force to
make the trespasser leave. [¶] Reasonable force means the
amount of force that a reasonable person in the same situation
would believe is necessary to make the trespasser leave. [¶] If
the trespasser resists, the lawful occupant may increase the
amount of force he uses in proportion to the force used by the
trespasser and the threat the trespasser poses to the property.
[¶] When deciding whether the lawful occupant used reasonable
force, consider . . . what a reasonable person in a similar situation
with similar knowledge would have believed. If the lawful
occupant’s beliefs were reasonable, the danger does not need to
have actually existed. [¶] The right of a lawful occupant to
defend himself and his property is a relevant consideration in
determining whether a defendant may prevail when he seeks to
negate malice aforethought by asserting the affirmative defense
of imperfect self-defense. If the [] lawful occupant has a right to
use force to defend himself in his home, then defendant Dunn has
no right of self-defense, imperfect or otherwise.” (Italics added.)17
(CALCRIM No. 200.) Given these circumstances, there is no
reasonable likelihood that the jury would have applied these
instructions to Harris.
17 The court referenced People v. Watie (2002) 100
Cal.App.4th 866, 878 (cited in the use notes to CALCRIM
No. 3475), to support the proposition that the right to defend
one’s home may negate a defendant’s claim of imperfect self-
defense. Specifically, the trial court quoted “the right of a victim

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The trial court further instructed with CALCRIM No. 3476:
“The possessor of real property may use reasonable force to
protect that property from imminent harm. A person may also
use reasonable force to protect the property of a family member
or guest from immediate harm. [¶] Reasonable force means the
amount of force that a reasonable person in the same situation
would believe is necessary to protect the property from imminent
harm. [¶] When deciding whether the possessor of real property
used reasonable force, consider all the circumstances as they
were known to and appeared to him and consider what a
reasonable person in a similar situation with similar knowledge
would have believed. If the possessor of real property’s beliefs
were reasonable, the danger does not need to have actually
existed.”
The trial court did not deprive Dunn of his self-defense
defense by giving the modified versions of CALCRIM Nos. 3475
and 3476. The instructions do not misstate the law. (See People
v. Watie, supra, 100 Cal.App.4th at p. 878 [“If [victim] had a right
to use force to defend himself in his home, then defendant had no
right of self-defense, imperfect or otherwise.”].) Nor did the
instruction compel the jury to find that Dunn was a trespasser.
Rather, the instructions merely summarized the legal principles
that the jury should apply if it believed Dunn was a trespasser
to defend himself and his property is a relevant consideration in
determining whether a defendant may prevail when he seeks to
negate malice afore thought [sic] by asserting the affirmative
defense of imperfect [self-]defense. [¶] If [the victim] had a right
to use force to defend himself in his home, then defendant has [sic]
no right of self-defense, imperfect or otherwise. So that’s the
language I’m intending to put in based on the case[.]” (Italics
added.) This language remains a correct statement of the law.

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when he entered the house on the night he killed Ike. In a
separate instruction, the trial court told the jury that “[s]ome of
[the] instructions may not apply, depending on your findings
about the facts of the case. Do not assume just because I give a
particular instruction that I am suggesting anything about the
facts. After you have decided what the facts are, follow the
instructions that do apply to the facts as you find them.” Thus, if
the jury found that Dunn was not a trespasser, the jury would
have understood that the modified CALCRIM Nos. 3475 and
3476 instructions did not apply.
Nor did the instructions lower the prosecution’s burden of
proof. Neither CALCRIM No. 3475 nor CALCRIM No. 3476
specifically address or allocate the burden of proof. The trial
court instructed the jury in CALCRIM Nos. 103 and 220: “A
defendant in a criminal case is presumed to be innocent. This
presumption requires that the People prove a defendant guilty
beyond a reasonable doubt. Whenever I tell you the People must
prove something, I mean they must prove it beyond a reasonable
doubt.” The court reminded the jury of the People’s burden of
proof in the instructions on self-defense,18 first degree murder,19
18 The trial court instructed the jury in CALCRIM No. 505
(Justifiable Homicide: Self-Defense): “Defendant Dunn is not
guilty of murder or manslaughter if he was justified in killing
someone in self-defense. . . . [¶] . . . [¶] The People have the
burden of proving beyond a reasonable doubt that the killing was
not justified. If the People have not met this burden, you must
find defendant Dunn not guilty of murder or manslaughter.”
19 The trial court instructed the jury in CALCRIM No. 521
(First Degree Murder [Pen. Code, § 189]): “The People have the
burden of proving beyond a reasonable doubt that the killing was
first degree murder rather than a lesser crime. If the People

