Filed 12/27/18; Opinion following rehearing

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent,

v.

TYSHAUN VASQUEZ,

Defendant and Appellant.

B281178

Los Angeles County

Super. Ct. No. BA432561

APPEAL from a judgment of the Superior Court of Los

Angeles County, Bernie C. LaForteza, Judge. Reversed and 

remanded.

Emry J. Allen, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief 

Assistant Attorney General, Lance E. Winters, Assistant 

Attorney General, Susan Sullivan Pithey and Michael J. Wise, 

Deputy Attorneys General, for Plaintiff and Respondent.

_______________________________________
2

INTRODUCTION

Under California law, the trial judge in a criminal case 

must instruct the jury on all lesser-included offenses supported 

by substantial evidence. Here, defense counsel requested an 

instruction on the lesser-included offense of involuntary 

manslaughter—an unlawful killing without malice. Counsel 

conceded that defendant Tyshaun Vasquez administered a 

beating that killed Eddie Ray Smith, Jr., but argued that 

defendant was not subjectively aware his actions could be deadly 

because Smith had a hidden spinal injury (metal rods had been 

placed in his neck in a prior surgery), the fatal injury was 

immediately adjacent to the metal rods, and the victim’s other 

injuries were relatively minor. Defendant contends that the trial 

court should have granted his instructional request because there 

was substantial evidence to support the instruction and that the 

error was prejudicial. We agree and reverse the judgment.1

PROCEDURAL BACKGROUND

By information filed January 6, 2016, defendant and 

codefendant Jordan E. were each charged with one count of 

special-circumstance first degree murder (Pen. Code,2 §§ 187, 

subd. (a), 190.2, subd. (a)(17); count 1) and one count of 

attempted second degree robbery (§ 664/211; count 2). Count 2 

further alleged that Jordan personally used a deadly weapon (a 

trash can) in the commission of the offense (§ 12022, 

 

1 Because we reverse on this basis, we do not reach defendant’s 

additional arguments. 

2 All undesignated statutory references are to the Penal Code.
3

subd. (b)(1)).3 Defendant pled not guilty and denied the special 

circumstance.

Trial was by jury. Defendant did not testify. The court 

denied his request to instruct on involuntary manslaughter as a 

lesser-included offense of murder but granted his request to 

instruct on second degree murder. The jury convicted defendant 

of second degree murder. It acquitted him of first degree murder 

and attempted robbery and found the special-circumstance 

allegation not true. 

Defendant moved for a new trial, again arguing that the 

court should have instructed the jury on involuntary 

manslaughter. The court denied the motion and sentenced 

defendant to 15 years to life in state prison for count 1. The court 

awarded him 793 days actual custody credit and 0 days local 

conduct credit.

Defendant filed a timely notice of appeal. 

FACTUAL BACKGROUND

On November 30, 2014, at around 12:30 a.m., defendant

and Jordan were hanging out in the skate area of Rancho La 

Cienega Park in Los Angeles. There, they encountered Smith.

According to Angel T., the sole eyewitness at trial, when 

defendant and Jordan saw Smith, defendant said, “let’s go get 

that guy. Let’s see if he got money or jewelry or anything like 

that stuff.” The 43-year-old Smith was “skinny”: 5 feet 10 inches 

tall and 129 pounds. In contrast, defendant was 19 and “notably” 

taller and heavier than Smith.

 

3 Jordan’s case was subsequently transferred to juvenile court. He is 

not a party to this appeal.
4

Defendant and Jordan approached Smith and grabbed him. 

Defendant dug around in Smith’s pockets. It is unclear whether 

he took anything. Jordan and defendant then punched Smith 

about 15 times, knocking him to the ground. While Smith was on 

the ground, defendant stomped on his head “and like his whole 

body pretty much” approximately 20 times. Smith, meanwhile,

was yelling for help. As defendant stomped on Smith, Jordan

picked up a nearby metal trash can and threw it at Smith, hitting

him in the right side of the hip. Eventually, defendant and 

Jordan left the scene.

Soon after the incident, Joel Williams, then a firefighter 

with the Los Angeles Fire Department, responded to the scene 

after being flagged down by a woman in the park. Williams saw 

that the man on the ground, whom he later identified as Smith, 

needed medical attention. Williams moved the trash can he found 

on Smith’s body and after performing a standard examination, 

determined that Smith was dead. 

