Filed 4/9/20; Certified for Publication 4/23/20 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

REMONDO BELL,

Defendant and Appellant.

B288528

(Los Angeles County

Super. Ct. No. NA101672)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Mark C. Kim, Judge. Affirmed in part and 

remanded with direction.

Janet Gusdorff, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, 

Assistant Attorney General, Steven D. Matthews and Gary A. 

Lieberman, Deputy Attorneys General, for Plaintiff and 

Respondent.

_________________________
2

Remondo Bell was convicted of one count of attempted 

robbery (Pen. Code, §§ 211, 664)1; one count of second degree 

murder (§ 187, subd. (a)); and one count of hit and run driving 

(Veh. Code, § 20001, subds. (a), (b)(1)). The jury found not true 

the allegation that a principal was armed in the commission of 

the attempted robbery. The trial court found true the allegations 

that appellant had served four prior prison terms within the 

meaning of section 667.5, subdivision (b). The trial court 

sentenced appellant to a total term of 21 years to life in prison, 

consisting of 15 years to life for the murder conviction, plus the 

high term of three years for the attempted robbery conviction, 

plus three 1-year terms for the section 667.5 enhancements.2

Appellant appeals from the judgment of conviction, raising 

13 claims of error: 1) he was convicted on legal theories 

subsequently invalidated by Senate Bill No. 1437; 2) there is 

insufficient evidence to support his conviction for the murder of 

his accomplice Ernest Young under the provocative acts doctrine; 

3) the trial court gave an erroneous instruction on the provocative 

acts doctrine; 4) because Young was already dead, insufficient 

evidence supports the murder conviction on the theory that he 

killed Young by driving over him with a van; 5) the trial court 

gave an erroneous instruction on felony murder; 6) the trial court 

erred in failing to instruct the jury on causation; 7) the trial court 

gave an incorrect and incomplete instruction on the defense of 

unconsciousness; 8) the trial court erred in instructing the jury 

on flight; 9) the trial court erred in instructing the jury on the 

1 Further undesignated statutory references are to the Penal 

Code.

2 The court chose to impose only three of the four terms.
3

defense of necessity; 10) the trial court erred in failing to instruct 

the jury on the defense of duress; 11) defense counsel’s failure to 

object to portions of the testimony of the robbery victim, Erik 

Sliskovich, constituted ineffective assistance of counsel; 

12) cumulative error requires reversal; and 13) the section 667.5 

enhancement terms must be stricken. The People contend the 

abstract of judgment must be corrected to remove erroneous 

presentence conduct credit.

We agree the section 667.5, subdivision (b) enhancement 

terms must be stricken and the matter remanded to the trial 

court for resentencing. At that time, the abstract of judgment 

should be corrected. As we explain in more detail below, 

appellant has forfeited some of his substantive claims and others 

lack merit. If there is instructional error, the errors are harmless 

under any standard of review. We affirm the judgment of 

conviction.

BACKGROUND

In 2007 or 2008, Erik Sliskovich met appellant at a cigar 

shop in Long Beach. Sliskovich, a cigar collector, knew appellant

as Mark. In 2011 or 2012 Sliskovich opened a cigar bar with 

some partners. Sliskovich purchased high-end cigars from 

appellant and always paid in cash. The payments ranged from a 

few hundred to several thousand dollars.

On March 26, 2015, appellant texted Sliskovich and asked 

if he wanted to purchase Opus cigars. Initially, Sliskovich did 

not respond. Eventually, they arranged to meet at Sliskovich’s 

property on the morning of March 28, 2015. Sliskovich lived in 

Wilmington and ran a car restoration business from his 

residence. He had numerous surveillance cameras on the 

property.
4

On March 28, 2015, Sliskovich opened the gate to the 

parking area of his property and parked his truck across the 

street. A U-Haul van drove into the parking lot and appellant got 

out of the van. Sliskovich drove his own truck back into the lot, 

parked, and got out. The two men exchanged greetings.

Many of the subsequent events were recorded by the 

surveillance cameras in the parking area of Sliskovich’s business. 

Sliskovich himself had only fragmented memories of the events. 

The videos were played for the jury at trial, and several witnesses 

were asked questions based on events shown in the videos.

The videos show that after exchanging greetings, appellant 

and Sliskovich began walking toward the van. Appellant fell 

behind. He waved at the van three times and three masked men 

got out. One of the men was accomplice Ernest Young. 

Appellant and the masked men moved toward Sliskovich, who 

backed up until he reached the rear of a pick-up truck. The three 

men surrounded and were very close to Sliskovich. A reasonable 

viewer could describe their posture as threatening. The video 

shows one of the masked men reaching out toward Sliskovich’s 

torso. A video shot from a different angle shows appellant 

reaching out toward Sliskovich’s back.

Sliskovich recalled the three masked men getting out of the 

van; he believed Young had a gun. Sliskovich was aware 

appellant was behind him, but he began backing up. Sliskovich

also recalled that one or more of the men said, “Give me the 

money, give it up.” Sliskovich believed that Young lifted his gun 

in his direction. Surveillance video shows an object that 

resembles a gun in Young’s hand, but the jury found not true the 

allegation that a principal was armed with a firearm in the 

commission of the attempted robbery.
5

Sliskovich explained: “I wouldn’t say [Young’s] gun 

provoked me to start shooting. I would say the confluence of 

circumstances of guys with masks, [appellant] behind me . . . it’s 

not just that one thing.” When appellant grabbed Sliskovich, 

Sliskovich believed appellant was “one of the guys that was going 

to kill me.” He explained, “I know [appellant] well enough, I can 

identify him. The other guys were wearing masks. So the way 

the situation is going down, there is no way I am going to survive 

this at all.”

