1

Filed 1/8/13

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

JEREMY L. MILLBROOK,

Defendant and Appellant.

 A134382

 (Alameda County

 Super. Ct. No. H49349)

Jeremy L. Millbrook shot and gravely injured Sione Manoa, a fellow guest at a 

house party, during a heated exchange. In addition to injuring Manoa, the bullet struck 

the hand of Matthew Galvan, a friend of Manoa who was trying to prevent the argument 

from escalating into a physical fight. A jury convicted Millbrook of one count of 

attempted murder of Manoa, one count of assault with a firearm on Manoa, and one count 

of assault with a firearm on Galvan.

1

 It also found true various enhancements that are not 

directly at issue in this appeal.2 The jury was unable, however, to reach a verdict on an 

 

*

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of parts II.C., D., and E.

1 Millbrook was convicted under Penal Code sections 187, subdivision (a), 664, 

subdivision (a) (attempted murder), and 245, subdivision (a)(2) (assault with a firearm). 

Unless otherwise noted, all further statutory references are to the Penal Code.

2

In connection with the attempted murder conviction, the jury found true the 

enhancement allegations of intentional discharge of a firearm causing great bodily injury 

(§ 12022.53, subd. (d)) and infliction of great bodily injury (§ 12022.7, subd. (a)). In 

connection with the assault convictions, the jury found true the enhancement allegations 

of use of a firearm (§ 12022.5, subd. (a)) and infliction of great bodily injury (§ 12022.7, 

subd. (a)).
2

allegation that the attempted murder was willful, deliberate, and premeditated (§ 664, 

subd. (a)), and the trial court accordingly dismissed it.

The trial court sentenced Millbrook to a total term of 35 years and four months to 

life. This sentence included a term of seven years for the attempted murder, a 

consecutive term of 25 years to life because a firearm was used in the attempt, and a term 

of three years and four months for the assault on Galvan and related enhancements. The 

court stayed the sentences for the conviction of assault on Manoa and its related 

enhancements and for the infliction of great bodily injury enhancement related to the 

attempted murder conviction. Millbrook timely appealed.

On appeal, Millbrook argues that (1) the jury should have been instructed on 

attempted voluntary manslaughter based on a sudden quarrel or heat of passion; 

(2) insufficient evidence supported his conviction for attempted murder; (3) testimony 

about a prior uncharged act was improperly admitted into evidence; (4) a juror should 

have been dismissed after he submitted a note questioning defense counsel’s tactics; and 

(5) the cumulative effect of these errors amounted to a denial of due process.

In the published portion of this opinion, we conclude that Millbrook’s conviction 

for attempted murder cannot be sustained because the jury was not instructed on 

attempted voluntary manslaughter based on a sudden quarrel or heat of passion, and we 

conclude that this error was prejudicial. The People may retry Millbrook for attempted 

murder, however, because we also conclude that there was sufficient evidence presented 

to support the charge. If the People elect not to retry Millbrook, we direct that the 

judgment be modified to reflect a conviction for attempted voluntary manslaughter.3 We 

reject Millbrook’s remaining claims and otherwise affirm.

 

3

If the judgment is modified to reflect a conviction for attempted voluntary 

manslaughter, the enhancement allegation of infliction of great bodily injury under 

section 12022.7, subdivision (a) will stand because that statute also applies to attempted 

voluntary manslaughter. However, the enhancement allegation of intentional discharge 

of a firearm causing great bodily injury will not stand because section 12022.53, 

subdivision (d) does not apply to that crime.
3

I.

FACTS

At trial, witnesses gave varying accounts of the shooting and the events leading up 

to it. We begin by discussing some of the uncontroverted facts.

A. The Party.

Fernanda Placencia invited guests to her San Leandro home for a party on 

December 19, 2009, to celebrate her birthday. About 40 people attended the party, the 

majority of whom were her coworkers at a Target store in Hayward.