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and voluntary manslaughter.20 Finally, the prosecutor explicitly
acknowledged that she had to prove that Dunn was not acting in
self-defense.
Even though the instructions did not direct the jury to find
that he was a trespasser, Dunn argues CALCRIM Nos. 3475 and
3476 undermined his defense because they permitted the jury to
find he was a trespasser; in defendant’s view, there was no
substantial evidence on which the jury could so find. After
reviewing the record, we do not share defendant’s view. There
was evidence, that although Harris had been invited to the party,
the invitation was revoked when Champagne yelled “the party’s
over” and told everyone to go home. Defendants’ permission to
stay was certainly revoked when Frank forced some of the
partygoers, including Harris and Grissett, out of the apartment
and locked the door. Dunn and Harris were only able to obtain
re-entry when Dunn screamed for Harris’s cousin to “open the
door, bitch.” This evidence was sufficient to deserve
consideration by the jury as to whether Dunn was in fact a
trespasser. (See People v. Williams (2015) 61 Cal.4th 1244, 1263
have not met this burden, you must find the defendant not guilty
of first degree murder and the murder is second degree murder.”
20 The trial court instructed the jury in CALCRIM No. 571
(Voluntary Manslaughter: Imperfect Self-Defense or Imperfect
Defense of Another−Lesser Included Offense [Pen. Code, § 192]):
“The People have the burden of proving beyond a reasonable
doubt that the defendant was not acting in imperfect self-defense.
If the People have not met this burden, you must find the
defendant [Dunn] not guilty of murder.”

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[“ ‘[s]ubstantial evidence’ ” that warrants jury instruction is
“ ‘evidence sufficient to “deserve consideration by the jury” ’ ”].)21
4. Failure to instruct on provocation
Harris contends that his attorney provided ineffective
assistance of counsel by failing to request CALCRIM No. 522 on
provocation.22 Harris recognizes that CALCRIM No. 522 is a
pinpoint instruction and need not be given sua sponte. (People v.
Rogers (2006) 39 Cal.4th 826, 880 [addressing equivalent
instruction, CALJIC No. 8.73]; People v. Hernandez (2010) 183
Cal.App.4th 1327, 1333 [CALCRIM No. 522].) Accordingly, he
contends that his attorney’s failure to request the instruction
21 Insofar as Dunn argues that there was insufficient evidence
to support CALCRIM No. 3476 regarding the right to defend
property, any error is harmless as the instruction was repetitive
of CALCRIM No. 3475. Moreover, as noted, the jury was
instructed that some of the instructions might not apply, and
directed to follow the instructions that apply to the facts found.
(See CALCRIM No. 200, cited in footnote 15, ante.) On this
record, reversal is not required because it was not reasonably
probable that without CALCRIM No. 3476 the result would have
been more favorable to Dunn.
22 CALCRIM No. 522 (Provocation: Effect on Degree of
Murder) provides: “Provocation may reduce a murder from first
degree to second degree [and may reduce a murder to
manslaughter]. The weight and significance of the provocation, if
any, are for you to decide. [¶] If you conclude that the defendant
committed murder but was provoked, consider the provocation in
deciding whether the crime was first or second degree murder.
[Also, consider the provocation in deciding whether the defendant
committed murder or manslaughter.] [¶] [Provocation does not
apply to a prosecution under a theory of felony murder.]”