Surveillance video shows Sliskovich shot Young in the left 

hip as the group was at the rear of the pickup. Appellant was 

reaching his arm toward Sliskovich’s back as the shot was fired; 

appellant then grabbed or attempted to grab Sliskovich from 

behind. Sliskovich fired at the two other masked men as they 

backed away. He then turned toward and struggled with 

appellant, shooting him multiple times. Appellant fell to the 

ground and Sliskovich fired at one of the masked men, then at 

Young. A bullet hit Young in the torso and he fell.

According to Sliskovich, everything went gray and became 

a blur for him. He recalled muzzle flashes and a struggle. He 

recalled going inside his place, coming back outside, observing 

that the van was leaving, looking at his hand and noticing his 

own gun had the slide locked back, indicating it was out of 

ammunition. He had been carrying the gun in his waistband. He 

went back inside, got another gun, and returned outside to make 

sure nobody was coming back.

Young lay on the ground a couple of feet behind the van. 

The masked man who had been driving the U-Haul leaned over 

Young and appeared to retrieve something from the ground 

resembling a handgun. He then ran out of the lot and down the 
6

street. The other masked man also ran down the street. 

Appellant managed to get into the driver’s seat of the van. He 

backed up the van, in the process running over Young’s head and 

torso. He then drove forward, running over Young a second time. 

Young’s body was caught underneath the rear of the van. 

Appellant drove the van for 2.5 miles, dragging Young’s body 

along the way.

Sliskovich called 911, his attorney, and a friend who was a 

police detective.

Police stopped the van, which displayed no license plate. 

That morning the van had been reported stolen. There were no 

cigars inside. Appellant exited the van and collapsed. He was 

taken to a nearby hospital. He sustained three gunshot wounds 

to his torso and needed multiple surgeries over the next five days.

Deputy Medical Examiner Ogbonna Chinwah autopsied 

Young. He determined the cause of death was a combination of 

multiple gunshot wounds and blunt force trauma. The gunshot 

wound to Young’s back, which passed through his aorta, was 

fatal. The blunt force trauma to Young’s head and neck was also 

fatal.

At trial, Dr. Chinwah viewed surveillance video of the 

incident. At 4 minutes 7 seconds on the video timestamp, he 

observed Young move as he lay on the ground. This movement is 

clearly visible. The prosecutor asked the doctor if he saw another 

movement in Young’s upper body at the 4 minute 31 second 

mark. The doctor replied, “Well, it appears there was a little bit 

fuzzy.” We have reviewed the video, and it does appear there is 

some sort of movement in Young’s upper body, although it is

fuzzy as the doctor pointed out. Dr. Chinwah testified movement 
7

in the body is “indicative of life.” He agreed if a person is moving, 

“[t]he person is not quite dead yet.”

Appellant offered expert testimony by Dr. Frank Sheridan, 

a forensic pathologist and former chief medical officer of the San 

Bernardino County Coroner’s Office. Dr. Sheridan testified the 

gunshot injury to the aorta was the sole cause of death and 

Young was already dead when the van ran over him. In Dr. 

Sheridan’s opinion, as soon as the aorta was pierced, Young’s 

circulation stopped and he was dead. He characterized the 

movements on the video as “death throws” or spasms, which he 

described as involuntary muscle twitching and nerve discharge 

“as the person is dying.” Dr. Sheridan added there is a term in 

pathology called “agonal” and “it means dying. In the process of 

dying.”

DISCUSSION

The prosecutor sought to hold appellant liable for Young’s 

death under two alternate theories which hinged on when Young 

actually died. The first theory required a finding that Young was 

still alive after being shot and appellant caused or contributed to 

Young’s death by running over him. Three factual scenarios fit 

this theory: (1) appellant ran over Young with the van while the 

robbery was ongoing (first degree felony murder); (2) appellant

ran over Young with awareness of the danger to human life and 

in conscious disregard thereof after the robbery was over (second 

degree murder); (3) appellant ran over Young after the robbery 

was over, failing to stop, but fault was not an issue (hit and run 

causing death).

The second theory required a finding that Young was killed 

by Sliskovich and died before appellant ran over him. Under this 

theory, appellant committed a provocative act during the robbery, 
8

provoking Sliskovich to respond by shooting and killing Young. 

Such a murder should have been first degree murder, because the 

underlying crime was robbery.

The jury found appellant guilty of attempted robbery, 

murder in the second degree, and simple hit and run. The jury 

found appellant not guilty of hit and run causing death. Both 

appellant and respondent believe murder in the second degree 

has to be based on appellant running over a still-living Young 

after the robbery was complete. They correctly reason such a 

verdict would be inconsistent with the not guilty finding on the 

hit and run causing death.

Both parties contend, and we agree, it is not possible to 

determine which theory the jury relied on to convict appellant of 

second degree murder.3 Inconsistent verdicts are allowed to 

stand if they are otherwise supported by substantial evidence. 

(People v. Miranda (2011) 192 Cal.App.4th 398, 405.) “An 

inconsistency may show no more than jury lenity, compromise, or 

mistake, none of which undermines the validity of a verdict.” 

(People v. Lewis (2001) 25 Cal.4th 610, 656.) Appellant 

acknowledges as much, but contends the inconsistency can 

impact an analysis of possible prejudice from trial court errors.

We do not agree. The inconsistency does not hamper our

analysis on appeal. As set forth in more detail below, we find 

sufficient evidence to support both theories of murder. We do not 

3 We note that if the verdicts are based on compromise, 

mistake, or leniency, the jury might have relied on the 

provocative act doctrine, but also agreed it was second degree 

murder for one of those reasons. The last sentence of the 

provocative acts instruction gratuitously told the jury: “Murder 

which is not of the first degree in murder of the second degree.”
9

need to rely on a particular theory of murder to assess appellant’s 

other claims of prejudice.

I. Appellant Must Follow The Procedures In Section 

1170.95 To Raise His Claim The Prosecutor Relied 

On Legal Theories Now Invalidated By Senate Bill 

No. 1437.