Kevin Young, a medical examiner for the Los Angeles 

County Department of Medical Examiner-Coroner, performed the 

autopsy. Young noted a variety of external injuries to Smith’s 

body: trauma on both sides of his head; abrasions on his forehead, 

temple, and cheek; lacerations on the side of his eye; a swollen 

right ear with a hematoma and blood and abrasions in front of 

and behind it; and other injuries. Each of these injuries, 

considered alone, was nonlethal. All were premortem. 

Young also found one significant internal injury: a neck 

fracture in the C2-C3 vertebrae, just below the jawline. This 

injury, which can be fatal because it restricts breathing, was 

likely caused by impact wounds to Smith’s head: blunt force 

trauma was determined to be a “substantial contributing factor” 
5

to Smith’s death. Young noted that during a prior orthopedic 

surgery, metal rods had been inserted into Smith’s neck directly

adjacent to the fracture. That surgery and the rods compromised 

Smith’s neck strength and made him more susceptible to a neck 

injury in the area. Indeed, because the break occurred right at 

the edge of the metal rod, the rod could have acted as a fulcrum 

and contributed to the break.

Still, it would take a high-impact event to cause a serious 

injury to Smith’s neck. Getting punched in the neck would 

“probably not” be enough. In addition, falling or getting punched 

in the face likely would not have created a high enough impact to 

fracture Smith’s neck. But getting stomped in the head—either 

once or repeatedly—or being hit with a metal trash can could be

enough to cause a fracture. The location of the impact would have 

affected the severity of the injury, since the rods made Smith’s 

neck weaker in some areas, such as at the C2-C3 vertebrae, but 

did not weaken his neck as much in other areas. And Young 

testified that Smith did not have any other serious head or neck 

injuries, such as a fractured skull, tooth damage, intracranial 

bleeding, or brain bruises.

In the examination, Young also inventoried Smith’s 

personal effects. Smith had 12 cents, a wallet, a social security 

card, multiple credit cards, and a cell phone, but no jewelry.

DISCUSSION

Defendant contends the trial court’s refusal to instruct on 

involuntary manslaughter as a lesser-included offense to murder

was erroneous and prejudicial. The People argue the instruction 

was not supported by substantial evidence and overwhelming 

evidence rendered any error harmless. We conclude there was 

substantial evidence that defendant acted without malice and 
6

there is a reasonable probability that he would have obtained a 

more favorable outcome if the involuntary manslaughter 

instruction had been given.

1. Instructional Duty and Standard of Review

“California law requires a trial court, sua sponte, to 

instruct fully on all lesser necessarily included offenses supported 

by the evidence.” (People v. Breverman (1998) 19 Cal.4th 142, 

148–149, 154–155, 162 (Breverman).) The requirement applies 

when there is substantial evidence that the defendant committed 

the lesser offense instead of the greater offense. (Id. at pp. 162, 

177.) 

“In deciding whether evidence is ‘substantial’ in this 

context, a court determines only its bare legal sufficiency, not its 

weight.” (Breverman, supra, 19 Cal.4th at p. 177.) Thus, “courts 

should not evaluate the credibility of witnesses, a task for the 

jury” (id. at p. 162), and uncertainty about whether the evidence 

is sufficient to warrant instructions should be resolved in favor of 

the accused (People v. Tufunga (1999) 21 Cal.4th 935, 944). Even 

evidence that is unconvincing or subject to justifiable suspicion 

may constitute substantial evidence and may trigger the lesserincluded-offense requirement. (People v. Turner (1990) 50 Cal.3d 

668, 690.) 

When the defense requests the instruction, the refusal to 

instruct on a lesser-included offense may also violate the federal 

constitution’s requirement that the courts afford every criminal 

defendant “ ‘a meaningful opportunity to present a complete 

defense.’ ” (Crane v. Kentucky (1986) 476 U.S. 683, 690; People v. 