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constituted ineffective assistance of counsel. In order to prevail
on such a claim, Harris would have to establish not only that trial
counsel’s performance in this regard “fell below an objective
standard of reasonableness” “under prevailing professional
norms,” but also that he was prejudiced thereby. (Strickland v.
Washington (1984) 466 U.S. 668, 687-688.) He fails to make
either showing. Defense counsel had a legitimate tactical reason
for failing to request an instruction on provocation that would
focus the jury’s attention on Harris’s mental state when he fired
the gun: such attention might undermine the defense that Harris
was not the shooter. Indeed, Harris testified he never fired a
shot, and his counsel argued that Izell shot his brother by
accident. An attorney does not provide ineffective assistance by
failing to request a pinpoint instruction that is inconsistent with
his theory of the defense. (People v. Wader (1993) 5 Cal.4th 610,
643.)
II. There Was Sufficient Evidence to Support the Gang
Allegations
Dunn and Harris contend there was insufficient evidence
that the killing was committed “ ‘with [the] specific intent to
promote, further, or assist’ ” the Nutty Blocc gang. In evaluating
a claim of insufficient evidence as to an enhancement, “we review
the entire record in the light most favorable to the judgment to
determine whether it contains substantial evidence—that is,
evidence that is reasonable, credible, and of solid value—from
which a reasonable trier of fact could find the defendant guilty
beyond a reasonable doubt. [Citation.] We presume every fact in
support of the judgment the trier of fact could have reasonably
deduced from the evidence. [Citation.] If the circumstances
reasonably justify the trier of fact’s findings, reversal of the
judgment is not warranted simply because the circumstances

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might also reasonably be reconciled with a contrary finding.
[Citation.] ‘A reviewing court neither reweighs evidence nor
reevaluates a witness’s credibility.’ [Citation.]” (People v.
Albillar (2010) 51 Cal.4th 47, 59-60.)
To establish a gang allegation, the prosecution must prove
that the crime was “committed for the benefit of, at the direction
of, or in association with any criminal street gang, with the
specific intent to promote, further, or assist in any criminal
conduct by gang members.” (§ 186.22, subd. (b)(1).)
“ ‘Commission of a crime in concert with known gang members is
substantial evidence which supports the inference that the
defendant acted with the specific intent to promote, further or
assist gang members in the commission of the crime.’ ” (People v.
Miranda (2011) 192 Cal.App.4th 398, 412.) “[A] trier of fact may
rely on expert testimony [on] gang culture and habits to reach a
finding on a gang allegation.” (In re Frank S. (2006) 141
Cal.App.4th 1192, 1196; see also People v. Gardeley (1996)
14 Cal.4th 605, 617 disapproved on other grounds in People v.
Sanchez (2016) 63 Cal.4th 665.) An expert’s opinion can be
sufficient to support a section 186.22, subdivision (b)(1) gang
allegation. (People v. Vang (2011) 52 Cal.4th 1038, 1048.)
Substantial evidence supports a reasonable inference that
Dunn and Harris had the specific intent to promote, further or
assist the Nutty Blocc gang based on their gang membership, the
circumstances surrounding the crime, and the expert’s opinion.
Harris, Dunn and Grissett were all self-admitted Nutty Blocc
members who bore gang tattoos. Notwithstanding that the
Gaston family was also heavily associated with the Nutty Blocc
gang, they took steps to ensure that gang violence would not
occur at the party. Everyone coming into the party was searched;
some were “gang checked” for weapons. The incident commenced
on the patio when Grissett−a Nutty Blocc member−threatened to