Appellant contends two of the prosecution’s legal theories 

have been rendered legally incorrect by the passage of Senate Bill 

No. 1437 during the pendency of this appeal. Appellant contends 

because it cannot be determined on which theory the jury relied,

reversal is required. Senate Bill No. 1437 amended section 189 

to require proof that appellant was the actual killer, aided and 

abetted the murder with the specific intent to kill, or “was a 

major participant in the underlying felony and acted with 

reckless indifference to human life.” (§ 189, subd. (e).) Section 

188 was amended to provide: “Except as stated in subdivision (e) 

of Section 189, in order to be convicted of murder, a principal in a 

crime shall act with malice aforethought. Malice shall not be 

imputed to a person based solely on his or her participation in a 

crime.” (§ 188, subd. (a)(3).)

Senate Bill No. 1437 also added section 1170.95 to the 

Penal Code, which sets out a procedure by which a defendant

currently serving a sentence for murder based on the felony 

murder rule or the natural and probable consequences doctrine 

may petition for relief in the trial court. Appellant acknowledges 

that our colleagues in Division 5 of this District have concluded 

that a defendant whose case was pending when Senate Bill 

No. 1437 became law must use the mechanism of section 1170.95 

to obtain relief. (People v. Martinez (2019) 31 Cal.App.5th 719.)
10

Appellant urges us not to follow Martinez. We agree with 

the reasoning of Martinez and decline appellant’s invitation to 

reject the reasoning of that case and permit him to seek relief in 

this appeal. The legal theories argued by the People were valid 

when argued and when appellant was convicted. Appellant’s

arguments must be addressed in the first instance to the trial 

court. In this regard, we also decline appellant’s invitation to 

stay the appeal until he has filed a petition to obtain relief under 

section1170.95. We find no good cause for such a stay.

II. The Surveillance Video Provides Sufficient Evidence 

To Support A Conviction Under The Provocative Acts

Doctrine.

Appellant contends the jury might have convicted him of 

second degree murder under the provocative acts doctrine, but 

there is insufficient evidence to support such a conviction. He 

claims that “other than Mr. Young’s alleged pointing a gun to 

induce [the victim] to surrender cash, there was no evidence of 

any life-threatening acts.” Appellant contends Young’s act was 

necessary for the robbery and so does not qualify as a provocative 

act. He contends the other circumstances – three men wearing 

masks, joining a fourth unmasked man, surrounding the victim 

and demanding money from him – did not present a high 

probability that the victim would pull a gun and shoot at the 

robbers. Appellant further contends a conviction based on 

insufficient evidence would violate his Fifth Amendment right to 

due process and his Sixth Amendment right a jury trial. We are 

not persuaded.

A. Relevant Law

Under the provocative act doctrine, the perpetrator of a 

crime may be held liable for the killing of an accomplice by the 
11

victim of the crime or a third party. (People v. Gonzalez (2012) 

54 Cal.4th 643, 655.) “A provocative act is one that goes beyond 

what is necessary to accomplish an underlying crime and is 

dangerous to human life because it is highly probable to provoke 

a deadly response.” (Id. at p. 655.) An accomplice may be held 

liable for the provocative act of a surviving accomplice, but is not 

liable where “ “the deceased provocateur accomplice is the sole 

cause of his [own] death.’ ” (People v. Hunter (2017) 

15 Cal.App.5th 163, 171.)

“ ‘When considering a challenge to the sufficiency of the 

evidence to support a conviction, 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 determine ‘whether, after viewing the 

evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of 

the crime beyond a reasonable doubt.’ [Citation.] In so doing, a 

reviewing court ‘presumes in support of the judgment the 

existence of every fact the trier could reasonably deduce from the 

evidence.’ [Citation.] ‘This standard applies whether direct or 

circumstantial evidence is involved.’ [Citation.]” (People v. Avila

(2009) 46 Cal.4th 680, 701.)

B. Substantial Evidence Supports Appellant’s 

Conviction.

The jury found not true the allegation that a principal was 

armed in the commission of the robbery. Thus, there is no 

reasonable possibility that the jury relied on Young pointing a 

gun as the provocative act.
12

Surveillance video does show an object in Young’s hand, 

which resembles a gun, and it is visible as soon as he exits the 

van. As the People pointed out in closing argument, Sliskovich

did not fire at the sight of the object, which he believed was a 

gun. Even when the masked men advanced toward Sliskovich, 

Sliskovich simply backed up. It was only when Sliskovich could 

no longer back up, the men had moved in very close to him, and 

appellant and at least one other robber reached out toward him

that Sliskovich reacted. A jury could find that this crowding and 

grabbing conduct was not necessary to the commission of the 

robbery and instead suggested that Sliskovich was going to be 

physically harmed. A jury could further find the natural 

consequences of such threatening behavior were dangerous to 

human life and appellant and the other robber acted in conscious 

disregard of that danger.

Appellant contends the men’s behavior did not suggest that 

Sliskovich would be killed even if he cooperated in the robbery. 

Not so. Appellant elected not to conceal his identity, and this 

decision, coupled with the men’s behavior, could and did

reasonably suggest to Sliskovich (and any reasonable person in 

his place) that appellant would not let him survive the robbery.

Appellant also contends there was not a high probability 

that Sliskovich would be carrying a concealed handgun during 

the robbery. First, there is no requirement that a victim be 

armed with a firearm. Appellant chose to attack the victim at his 

place of residence/business. On hand at the location were many 

objects likely to be used in the victim’s business and residence, 

like kitchen knives and tools, which also could have been used to 

inflict fatal injuries. Second, appellant’s conduct was threatening 

and highly likely to provoke a defensive response. That 
13

Sliskovich happened to have a gun on him and used it to defend 

himself instead of, say, his fists, does not temper the provocative 

nature of appellant’s conduct. Third, appellant knew Sliskovich’s 

business was cash-based. It is highly probable the proprietor of a 

cash-based business would arm himself during a cash 

transaction, where, as here, Sliskovich was by himself when he 

met up with appellant.