Rogers (2006) 39 Cal.4th 826, 868, fn. 16.) As part of this right, a 

defendant is “ ‘entitled to adequate instructions on the defense 

theory of the case’ if supported by the law and evidence [citation] 
7

and ‘ “has a constitutional right to have the jury determine every 

material issue presented by the evidence ...” ’ [citation].” (People 

v. Eid (2010) 187 Cal.App.4th 859, 879; People v. Cash (2002) 28 

Cal.4th 703, 736 [“Defendants have a constitutional right to have 

the jury determine every material issue presented by the 

evidence, and a trial court’s failure to instruct on lesser included 

offenses denies them that right.”].)

We review de novo the trial court’s failure or refusal to 

instruct on a lesser-included offense. (People v. Cook (2006) 39 

Cal.4th 566, 596.)

2. Involuntary manslaughter is a lesser-included offense 

of murder.

Murder is “the unlawful killing of a human being, or a 

fetus, with malice aforethought.” (§ 187, subd. (a).)4 Malice may 

be express or implied. (§ 188.) Express malice is the intent to kill, 

whereas implied malice exists “where the defendant ... acted with 

conscious disregard that the natural and probable consequences 

of [his] act or actions were dangerous to human life. [Citation.]” 

(People v. Gonzalez (2018) 5 Cal.5th 186, 197.) 

Implied malice has both objective and subjective 

components. The objective test requires “ ‘ “an act, the natural 

consequences of which are dangerous to life ... .” ’ ” (People v. 

Knoller (2007) 41 Cal.4th 139, 143.) This means the act must 

carry “ ‘a high degree of probability that it will result in death.’ ” 

(Id. at p. 152.) The subjective test requires that the act be

 

4 While felony murder does not require malice, the jury in this case 

rejected that theory when it acquitted defendant of both first degree 

murder and attempted robbery and found the robbery-murder special 

circumstance not true. (People v. Gonzalez (2012) 54 Cal.4th 643, 654.)
8

performed “ ‘ “by a person who knows that his conduct endangers 

the life of another ... .” ’ ” (Id. at p. 143.) “In short, implied malice 

requires a defendant’s awareness of engaging in conduct that 

endangers the life of another—no more, and no less.” (Ibid.)

An unlawful killing without malice is involuntary 

manslaughter. (§ 192; see, e.g., People v. Blakeley (2000) 23 

Cal.4th 82, 91; People v. Butler (2010) 187 Cal.App.4th 998, 

1008–1009 [addressing the difference between implied malice 

murder and involuntary manslaughter]; CALCRIM No. 580.)5

“Generally, involuntary manslaughter is a lesser offense included 

within the offense of murder.” (People v. Gutierrez (2002) 28 

Cal.4th 1083, 1145.) Accordingly, an instruction on involuntary 

manslaughter is required whenever there is substantial evidence

indicating the defendant acted without conscious disregard for 

human life and did not form the intent to kill.6

3. The court denied defendant’s requests for an 

instruction on involuntary manslaughter.

After the prosecution rested, the court held a hearing to

discuss jury instructions. Defense counsel asked the court to 

instruct the jury on involuntary manslaughter based on a lack of 

malice. Counsel’s theory was that if the jury rejected Angel’s 

testimony, it would have to acquit defendant of attempted 

robbery, felony murder, and the special circumstance. At that 

 

5 Voluntary manslaughter is not at issue in this case. 

6 An unlawful killing may also amount to involuntary manslaughter 

under a misdemeanor-manslaughter theory (§ 192, subd. (b)), but that 

rule is not at issue here. (See, e.g., People v. Lee (1999) 20 Cal.4th 47, 

60–61 [court erred in failing to instruct sua sponte on misdemeanormanslaughter theory of involuntary manslaughter].)
9

point, the only contested issue would be defendant’s intent—that 

is, whether he acted with malice.

Defense counsel explained that in light of “the coroner’s 

testimony that none of the [other] blows were fatal and given the 

fulcrum of where the neck was broken, there was no intent to 

kill.” Though defendant committed an unlawful act, it was “a 

freak thing.” “Beating someone badly, but not inflicting deadly 

blows, not knowing that the person had prior ... cervical surgery 

before, how would anybody know? Again, there’s no intent to kill. 

It’s a terrible thing that happened, but if the jury rejects—again, 

rejects count 2 [attempted robbery] and the permutations of it, 

you know, we’re left with regular murder or manslaughter. And, 

again, that’s a question of fact for the jury to decide, the intent 

aspect. If there’s no intent to kill, it can be nothing but 

involuntary manslaughter.”