Manoa, who was 20 years old, and Galvan were friends of Placencia who had 

security jobs at Target. At the time, Manoa was approximately five feet 10 inches tall, 

weighed approximately 235 pounds, and played football for his junior college. Because 

the men worked in security, Placencia had asked them to make sure that the party went 

smoothly and that everyone followed the rules. Galvan did not interpret this as a serious 

request for special assistance, however, and assumed he and Manoa were going to the 

party to have fun like everyone else.

Manoa and Galvan arrived at Placencia’s house between 10 and 10:30 p.m. At 

first, the two men were in the garage, where most of the Target employees had gathered. 

Six to ten of Placencia’s other friends, who were unknown to Manoa and Galvan, were

on the house’s back porch. The two groups were not interacting, but everyone was 

having fun, and the party was going well.

Manoa testified that he rarely drank alcohol, and he recalled having only two beers 

at the party. He could not remember preparing or drinking any mixed drinks. Galvan, 

however, testified that over the course of the night, he and Manoa each drank three to 

four beers and one mixed drink, which Manoa prepared. Manoa acknowledged he was 

intoxicated at the party, but he testified that the alcohol did not change his mood, and he 

was calm for most of the night. Galvan agreed that Manoa did not seem to be unduly 

intoxicated, although in his statement to the police after the shooting Galvan said that 

Manoa had been “drinking heavily.”
4

Meanwhile, Millbrook had also arrived at Placencia’s residence with his girlfriend,

Jennifer Diaz, a close friend of Placencia. Millbrook was 18 years old and attended

community college. At the time, he weighed 160 to 165 pounds and was “very” thin. He 

parked his car, a Porsche Cayenne, in the driveway, and he remained with Diaz in the car

for a while. He testified that he was reluctant to go into the party, and he implied this 

was because a group of men with whom he had an ongoing conflict often hung out near 

Placencia’s house. Susan Cesena, one of Diaz’s friends, joined Millbrook and Diaz while 

they were in the parked car, and the three smoked marijuana. Cesena corroborated 

Millbrook’s testimony that he was reluctant to attend the party. She gave a shot of 

alcohol to Millbrook, but he testified that he did not drink it. Eventually, the women 

convinced Millbrook to go to the party, and the three went into the garage to dance.

Millbrook brought a gun into Placencia’s party and kept it in his waistband. He 

testified that he brought the gun because he did not know who would be at the party, and 

he was scared and wanted to protect himself should any threats arise. After dancing in 

the garage, Millbrook sat on the back porch and smoked more marijuana.4

Placencia did not want the partygoers to go into the house other than to use the 

bathroom. Nevertheless, a group of five or six men—including Cesar Leyva (Cesar), 

who was dating Placencia and worked at Target, and Cesar’s brother, Adrian Leyva

(Adrian)—congregated in the house around the dining-room table. Manoa and Galvan 

went inside to talk to Cesar and joined this group.

Placencia had too much to drink and became sick. For a while, she was in the 

bathroom. Some of her nonwork friends, including Diaz and Cesena, eventually helped 

her to her bedroom.

 

4 Millbrook, who admitted to “fairly regularly” smoking marijuana, estimated that on a 

scale of one to ten, his level of intoxication when he shot Manoa was about a five. 

Millbrook did not believe that the marijuana he smoked was a “major factor” in the 

shooting. In an “abundance of caution,” the trial court instructed the jury on voluntary 

intoxication as it affected the charge of attempted murder.
5

A man who had been on the back porch approached the group gathered around the 

dining-room table and told them that they should not be in the house. The man left after 

Cesar told him that everything was fine, and a woman told him that Placencia knew Cesar 

and that it was all right for the group to be inside. Manoa and Galvan then went into the 

kitchen.

B. Manoa Argues with Diaz.

Diaz went to the kitchen after leaving Placencia’s bedroom, and she and Manoa 

began to argue. Four witnesses testified about the argument: Manoa, Galvan, Cesar, and 

Adrian.