Further, once Sliskovich shot Young the first time, which 

put appellant on notice that Sliskovich was armed, appellant 

nevertheless grabbed Sliskovich and struggled with him for 

control of the gun. This was clearly unnecessary to the robbery

and the natural consequences were dangerous to human life. 

A jury could reasonably find appellant acted with conscious 

disregard of human life. It was only after Sliskovich prevailed in 

this struggle with appellant that he fired the fatal shot at the 

fleeing Young.

“If we determine that a rational trier of fact could have 

found the essential elements of the crime proven beyond a 

reasonable doubt, the due process clause of the United States 

Constitution is satisfied [citation], as is the due process clause of 

article I, section 15, of the California Constitution.” (People v. 

Osband (1996) 13 Cal.4th 622, 690 (Osband).) We have so 

determined, and appellant’s constitutional claims fail.

III. The Provocative Act Instruction Correctly States The 

Law.

Appellant contends CALJIC 8.12, which instructed the jury 

on the provocative act doctrine, was defective in three ways: 1) it 

did not tell the jury that appellant could not be found guilty if the 

only provocative act was committed by Young; 2) it improperly 

permitted the jury to find that appellant’s mere participation in 
14

the attempted robbery was a provocative act; and 3) it omitted 

the foreseeability element. We do not agree.

The instruction states the killing must occur “in response to 

an intentional provocative act by a perpetrator of the crime other 

than the deceased perpetrator” and the People must prove 

“defendant also committed an intentional provocative act.” Thus, 

the instruction directly told the jury it could not convict appellant 

if the only provocative act was committed by Young, the 

decedent.

The instruction also told the jury “the provocative act must 

be an act beyond that necessary simply to commit the crime.” 

Thus, the instruction did not permit the jury to convict appellant 

solely on the basis of his participation in the robbery. Appellant 

contends this sentence is inadequate because the underlying 

crime was “armed robbery” but the crime listed in the instruction 

was merely “attempted robbery.” Appellant claims the jury 

might have concluded the provocative act could be Young’s use of 

a weapon. The instruction required a provocative act by 

appellant and there was no suggestion that he was armed. 

Further, the jury found not true the allegation that a principal in 

the robbery was armed.4 Assuming for the sake of argument the 

instruction should have listed the crimes as robbery with a 

firearm, any error is harmless under any standard of review.

Finally, appellant contends that because the instruction 

used only the term “natural” and not “natural and probable” the 

4 There is no such offense as “armed robbery.” The offense of 

robbery requires only an unlawful taking from the presence of 

another taking by fear or force. (§ 211.) If a robber uses a 

firearm, that is charged as an enhancement to the crime of 

robbery.
15

instruction failed to require the jury to find it was objectively 

foreseeable there was a high probability the act would result in 

someone’s death. Appellant contends the instruction’s use of the 

term “natural consequences” is not normally a problem because 

the instruction contemplates the court will also give CALJIC Nos. 

3.40 and 3.41 on causation, and those two instructions also 

discuss foreseeability. Considering CALJIC No. 8.12 in isolation, 

we see no error in the use of the term “natural consequences.”

In the classic provocative act doctrine, malice is implied

from the provocative act. (People v. Concha (2009) 47 Cal.4th 

653, 662–663 (Concha).) 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.) Thus, CALJIC No. 8.12 

used appropriate terminology.

Court have also used appellant’s preferred formulation, 

stating that malice is implied from “ ‘ “an act that involves a high 

degree of probability that it will result in death.” ’ ” (Concha,

supra, 47 Cal.4th at p. 663, quoting People v. Washington (1965)

62 Cal.2d 777 782.) If appellant preferred this alternate 

phrasing, he should, at a minimum, have requested the 

instruction be modified. He did not. The objection is waived. 

(People v. Young (2005) 34 Cal.4th 1149, 1202 (Young) [failure to 

request clarification forfeits issue on appeal].)

IV. Sufficient Evidence Supports An Inference That 

Young Was Alive When The Van Hit Him, And So 

Supports The Murder Conviction.

Appellant contends the jury might have convicted him of 

second degree murder on the theory that he killed Young when 

he drove the van over him. He contends such a conviction would 
16

not be supported by substantial evidence because it was 

speculative whether Young was still alive at that point. He 

further contends that such a conviction would violate his federal 

constitutional rights to due process and a jury trial. We do not 

agree.

The coroner, Dr. Chinwah, listed two causes of death on the 

autopsy report: the gunshot wounds and the blunt force trauma.

Each would be fatal, meaning each would cause death. When 

questioned about the two causes, Dr. Chinwah testified that 

death was caused by the “combination of multiple gunshot 

wounds and blunt force trauma” from the van. He could not say 

how long death would take from either injury.

Dr. Chinwah was shown a video of the moments before the 

van ran over Young. He agreed that there was movement by 

Young at the timestamp of 4 minutes 7 seconds. The prosecutor 

stopped the video at about 4 minutes 31 seconds and asked Dr. 

Chinwah if he saw any movement. The doctor replied, “Well, it 

appears there was a little bit fuzzy.” We have reviewed this video 

and there appears to be a brief movement by Young at about the 

4 minute 31 second mark. We also observed a similar brief 

movement a few seconds later, at about the 4 minute 33 to 34 

second mark. Dr. Chinwah opined when a person is moving, he is 

“not quite dead yet.” He testified, “People who are alive move.”