The prosecutor responded that “if this were a fistfight, I 

totally get where counsel is coming from. But someone lying on 

the ground being stomped on 20 times is evidence that—I don’t 

see how a person is not aware that that behavior can result in 

death and disregard it, the likelihood of someone dying from that 

behavior.”

The following day, the court issued a written statement of 

decision denying counsel’s request for an involuntary 

manslaughter instruction. The court made various factual 

findings, including that “defendant stomped approximately 20 

times [on] the victim’s head and body in a forceful manner.” The 

court then concluded the evidence did not support the instruction 

because “defendant did not simply start a fistfight in which an 

unlucky blow resulted in the victim’s death. He savagely beat and 

stomped the victim to death.” Because this was felonious conduct, 
10

the court declined to give the instruction. (See Breverman, supra, 

19 Cal.4th at pp. 162, 177 [court may not weigh the evidence or 

evaluate witness credibility when deciding whether substantial 

evidence supports an instruction on lesser-included offense].)

Defense counsel urged the court to reconsider its decision. 

While the court might not have been required to give the 

instruction sua sponte, counsel argued, it was required to give it 

upon request. Counsel explained that Smith’s broken neck was 

an anomaly, and “given the facts that none of the injuries, 

internal or external, described by Dr. Young were fatal or lifethreatening, [ ] the perpetrator would not know the natural and 

probable consequences would be” dangerous to human life. The 

significance of this evidence was “for the trier of fact to make the 

determination with regards to malice, to intent.”

Indeed, counsel revealed that if the court did give the 

involuntary manslaughter instruction, he would not even ask the 

jury to acquit; he would instead ask the jury to convict defendant 

of involuntary manslaughter. “My client should be held 

responsible for what he did,” counsel explained. “But to say that 

the jury should not even consider [involuntary manslaughter]

because of the nature of the beating, that someone should know 

that the natural consequences would be dangerous to human life, 

I don’t think that’s the situation given the type of injuries and 

based on the coroner’s testimony.”

Finally, counsel emphasized that “the court is precluding 

me from arguing a defense that I laid out at the very beginning, 

during voir dire. I was that confident, given the nature of the 

injuries.”

After hearing further argument, the court again denied 

counsel’s request for the instruction. 
11

4. There was substantial evidence from which the jury 

could conclude defendant acted without malice.

As discussed, a defendant acts without implied malice if he 

lacks a subjective awareness that his conduct carries “ ‘a high 

degree of probability that it will result in death.’ ” (People v. 

Knoller, supra, 41 Cal.4th at p. 152.) When viewed in the light 

most favorable to defendant, there was substantial evidence in 

this case from which a reasonable juror could conclude defendant 

was not subjectively aware that his actions could kill Smith.

(People v. Millbrook (2014) 222 Cal.App.4th 1122, 1137 

[sufficiency of the evidence supporting lesser-included offense 

instruction viewed in the light most favorable to the defendant].)

California courts have long recognized that not all beatings 

are life-threatening. “Normally, hitting a person with the hands 

or feet does not constitute murder in any degree. [Citations.] But 

if death ... is a reasonable or probable consequence of the beating 

the offense may be murder. [Citation.] Thus, to constitute murder 

there has to be either an intent to kill or such wanton and brutal

use of the hands [or feet] without provocation as to indicate that 

they would cause death ... .” (People v. Teixeira (1955) 136 

Cal.App.2d 136, 150, italics added; accord, People v. Cravens

(2012) 53 Cal.4th 500, 508 [“This state has long recognized ‘that 

[while] an assault with the fist ... may be made in such a manner 

and under such circumstances as to make the killing murder’ 

[citation] ... ‘if the blows causing death are inflicted with the fist, 

and there are no aggravating circumstances, the law will not 

raise the implication of malice aforethought, which must exist to 

make the crime murder.’ [Citation.]”].) 

Here, there was sufficient evidence from which the jury 

could have reasonably concluded that the beating defendant 
12

administered to Smith was not so wanton and brutal as to 

demonstrate a conscious disregard for human life. Young, the 

medical examiner, testified that almost all of Smith’s injuries—

taken alone—were nonlethal. Smith did not suffer a fractured 

skull, tooth damage, intracranial bleeding, or brain bruises, 

which might be expected from multiple high-impact blows to the 

head. As to Smith’s neck specifically, a prior surgery had inserted 

metal rods into his neck and spine, making Smith vulnerable to a 

serious neck injury in the precise spot where the break occurred. 