5

 They generally agreed that Manoa and Diaz began swearing and yelling at each 

other and got increasingly angry and loud. According to Manoa, Diaz approached him 

and Galvan and told them, “Everybody needs to get the fuck out of the house.” Manoa 

testified that he felt defensive and upset because he did not think she had a right to tell 

him to leave. He could not recall everything he said to Diaz, but he did remember saying, 

“Fuck you, bitch. Don’t talk to me like that. I’m not going anywhere.”

Manoa and Cesar testified that Manoa and Diaz were standing apart from each 

other during the argument. Galvan, however, testified that Manoa and Diaz “started 

off . . . a couple of feet from each other but ultimately they were in each other’s face[s.]” 

In Galvan’s statement to the police, he characterized Manoa as being “belligerent” during 

this argument and throughout the night. Galvan believed that the argument was serious 

enough that he needed to intervene. He escorted Diaz outside to the back porch while 

another Target coworker tried to calm Manoa. Galvan returned to the kitchen and spoke 

to Manoa, who had an “intense” presence and was “breathing hard” but seemed to be 

calming down. Cesar estimated that the argument between Manoa and Diaz lasted about 

a minute. 

C. Manoa Argues with Bianca Velez.

According to Manoa, about five to ten minutes after his argument with Diaz,

another friend of Placencia, a woman later identified as Bianca Velez, entered the kitchen 

 

5 Diaz did not testify at trial, and Millbrook did not mention this incident in his testimony.
6

and asked him why he had spoken to Diaz that way. She seemed upset that Manoa had 

cursed at Diaz and had called her names, and she told him he needed to leave. Manoa got 

into an argument with Velez, although Manoa testified that it was not as intense as his 

argument with Diaz. Galvan did not remember an argument between Manoa and Velez 

but testified that it could have happened.

Millbrook testified that he was inside the house waiting to use the bathroom while

Manoa and Velez were arguing, and he described the argument as “very intense.” He 

was concerned that the argument would escalate because Manoa was “very aggressive.” 

Millbrook had “never seen anyone so angry . . . in such a little space, [and] it seemed like 

[Manoa] was larger than life.” Millbrook testified that Diaz was trying to stop the fight, 

and she eventually escorted Velez outside.

Millbrook claimed that he thought Manoa was dangerous because of his earlier 

observation of Manoa while Millbrook and Diaz were still on the porch. Millbrook

testified that he saw Manoa, who was standing in the driveway, clutch his waistband and 

say loudly into his phone, “I got my thing. I got my thing,” which Millbrook interpreted 

to mean that he had a gun. Manoa denied making any phone calls during the party or 

saying “I got my th[i]ng.”

Cesena testified that while she was in the bedroom helping Placencia she heard 

Velez arguing with a man, presumably Manoa, whom Velez had asked to leave. 

According to Cesena, the man stated, in apparent references to Placencia and Velez, 

“[W]ake that ho up . . . wake her up. She needs to kick this bitch out.” Cesena testified 

that the man and his group of friends “weren’t being peaceful” and that she had 

previously heard him arguing and seen him exhibiting “obnoxious behavior . . . all over 

the house.” She and her friends wanted the group of men to leave because no one was 

supposed to be in the house and Placencia was too intoxicated to control the party. 

According to Cesena, the men “didn’t want to leave the house” and “essentially were the 

cause of everything.” She never saw Millbrook fight with anyone.

Cesena testified that after overhearing the argument involving Velez, she went

outside to try to end the party before somebody became violent. She remembered Velez 
7

being on the back porch and “telling the guys” that the other group did not want to leave 

the house.

At this point, accounts of what happened diverge significantly.

D. Manoa Argues with Millbrook.

Manoa testified that while he and Velez were arguing, Galvan suggested to Manoa

that they leave the party, and Manoa agreed. They began walking toward the door when 

Millbrook entered the kitchen from the back porch with a few male friends. Manoa 

remembered that Diaz also had returned to the kitchen and was standing near Millbrook. 