Appellant’s expert Dr. Sheridan offered a different opinion 

on the cause and timing of death. When asked about Young's 

movements on the ground, however, Dr. Sheridan described the 

movements as ones which occur “as the person is dying” or “in the 

process of dying.” Thus, Dr. Sheridan implicitly acknowledged 

that Young was not yet dead when he was moving on the ground.
17

The two experts’ testimony plus the video evidence is 

sufficient to support a finding that Young was still alive when the 

van ran over him. Somewhere between four and eight seconds 

elapsed between the last visible movement of Young’s body and 

the van making contact with his head. A jury could reasonably 

decide that Young was still in the process of dying at that point, 

and not yet dead. The reasonableness of such a finding is 

underscored by the fact that only about 42 seconds elapsed in 

total between the gunshot wounds to the aorta and the blunt 

force trauma from the van.5

Because we have determined “that a rational trier of fact 

could have found the essential elements of the crime proven 

beyond a reasonable doubt, the due process clause of the United 

States Constitution is satisfied [citation], as is the due process 

clause of article I, section 15, of the California Constitution.” 

(Osband, supra, 13 Cal.4th at p. 690.)

V. Appellant Has Forfeited His Claim that CALJIC 

No. 8.10 Is Ambiguous.

Appellant contends the trial court erred in giving CALJIC 

No. 8.10, which explained felony murder, because the instruction 

permitted the jury to find him guilty of murder as long it found 

Young was killed by Sliskovich during the commission of the 

attempted robbery, regardless of appellant’s individual role.

Appellant acknowledges the instruction is a correct statement of 

the law when a defendant causes death, but contends it does not 

embody the law where the shooter is a third party.

5 Dr. Sheridan testified the video showed Young being shot 

at 3 minutes 56 seconds and run over at 4 minutes 38 seconds.
18

The jury was given an instruction on the law applicable 

when the killer is a third party. Appellant’s claim in substance is 

that CALJIC No. 8.10 is ambiguous under the circumstances of 

this case. His failure to request a clarification instruction forfeits 

this claim. (Young, supra, 34 Cal.4th at pp. 1202–1203.)

Assuming for the sake of argument the claim is not 

forfeited, we would ask “ ‘whether there is a reasonable likelihood 

that the jury misunderstood and misapplied the instruction.’ ” 

(Young, supra, 34 Cal.4th at p. 1202.) We consider the 

instructions as whole, not parts of an instruction or a single 

instruction. (Ibid.) We also consider the arguments of counsel. 

(Ibid.)

We do not find the instruction ambiguous. The instruction 

states “Every person who unlawfully kills a human being during 

the commission or attempted commission of Robbery is guilty of 

the crime of murder.”6 This language on its face tells the jury 

that the “person who unlawfully kills” is guilty of murder. In 

common understanding, this would refer to the person who 

inflicted the fatal injury. In this context, appellant would be the 

“person who unlawfully kills” if Young was alive when appellant 

drove the van over him.

6 CALJIC 8.10 provides in full: “Defendant is accused in 

Counts 3 of having committed the crime of murder, a violation of 

section 187 of the Penal Code. [¶] Every person who unlawfully 

kills a human being during the commission or attempted 

commission of Robbery is guilty of the crime of murder in 

violation of Penal Code section 187. [¶] In order to prove this 

crime, each of the following elements must be proved: [¶] 

1. A human being was killed; [¶] 2. The killing was unlawful; and 

[¶] 3. The killing occurred during the commission or attempted 

commission of Robbery.”
19

CALJIC No. 8.10 was immediately followed by CALJIC 

No. 8.12, which specifically set forth the detailed alternate 

requirements for finding appellant guilty of murder if Sliskovich, 

the victim of the robbery, killed Young. The jury was instructed 

to “[c]onsider the instructions as a whole and each in light of all 

the others.” The prosecutor argued appellant would be guilty of 

felony murder (CALJIC No. 8.10) or second degree murder if he 

killed Young by running over him with the van. The prosecutor 

also argued the provocative act doctrine applied if the gunshot 

wounds from Sliskovich killed Young. Appellant suggests no 

reason why the jury would misunderstand the combination of 

instructions and argument and then convict appellant of murder 

simply because Sliskovich shot Young during the robbery without 

provocation. We find no reasonable probability or possibility the 

jury understood CALJIC No. 8.10 in the manner suggested by 

appellant. (Young, supra, 34 Cal.4th at p. 1202–1203.)

VI. The Trial Court’s Failure To Instruct The Jury With 

CALJIC Nos. 3.40 And/Or 3.41 Was Not Prejudicial.

The trial court expressed its intention to give CALJIC 

No. 3.41 on causation, but then did not do so, apparently 

inadvertently. The trial court did not find CALJIC No. 3.40 

applicable to the facts of this case.

CALJIC No. 3.40 provides: “[To constitute the crime of [ ] 

there must be in addition to the (result of the crime) an unlawful 

[act] [or] [omission] which was a cause of that (result of the 

crime).] [¶] The criminal law has its own particular way of 

defining cause. A cause of the (result of the crime) is an [act] [or] 

[omission] that sets in motion a chain of events that produces as 

a direct, natural and probable consequence of the [act] [or] 
20

[omission] the (result of the crime) and without which the (result 

of the crime) would not occur.”

CALJIC No. 3.41 provides: “There may be more than one 

cause of the (result of the crime). When the conduct of two or 

more persons contributes concurrently as a cause of the (result of 

the crime), the conduct of each is a cause of the (result of the 

crime) if that conduct was also a substantial factor contributing 

to the result. A cause is concurrent if it was operative at the 

moment of the (result of the crime) and acted with another cause 

to produce the (result of the crime). [¶] [If you find that the 

defendant’s conduct was a cause of (injury, death, etc.) to another 

person, then it is no defense that the conduct of some other 

person [, even the [injured] [deceased] person,] contributed to the 

(injury, death, etc.).]”

When causation is an issue, the court is required to instruct 

the jury on the subject. (People v. Bernhardt (1963) 

222 Cal.App.2d 567, 591.)

Appellant contends that causation was an issue. His

defense was that the blunt force trauma from the van was not the 

sole cause of death of Young. He contended the gunshot wound 

was the sole cause of death. We see no reasonable probability or 

possibility that appellant would have received a more favorable 

outcome if either or both of these instructions had been given.