The weakness of Smith’s neck was not visible externally. And 

Young agreed that since Smith’s neck snapped at a point 

immediately adjacent to the end of the metal rod, the rod could 

have acted as a fulcrum, thereby increasing the force on that 

area. A reasonable juror could have inferred from this evidence 

that the blows were not particularly severe and further inferred 

that defendant believed beating up Smith would injure him but

not kill him.

The People cite two cases in support of their claim that no 

substantial evidence supported an involuntary manslaughter

instruction here. Both are inapt. 

In Guillen, the manner and circumstances of a jail assault 

on a murder victim provided sufficient evidence, under an aiding 

and abetting theory, to support the jury’s conclusion that each 

defendant inmate was subjectively aware that the natural and 

probable consequences of his conduct were dangerous to life. 

(People v. Guillen (2014) 227 Cal.App.4th 934, 982–992 (Guillen).) 

In that case, the victim, a child molester, was escorted to one of 

the only places in the jail where deputies could not see an attack.

(Id. at pp. 985–986.) Between 30 and 50 inmates assaulted the 

victim—by hitting him, kicking him, stomping on him, spanking 
13

him, spitting on him, urinating on him, spilling hot coffee on him, 

stripping off his clothes, and putting foreign items in his 

rectum—and the victim’s injuries, which included 21 broken ribs, 

a punctured lung, and a hemorrhagic back, were consistent with 

a high-velocity car accident or a fall from multiple stories. (Ibid.) 

The court concluded a reasonable person would have understood 

that this type of vicious group assault could be fatal. (Id. at 

pp. 988–989.)

Unlike in Guillen, in which the court assessed whether the 

evidence was sufficient to support the verdict, we must decide 

whether there was sufficient evidence to warrant an instruction 

on a lesser-included offense. Thus, whereas Guillen viewed the 

evidence in the light most favorable to the prosecution, we must 

view the evidence in the light most favorable to the defense. 

(People v. Millbrook, supra, 222 Cal.App.4th at p. 1137.) And 

while the Guillen victim’s premortem injuries were consistent 

with a fall from a tall building, here, other than the blow to the 

neck, all of Smith’s injuries were nonlethal. Finally, unlike in 

Guillen, the prosecution here did not argue—and the jury was not 

instructed—that defendant acted in concert with or aided and 

abetted Jordan.

In Evers, the other case cited by the People, the court 

concluded there was no error in failing to instruct on involuntary 

manslaughter where the child victim suffered severe injuries, and 

evidence of the defendant’s prior child abuse established he was 

aware of the risk of his actions. (People v. Evers (1992) 10 

Cal.App.4th 588.) In that case, there was undisputed evidence 

the deceased child suffered physical injuries equivalent to those 

that would result from a 10-to-30-foot fall. (Id. at p. 597.) The 

record established the defendant had used violent force against 
14

the child in the past, and he, therefore, must have been aware of 

the risk of death. (Id. at p. 598.) There was no similar evidence 

here. 

In sum, because there was substantial evidence in this case 

from which a reasonable juror could have doubted that defendant 

was subjectively aware the beating could kill Smith, the court 

was required to instruct on the lesser-included offense of 

involuntary manslaughter.

5. The error was prejudicial.

In a non-capital case, the erroneous failure to instruct on a 

lesser-included offense is typically an error of state law. (People v.

Rogers, supra, 39 Cal.4th at pp. 867–868.)7 Thus, we must 

reverse if there is a reasonable probability that the defendant 

would have obtained a more favorable outcome if the instruction 

had been given. (Breverman, supra, 19 Cal.4th at p. 178; People v. 

Soojian (2010) 190 Cal.App.4th 491, 520–521 [a hung jury is a 

more favorable result than a guilty verdict].) A reasonable 

probability “does not mean more likely than not, but merely a 

reasonable chance, more than an abstract possibility. [Citations.]” 

(College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 

715.) An error is prejudicial whenever the defendant can 

“ ‘undermine confidence’ ” in the result achieved at trial. (Ibid., 

quoting People v. Watson (1956) 46 Cal.2d 818, 837.) “In 

assessing prejudice, we consider both the magnitude of the error 

and the closeness of the case.” (People v. Vasquez (2017) 14 

Cal.App.5th 1019, 1041.)