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shoot up the party and disparaged two other gangs which “[got]
along” with Nutty Blocc. When Champagne then threatened to
shut down the party, Harris began arguing with Ike, threw a
punch at Ike, who in turn punched Harris, knocking him to the
ground. This knock to the ground appeared to be the act of
disrespect which precipitated the further actions. Six other
Nutty Blocc members, including Grissett, joined the brawl.
Later, the conflict continued inside the apartment after Harris
challenged Ike to fight again and a fight ensued involving Harris,
his brothers and Grissett battling Ike’s brothers, Izell and Keon.
Frank pushed Harris and Grissett out of the apartment, and
locked the door. Harris returned with yet another fellow Nutty
Blocc gang member, Dunn, who had not been involved in the
earlier incidents, and shot at Ike and his siblings, killing Ike.
The gang expert, Detective Lawler, explained how shooting
a fellow gang member who disrespected the gang would be
considered putting in work for the gang and would earn respect.
Fear and respect are paramount for gang culture to operate in a
community. When a Nutty Blocc member responds with violence
towards a fellow gang-member that has disrespected him, that
instills fear within the people who are present, and the
community as a whole. Lawler opined that shooting a fellow
gang member who had acted disrespectfully, in circumstances
similar to the instant case, would benefit the individual shooter
by raising his status in the gang. It would also benefit the gang
by instilling respect and fear in enemy gangs, recruiting youths
to the gang, and facilitating expansion of the gang’s territory.
Thus, notwithstanding that Ike was a member of the defendants’
gang, based on this testimony, the jury could reasonably infer,
even if there was a personal motive for the shooting, that Harris
and Dunn killed Ike with the specific intent to promote, further
or assist the Nutty Blocc gang. (See People v. Vazquez (2009) 178

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Cal.App.4th 347, 353 [jury could find defendant committed
murder with intent to achieve the gang expert’s “predicted effect
of intimidating rival gang members and neighborhood residents,
thus facilitating future crimes committed by himself and his
fellow gang members”]; People v. Albillar, supra, 51 Cal.4th at
p. 62 [jury presented with two competing inferences was “entitled
to credit the evidence that the attack on [Ike] was gang related,
not [personal].”])23
III. Prior Prison Term Enhancement and Presentence
Custody Credit
Dunn contends, and the People agree, that the trial court
erred in imposing consecutive enhancements for the same prior
felony conviction. The People alleged, and Dunn admitted, that
he had suffered a conviction in case No. TA092555, and that this
constituted a prison prior under section 667.5, subdivision (b) and
a serious felony prior under section 667, subdivision (a). At
sentencing, the court added one year for the prison prior and five
years for the serious felony conviction. The parties concur that
23 This case is therefore not like People v. Ramon (2009)
175 Cal.App.4th 843 and People v. Ochoa (2009) 179 Cal.App.4th
650, cases involving stolen vehicles which could be used in other
gang-related crimes, where the courts found the evidence
insufficient to support the gang allegations. In Ramon, the only
evidence supporting the enhancement was the gang expert’s
testimony that the defendant and his codefendant were members
of the same gang and they were stopped driving a stolen vehicle
(a crime commonly committed by their gang) in territory their
gang claimed. (Ramon, at p. 849.) In Ochoa, the defendant,
while stealing a car, made no gang signs or signals or otherwise
engaged in gang behavior during the commission of the crime.
(Ochoa, at p. 662.)

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the one-year enhancement should be stayed. (See People v.
Walker (2006) 139 Cal.App.4th 782, 794, fn 9.)
Dunn also contends, and the People agree, that Dunn was
entitled to 392 days of custody credit rather than the 391 days
awarded by the trial court upon counsel’s representation. Dunn
was arrested on June 5, 2014 and sentenced on July 1, 2015.
Thus he is entitled to 392 days of actual presentence custody
credits.
DISPOSITION
The judgment as to Dunn is affirmed in part and reversed
in part. On remand, the trial court shall impose and stay the
section 667.5, subdivision (b) enhancement as to case
No. TA092555, correct his presentence custody credits to reflect
392 days of actual custody credits, amend the abstract of
judgment, and forward the amended abstract of judgment to the
Department of Corrections and Rehabilitation. Accordingly, the
judgment as to Dunn is affirmed in all other respects. The
judgment as to Harris is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORT
BACHNER, J.
We concur:
EDMON, P.J. LAVIN, J.
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.

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