Both experts testified the gunshot wounds inflicted by 

Sliskovich were fatal. Dr. Chinwah testified the blunt force 

trauma was also fatal. Defense expert Dr. Sheridan did not 

dispute that the blunt force trauma would have caused death in a 

living person; he just disagreed that Young was still alive when 

the van ran over him. Thus, the issues for the jury were

credibility and timing questions about whether Young was still 
21

alive when the van ran over him. If, as Dr. Sheridan opined and 

as appellant argued, Young was dead before the van ran over 

him, the van could not have caused Young’s death. CALJIC Nos. 

3.40 and 3.41 would not have given the jury any useful guidance 

on those issues.

Appellant’s defense was not only that the gunshot wounds 

were the sole cause of death, but also that he was not responsible 

for the gunshots under the provocative act doctrine. As appellant 

points out, the use note to the provocative act instruction 

indicates that “cause” should be defined using CALJIC No 3.40 

and/or No. 3.41. In this context, however, the required causal 

nexus is between the defendant’s provocative act and the killing 

by the third party. As appellant correctly points out, the People 

must prove that “defendant’s conduct proximately caused the 

killing.” (People v. Briscoe (2001) 92 Cal.App.4th 568, 583.) 

As the Briscoe court further explained: “To be considered the 

proximate cause of the victim’s death, the defendant’s act must 

have been a substantial factor contributing to the result, rather 

than insignificant or merely theoretical. [Citations.]

A defendant’s provocative acts must actually provoke a victim 

response resulting in an accomplice’s death.” (Id. at 

pp. 583--584.)

We note appellant’s defense was not that his conduct failed 

to actually provoke Sliskovich. Rather, it was that the natural 

consequences of his conduct were not dangerous to human life, 

and so did not meet the requirements for an “intentional 

provocative act.” This is a foreseeability argument, and we have 

discussed it in Section III, ante. CALJIC No. 3.40 would have 

advised the jury that the consequence must be “natural and 

probable” but as we explained above, the word “probable” is not 
22

necessary. Thus, there is no reasonable probability or possibility 

that appellant would have received a more favorable verdict if 

CALJIC No. 3.40 had been given, or to use appellant’s preferred 

formulation, that the absence of the instruction contributed to 

the verdict against appellant.

Appellant also argues that the absence of causation 

instructions led the jury to find appellant guilty of felony hit and 

run causing death but then due to leniency or the necessity 

defense decided to find him guilty of only the lesser included 

offense of simple hit and run. Appellant’s leniency theory is both 

speculative and nonsensical, and as such it fails. As to the 

necessity defense, we see no relationship between the lack of a 

causation instruction and the necessity instruction. We discuss 

appellant’s claims about the necessity instruction itself below.

VII. The Trial Court’s Instruction On The Defense Of 

Unconsciousness Was Superfluous.

The trial court gave the jury CALJIC No. 12.72, which 

explains the defense of unconsciousness to a charge of violating

Vehicle Code section 20001. Appellant contends the instruction 

was inaccurate and incomplete because it only referred to 

unconsciousness caused by an accident and failed to define the 

term unconscious.

As appellant acknowledges, he did not request an 

instruction on the defense of unconsciousness and did not rely on 

that defense. In fact, it appears that an unconsciousness defense 

would have been inconsistent with his proffered defense of 

necessity.

Appellant contends, correctly, that a trial court has a sua 

sponte duty to give an instruction on unconsciousness when the 

evidence “indicates” unconsciousness. (People v. Newton (1970) 
23

8 Cal.App.3d 359, 377–378.) More generally, “[i]t is well settled 

that a defendant has a right to have the trial court, on its own 

initiative, give a jury instruction on any affirmative defense for 

which the record contains substantial evidence . . . unless the 

defense is inconsistent with the defendant’s theory of the case.”

(People v. Salas (2006) 37 Cal.4th 967, 982.) This duty, if 

applicable, would have warranted a more general instruction on 

unconsciousness, which would have been applicable to the 

murder charges as well. We see no such evidence here.

Appellant was injured at the crime scene. He collapsed

after driving for about 2.5 miles, but there is nothing to suggest 

he was “unconscious” at the crime/accident scene. Appellant 

appeared to act in a conscious manner—starting the van, 

reversing it out of its parking place, driving forward between the 

gates, turning in the direction of one of the other robbers, 

stopping the van near that robber, making some sort of contact 

with the robber, turning again and ending up on the Pacific Coast 

Highway. It is true that an unconscious person may act 

physically without mental awareness of his actions, but this set 

of facts does not “indicate” such a state. It is not reasonable to 

infer unconsciousness from gunshot wounds and a later collapse, 

particularly when that collapse occurred after driving two miles 

from the scene without hitting anything.

Because appellant did not rely on the defense of 

unconsciousness, and the evidence did not in fact support the 

defense, the trial court did not err in failing to define 

unconsciousness or in failing to give a broader or more general 

instruction on that defense. The instruction was superfluous.
24

VIII. The Trial Court Did Not Err In Instructing The Jury 

With CALJIC No. 2.52 On Flight After The 

Commission Of A Crime.

Appellant contends there was no evidence to support an 

instruction on flight after the commission of the crimes, and so 

the trial court erred in instructing the jury on flight with CALJIC 

No. 2.52. He further contends the language of CALJIC No. 2.52 

is improperly broad. There is sufficient evidence to support the 

instruction. Appellant has forfeited his claim that the instruction 

is too broad.

Appellant contends the only reasonable inference from the 

evidence is that he left the crime scene to avoid further attack, 

and possibly to seek medical attention. That is only one inference 

from the evidence. Appellant did not stop and call for help as 

soon as he was safely out of the parking area and out of 

Sliskovich’s sight. This fact presents a second inference. A jury 

could reasonably infer appellant continued to drive after exiting 

the parking area because he was aware he had committed a

crime and did not want to be found near the crime scene.