 

7 Because we conclude the error here was prejudicial under state law, 

we do not address whether it also violated defendant’s federal 

constitutional rights.
15

The rationale for requiring courts to instruct on lesserincluded offenses is to avoid forcing the jury into an 

“ ‘unwarranted all-or-nothing choice’ ” that creates the risk the 

jury will convict on the charged offense even though one of the 

elements remains in doubt because “ ‘the defendant is plainly 

guilty of some offense.’ ” (People v. Hughes (2002) 27 Cal.4th 287, 

365; accord, People v. Majors (1998) 18 Cal.4th 385, 410 [“One of 

the primary reasons for requiring instructions on lesser included 

offenses is ... to eliminate ‘ “the risk that the jury will convict ... 

simply to avoid setting the defendant free.” ’ [Citation.]”]; People 

v. Barton (1995) 12 Cal.4th 186, 196, 203 [“ ‘Our courts are not 

gambling halls but forums for the discovery of truth.’ ” The “jury’s 

truth-ascertainment function” is impaired unless it is provided 

with “the opportunity to decide whether the defendant is guilty of 

a lesser included offense established by the evidence”].)

Under the instructions given in this case, the jury was 

forced to choose between convicting defendant of second degree

murder and acquitting him entirely. As we shall explain, there is 

a reasonable probability that the jury chose second degree

murder to avoid the more implausible alternative that defendant 

was not guilty of any crime. Put another way, we hold there is a 

reasonable probability that at least one juror would have voted to 

convict defendant of involuntary manslaughter if given the 

chance.

5.1. The instruction embodied the defense theory of 

the case.

The failure to instruct on a lesser-included offense is more 

likely to be prejudicial where it strikes at the heart of the 

defense. (People v. Neidinger (2006) 40 Cal.4th 67, 79; see People 

v. McDonald (1984) 37 Cal.3d 351, 376 [“An error that impairs 
16

the jury’s determination of an issue that is both critical and 

closely balanced will rarely be harmless.”].) 

Here, counsel structured the entire defense around one 

element: malice. In his opening statement, counsel explained that 

defendant, “right or wrong, has a penchant for getting into stupid 

fights. Okay? Nothing to do with attempted robberies or—just 

getting into fights all the time.” Counsel acknowledged Smith 

was beaten. But most of Smith’s injuries were nonlethal. And, 

counsel explained, Smith had prior injuries that had 

compromised the vertebrae in the very spot in which his neck 

broke. Counsel, therefore, concluded his opening statement by 

telling the jury, “I would suggest to you that at the end of the day 

that you’re going to find ... that this is in fact an involuntary

manslaughter.”

The cross-examination of the medical examiner was also 

structured around malice. For example, counsel asked Young 

about each of Smith’s injuries and confirmed that none of them 

was potentially fatal. He confirmed Smith’s teeth were intact, 

that his skull was not fractured, and that there was no trauma to 

his brain. Then, counsel spent the bulk of cross-examination 

asking Young about the relationship between Smith’s prior neck 

injury and his death. Counsel elicited testimony that the break 

itself was right on the edge of the metal rods, and those rods 

could have acted as a fulcrum that helped cause the break. As he 

explained when he requested the instruction, this was the 

foundation of counsel’s theory that defendant acted without 

conscious disregard for human life.

Yet after asking the jury in his opening statement to 

convict of involuntary manslaughter, in his closing argument, 

counsel asked them to acquit entirely. He still conceded the other 
17

elements: “There’s no issue whether Tyshaun Vasquez was 

involved in this case. ... That’s not an issue here. The issue is a 

question of was there a crime committed and what is that crime?”

And he still focused on intent: did defendant know that death 

was a natural and probable consequence of his actions? 

Counsel made it clear, however, that he didn’t think an 

acquittal was the right result. For example, he explained, “In this 

case, the prosecution chose to file murder. Granted, there’s two 

theories that the prosecutor has in this case, but they chose to file 

murder. Didn’t choose to file manslaughter, didn’t choose to file 

justifiable homicide. Those are not issues. The issue before us is 

what the prosecutor chose to file, and you have to address that. 

You have to deal with that.” Again: “We all agree people should 

be held responsible for what they do, but in a court situation, 

we’re limited to what’s charged. Again, it’s a homicide. The 

prosecution has a lot of ways to charge homicide. ... The choice 

was made by the prosecutor here.” 

In the end, without an instruction on involuntary 

manslaughter, defense counsel was left to tell the jury this: “You 

know, I’d love to tell you, sure, hold Tyshaun responsible; but 

based on what we have here and now, this case has not been 

proven beyond a reasonable doubt. It’s just the way it was pled.”

The court’s refusal to instruct the jury on the lesserincluded offense of involuntary manslaughter placed defense 

counsel in the untenable position of arguing that his client—who 

had plainly killed a man—should be set free. 

5.2. The evidence of malice was not overwhelming.

The People insist the court’s refusal to instruct on 

involuntary manslaughter was harmless because “there was 

overwhelming evidence of malice in this case. ... [Defendant]
18

cannot credibly claim that stomping on the victim’s head and 

upper body 20 times did not constitute ‘malice’ sufficient for 

second degree murder.” 

We disagree. As discussed above, there was sufficient

evidence from which a reasonable juror could conclude defendant 

did not intend to kill Smith. Most of Smith’s injuries were 

nonlethal. To be sure, that defendant unwittingly chose a victim 

with a preexisting neck condition would usually be irrelevant, for 

a defendant takes his victim as he finds him and should not 

benefit from picking a vulnerable one. Here, however, Smith’s 

prior neck injury speaks to defendant’s subjective awareness of 

the consequences of his actions because it could show that 

defendant did not intend to beat Smith badly enough to kill him. 

Nor do the People’s two cited authorities—provided without 

any discussion or analysis—support their position. 

In Moye, the court concluded any error in failing to instruct 

the jury sua sponte on a heat-of-passion theory of voluntary 

manslaughter—in addition to instructions that were given on 

imperfect self-defense manslaughter—was harmless under state 

law. (People v. Moye (2009) 47 Cal.4th 537, 557–558 (Moye).) 

There, the jury heard and rejected defendant’s theories of selfdefense and imperfect self-defense. (Id. at p. 558.) Once it did so, 

there was little (if any) evidence to support the claim that he was 

acting in a subjective “heat of passion” when killing the victim. 

Specifically, defendant’s testimony that the victim kicked his car 

and attacked him with a bat did not amount to legally sufficient 

provocation required for a heat-of-passion defense unrelated to 

the perceived need for self-defense. (Ibid.) But the evidence did

establish that after enlisting the help of two compatriots, the 

defendant found the victim, chased him “over a chain link fence 
19

and through a field, caught him and bludgeoned him to death 

with a baseball bat, after which defendant disposed of the 

bloodied murder weapon in a nearby storm drain.” (Id. at p. 557)

The strength of this evidence, coupled with the jury’s rejection of 

the self-defense claim, rendered the error harmless.

In Flood, the trial court failed to instruct the jury that to 

convict the defendant of evading a peace officer, the prosecution 

was required to prove that the defendant evaded actual peace 

officers. (People v. Flood (1998) 18 Cal.4th 470, 505 (Flood).) The

court found the error harmless under the Chapman v. California 

(1967) 386 U.S. 18 test for federal constitutional errors because 

the “[d]efendant never referred to this element of the crime 

during the trial and did not argue to the jury that the prosecution 

had failed to prove this element beyond a reasonable doubt; 

indeed, he did not ask that the issue even be considered by the 

jury. Furthermore, defendant presented no evidence regarding 

the peace officer element, and failed to dispute the prosecution’s 

evidence regarding the issue.” (Flood, at p. 505.) These actions 

were “tantamount to a concession” of the element. (Ibid.)

Moreover, the Flood court noted, “the verdict 

demonstrate[d] that the jury resolved every contested issue in 

favor of the prosecution and, in particular, credited the testimony 

of all of the witnesses who testified regarding [the officers’] status 

as peace officers. On the only issue related to the ‘peace officer’ 

issue that defendant actually contested, the jury rejected 

defendant’s contention and found that the motor vehicle in which 

the officers were driving was ‘distinctively marked.’ ” (Flood, 

supra, 18 Cal.4th at p. 505.)