The trial court instructed the jury on flight using CALJIC 

No. 2.52.7 This instruction is correct, and “defendant’s failure to 

propose any modification to the instruction forfeits the claim of 

instructional error.” (People v. Rangel (2016) 62 Cal.4th 

1192, 1223.)

7 CALJIC No. 2.52 provides: “The flight of a person 

immediately after the commission of a crime, or after he is 

accused of a crime, is not sufficient in itself to establish his guilt, 

but is a fact which, if proved, may be considered by you in the 

light of all other proved facts in deciding whether a defendant is 

guilty or not guilty. The weight to which this circumstance is 

entitled is a matter for you to decide.”
25

IX. Any Error In Instructing on the Defense of Necessity

Was Not Prejudicial.

Appellant contends the trial court erred in including the 

following requirement in CALJIC No. 4.43 on the defense of 

necessity: “The defendant reported to the proper authorities 

immediately after attaining a position of safety from the peril.” 

He contends this requirement applies only to prison escape 

cases.8

No cases have expressly held that the reporting 

requirement is inapplicable to crimes other than prison escape, 

and we see no basis for such a limitation. Necessity is an 

extremely limited defense and “the common law necessity defense 

‘require[d] the individual committing the crime to report to the 

proper authorities immediately after attaining a position of 

8 CALJIC No. 4.43 provides in full: “A person is not guilty of 

[the] crimes of hit and run resulting in death as charged in Count 

2 and Second Degree Murder when he engages in an act, 

otherwise criminal, through necessity. The defendant has the 

burden of proving by a preponderance of the evidence all of the 

facts necessary to establish the elements of this defense, namely: 

[¶] 1. The act charged as criminal was done to prevent a 

significant and imminent evil, namely, a threat of bodily harm to 

oneself or another person; [¶] 2. There was no reasonable legal 

alternative to the commission of the act; [¶] 3. The reasonably 

foreseeable harm likely to be caused by the act was not 

disproportionate to the harm avoided; [¶] 4. The defendant 

entertained a good-faith belief that his act was necessary to 

prevent the greater harm; [¶] 5. That belief was objectively 

reasonable under all the circumstances; and [¶] 6. The defendant 

did not substantially contribute to the creation of the emergency; 

and [¶] 7. The defendant reported to the proper authorities 

immediately after attaining a position of safety from the peril.”
26

safety from the peril.’ ” (People v. Mehaisin (2002) 

101 Cal.App.4th 958, 965 [considering statutory defense of 

necessity to child abduction charge].)

Assuming for the sake of argument the trial court erred in 

including the reporting requirement, there is no reasonable 

probability or possibility that the error contributed to the verdict 

against appellant, or that he would have received a more 

favorable verdict in the absence of the error. As the jury was 

correctly instructed, another requirement of the defense of 

necessity is that the defendant did not substantially contribute to 

the emergency. The jury found appellant guilty of attempted 

robbery, and this finding show the jury believed appellant did 

contribute to the emergency. On these facts and with the jury’s 

other findings, the defense of necessity was not available.

X. The Evidence Did Not Support An Instruction On The 

Defense of Duress.

In a supplemental brief, appellant contends the trial court 

had a sua sponte duty to instruct the jury on the defense of 

duress. We do not agree.

A trial court is required to instruct on duress sua sponte 

when there is substantial evidence supporting the defense and it 

is not inconsistent with the defendant’s theory of the case. 

(People v. Powell (2018) 6 Cal.5th 136, 164.) “Duress is available 

as a defense to defendants who commit a crime ‘under threats or 

menaces sufficient to show that they had reasonable cause to and 

did believe their lives would be endangered if they refused.’

(§ 26, subd. six; People v. Otis (1959) 174 Cal.App.2d 119, 124–

125, [344 P.2d 342].) An essential component of this defense is 

that the defendant be faced with a direct or implied demand that 

he or she commit the charged crime. ‘The defense of duress, 
27

unlike the necessity justification, requires that the threat or 

menace be accompanied by a direct or implied demand that the 

defendant commit the criminal act charged.’ (People v. Steele

(1988) 206 Cal.App.3d 703, 706 [253 Cal.Rptr. 773] [duress not 

available as a defense when inmate escaped in response to 

threats of bodily injury because persons making threats did not 

demand that defendant escape].) In contrast, the necessity 

defense is available when the defendant reasonably believed 

there was a threat of harm and no other means to alleviate the 

harm, and the harm sought to be avoided by the defendant’s 

conduct was greater than the harm sought to be prevented by the 

law defining the charged offense.” (People v. Saavedra (2007) 

156 Cal.App.4th 561, 567.)

Here, there is no evidence that Sliskovich demanded 

appellant commit the crime of hit and run. The defense of duress 

does not apply to the crime of murder (People v. Anderson (2002) 

28 Cal.4th 767, 784), but there is likewise no evidence that 

Sliskovich demanded appellant kill Young. The trial court had 

no duty to instruct on a duress defense.

XI. Appellant Has Not Met His Burden Of Demonstrating 

Ineffective Assistance Of Counsel.

Appellant contends his counsel was ineffective in failing to 

object to Sliskovich’s testimony “narrating key portions of the 

shooting that he admittedly had no consciousness of.” He 

contends that testimony was not based on personal knowledge 

and so Sliskovich should not have been permitted to testify about 

it. (Evid. Code, § 702.) He also contends Sliskovich’s testimony 

amounted to an improper lay opinion. (Evid. Code, §§ 800, 803.)
28

Appellant has the burden of proving ineffective assistance 

of counsel. (People v. Pope (1979) 23 Cal.3d 412, 425.) To

establish such a claim, appellant must show his counsel’s 

performance fell below an objective standard of reasonableness, 

and, but for counsel’s error, a different result would have been 

reasonably probable. (Strickland v. Washington (1984) 

466 U.S. 668, 687–688, 694; People v. Ledesma (1987) 43 Cal.3d 

171, 216–218.) “A reasonable probability is a probability 

sufficient to undermine confidence in the outcome.” (Strickland

v. Washington, at p. 694.) “ ‘ “Because of the difficulties inherent 

in making the evaluation, a court must indulge a strong 

presumption that counsel’s conduct falls within the wide range of 

reasonable professional assistance; that is, the defendant must 

overcome the presumption that, under the circumstances, the 

challenged action ‘might be considered sound trial strategy.’ ” ’ 

[Citations.]” (People v. Thomas (1992) 2 Cal.4th 489, 530–531.)