Unlike Moye, the case before us is not one in which the jury 

rejected other theories of guilt in favor of one requiring a more 
20

culpable mental state, indicating that if properly instructed, the 

jury would still have found defendant guilty of a crime greater 

than involuntary manslaughter. And unlike Flood, this is not a 

case in which the jury demonstrably decided every contested 

issue in favor of the prosecution and fully credited every 

prosecution witness. To the contrary, the jury’s verdicts here—

acquitting defendant of premeditated murder, acquitting 

defendant of felony murder, acquitting defendant of attempted 

robbery, and finding the attempted-robbery special circumstance 

not true—indicate it rejected the prosecution’s theory of the case. 

Furthermore, since Angel provided the only evidence to support 

the attempted robbery count, the jury apparently rejected or 

found problematic at least some of Angel’s testimony.

Nor is this a case in which the court failed to instruct on a 

peripheral issue, as in Moye, or a conceded element, as in Flood. 

Unlike the trial courts in those cases, the court here refused 

repeated defense requests to instruct on a lesser crime that 

embodied the entire defense. Here, the court refused to instruct 

on a lesser crime that targeted the flaws in the only element the 

defense contested.

5.3. The jury struggled with its verdict.

“ ‘The necessity for instructions on lesser included offenses 

is based in the defendant’s constitutional right to have the jury 

determine every material issue presented by the evidence. 

[Citations.] ... “True, if the prosecution has not established 

beyond a reasonable doubt every element of the offense charged, 

and if no lesser offense instruction is offered, the jury must, as a 

theoretical matter, return a verdict of acquittal. But a defendant 

is entitled to a lesser offense instruction—in this context or any 

other—precisely because he should not be exposed to the 
21

substantial risk that the jury’s practice will diverge from theory. 

Where one of the elements of the offense charged remains in 

doubt, but the defendant is plainly guilty of some offense, the jury 

is likely to resolve its doubts in favor of conviction.” [Citation.]’ 

[Citation.]” (People v. Tinajero (1993) 19 Cal.App.4th 1541, 1547.)

There is evidence here that the jury struggled with just this 

problem. As discussed, the defense did not contest identity and 

conceded that defendant killed Smith. Defendant’s only claim 

was that he lacked malice. Indeed, defense counsel acknowledged 

that ideally, defendant should be convicted of something, and 

lamented that the prosecution’s charging decision placed the jury 

in such a difficult position. Yet without an involuntary 

manslaughter instruction, the jury was left to decide between 

first degree murder, second degree murder, and ... nothing. As we 

have discussed at length above, the error went to the heart of the 

defense case that defendant did not try to rob Smith and didn’t 

know the beating could kill him. 

The jury agreed with that theory—at least in part. Jurors 

acquitted defendant of premeditated murder. They acquitted him 

of felony murder. And they acquitted him of attempted robbery.

In so doing, they rejected the prosecutor’s theory of the case and 

at least some of Angel’s testimony. (See People v. Mullendore 

(2014) 230 Cal.App.4th 848, 857 [failure to instruct on a lesserincluded offense was prejudicial where jury’s decision to convict 

on another count indicated doubts about the defendant’s use of 

force].) The jury deliberated for two days, asked several 

questions, and received supplemental closing arguments. (See 

People v. Cardenas (1982) 31 Cal.3d 897, 907 [six hours of 

deliberations is evidence of a close case]; People v. Woods (1991) 

226 Cal.App.3d 1037, 1052 [failure to give lesser-included offense 
22

instruction was prejudicial where three days of deliberations and 

request for read-back indicate close case]; People v. Pearch (1991) 

229 Cal.App.3d 1282, 1295 [“Juror questions and requests to 

have testimony reread are indications the deliberations were 

close. [Citations.]”].) As such, it is reasonably probable defendant 

would have achieved a better result if the jury had been properly 

instructed. Therefore, defendant’s conviction must be reversed.
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DISPOSITION

The judgment is reversed, and the matter is remanded for 

retrial.

CERTIFIED FOR PUBLICATION

LAVIN, J.

WE CONCUR:

EDMON, P. J.

KALRA, J.*

 

* Judge of the Los Angeles Superior Court, assigned by the Chief 

Justice pursuant to article VI, section 6 of the California Constitution.