“When a claim of ineffective assistance is made on direct 

appeal, and the record does not show the reason for counsel’s 

challenged actions or omissions, the conviction must be affirmed 

unless there could be no satisfactory explanation.” (People v. 

Anderson (2001) 25 Cal.4th 543, 569.)

Initially, appellant has forfeited much of this claim by 

failing to make specific arguments related to specific testimony. 

For example, he contends Sliskovich had no memory or 

awareness after he went “gray,” and cites a string of pages in the 

reporter’s transcript. The first cite is to pages 361 through 362. 

At those pages, Sliskovich clearly testifies he has fragments of 

memories about events before during and after the shooting. 

Appellant has not cited and we are aware of any authority 

barring testimony from a witness with only a partial memory of 
29

events, particularly when the witness makes clear that the 

memories are partial.

Appellant also contends Sliskovich answered questions 

based only on his review of the videos and this amounted to an 

improper lay opinion. Appellant has not overcome the 

presumption that counsel’s failure to object was sound trial 

strategy. Appellant does not discuss whether Sliskovich’s 

narration was accurate or not. If it was accurate, defense counsel 

could have made a reasonable tactical decision not to object to 

such accurate testimony on the ground that an objection would 

simply highlight the testimony without gaining anything in 

return. If the testimony was not accurate, defense counsel could 

have made a reasonable tactical decision to wait and draw 

attention to this problem during closing argument, where he 

could highlight any inaccuracy or potential dishonesty. As our 

Supreme Court has repeatedly pointed out, “ ‘[a]n attorney may 

choose not to object for many reasons, and the failure to object 

rarely establishes ineffectiveness of counsel.’ [Citation.]” (People

v. Avena (1996) 13 Cal.4th 394, 442–443.)

In addition, appellant has failed to demonstrate prejudice 

from Sliskovich’s testimony. He contends Sliskovich’s testimony 

“bolster[ed] himself as a victim rather than an aggressor” but the 

“bolstering” part of Sliskovich’s testimony described his emotions, 

thoughts, and reactions as the robbers approached him. That 

testimony was based on personal knowledge and not subject to 

the objections appellant suggests on appeal. His claim of 

ineffective assistance fails.
30

XII. There Is No Cumulative Prejudicial Effect.

Appellant contends the inconsistent verdicts prevent an 

accurate assessment of prejudice and the numerous instructional 

errors and unreliable evidence combined to deprive him of a fair 

trial. We have found substantial evidence to support appellant’s 

convictions under both theories proffered by the prosecution. 

Although we have found the trial court may have made some 

instructional errors, the errors were minor and not prejudicial. 

“The assumed errors are no more compelling when considered 

together.” (People v. Avila (2006) 38 Cal.4th 491, 615.

XIII. Appellant’s Section 667.5 Enhancement Terms Are 

Ordered Stricken And This Matter Is Remanded For 

Resentencing And for Correction Of Conduct Credits.

Appellant contends his three 1-year enhancement terms for 

prior prison terms imposed pursuant to section 667.5, subdivision 

(b) must be stricken in light of Senate Bill No. 1361. Respondent

agrees. We agree as well.

The provisions of Senate Bill No. 136l went into effect on 

January 1, 2020, while this appeal was pending. The revised 

version of section 667.5, subdivision (b) provides for a one-year 

enhancement only if the underlying prior conviction was for a 

sexually violent offense. None of appellant’s prior prison terms 

was for such an offense. Because the amendment to section 667.5 

reduces punishment, it is presumed to apply retroactively. (See 

People v. Superior Court (Lara) (2018) 4 Cal.5th 299, 314.)

Respondent contends the matter must be remanded for 

resentencing to permit the trial court to reconsider whether to 

impose the sentence for the hit and run conviction consecutively. 

We agree that the trial court is entitled to reconsider appellant’s 

entire sentence.
31

Respondent contends the abstract of judgment incorrectly 

awards appellant 1055 days of conduct credit in addition to 1055 

days of actual custody credit. Appellant was not entitled to 

conduct credit and the trial court did not in fact award such 

credit. (See People v. Ly (2001) 89 Cal.App.4th 44, 47 [no 

presentence conduct credit following murder conviction].) 

Because we are remanding this matter for resentencing, 

respondent should seek correction of the abstract in the trial 

court.

DISPOSITION

The section 667.5 enhancement allegations and 

accompanying terms are ordered stricken and the matter is 

remanded for resentencing. We affirm the judgment of conviction 

in all other respects.

STRATTON, J.

We concur:

BIGELOW, P. J.

WILEY, J.
Filed 4/23/20

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

THE PEOPLE,

Plaintiff and Respondent,

v.

REMONDO BELL,

Defendant and Appellant.

B288528

(Los Angeles County

Super. Ct. No. NA101672)

ORDER CERTIFYING 

OPINIOIN FOR PUBLIATION

[NO CHANGE IN JUDGMENT]

THE COURT:

The opinion in the above-entitled matter filed on April 9, 2020, was not 

certified for publication in the Official Reports. For good cause, it now 

appears that the opinion should be published in the Official Reports and it is 

so ordered.

There is no change in the judgment. 

________________________________________________________________________

BIGELOW, P. J. STRATTON, J. WILEY, J.