Millbrook then asked Manoa, whom he had not previously met, “Why the fuck you talk 

to my girl like that?” Millbrook was “being a boyfriend trying to figure out what was 

going on.” Manoa testified that he explained that Diaz had yelled at him, and they had 

started arguing. Manoa and Millbrook started arguing and swearing at each other, 

becoming increasingly upset, and Diaz also started yelling. Manoa did not remember 

Millbrook saying he had a gun or otherwise threatening him.

Galvan testified that when Millbrook and his friends entered the kitchen, they

were calm. He testified that the situation escalated, however, when no one answered 

Millbrook’s repeated questions about what had happened, and Manoa said, “Hey, this is 

none of your business.” Eventually, Galvan thought the argument had reached a point 

“that there was not going to be a way to de-escalate” it, and he determined he needed “to 

separate the two parties” or else they would start physically fighting. Galvan was facing 

Manoa with his back to Millbrook, and he had his hand on Manoa’s chest as he tried to 

break up the argument and to get Manoa to leave the party. Galvan recalled that Manoa’s 

“shoulders were real tense,” and “he had his arms at his side, and they were balled up in 

fists” throughout the argument. Manoa’s facial expression was “upset and angry.” 

Galvan also testified that Manoa “was trying to stick his head around” Galvan, who is six 

feet four inches tall, so Manoa could still see Millbrook and “continue to argue with 

him.” 

According to Millbrook, after Diaz took Velez outside, he was in the kitchen with 

several people he did not know, including Manoa and Galvan. Manoa was still angry 
8

from the fight with Velez, and Manoa’s friends were “closing in” to find out what had 

happened. Millbrook testified that he felt “surrounded.” Describing his mental state, he 

said, “[I]t’s a small area. Everybody was against me. Everybody was [Manoa’s] friend. 

No one’s going to stick up for me. No one’s going to take my side.”

Millbrook testified that he asked Galvan what was wrong. Even though Millbrook 

had not addressed Manoa, Manoa responded by saying, “I don’t know who the fuck he is. 

Shut the fuck up. Don’t worry about it, and get the fuck out of here.” According to 

Millbrook, Galvan told him that he should leave Manoa alone and that he did not want to 

mess with Manoa. Millbrook recalled that he became “humble” and “real quiet,” afraid 

because he thought Manoa had a gun based on his earlier behavior. He also explained

that he did not try to leave the house at this point because he would have had to walk by 

Manoa and because he was waiting for Diaz to shut down the party.

Millbrook testified that Diaz came back into the kitchen and also asked what had 

happened. He characterized her as being “very calm,” but Manoa was “still in a rage” 

and told her, “Shut the fuck up, bitch. This ain’t none of your business.” According to 

Millbrook, he was angry that Manoa had called Diaz a “bitch,” and he felt that he needed 

to defend her. Millbrook tried to get Diaz to stop arguing with Manoa, pulling her toward 

him.

Millbrook testified that when Manoa did not calm down he began cursing at 

Manoa, and the men exchanged words. Millbrook remembered telling Manoa, “Fuck 

you. You need to get out. This is where the party is being shut down.” He remembered 

Manoa responding, apparently referring to Placencia, “I run this shit. This is my fucking 

house. I run this shit. Tell that bitch to wake up. Tell that bitch to come out. She needs 

to take care of me.” Manoa was moving toward Millbrook, “reaching, long steps, hands 

in the air, gestures” and trying to get around Galvan as Galvan held him back. Other 

people were closing in around Millbrook, laughing and yelling. Millbrook testified that 

he was scared.

In explaining his fear in the moments before the shooting, as well as his reluctance 

to attend the party in the first place, Millbrook described at length his history of being 
9

threatened by a contemporary of his, Michael Pina, and several others, known 

collectively as “the Gun Boys,” whom he often ran into in and around his hometown of 

San Lorenzo. Little evidence was presented to contradict Millbrook’s testimony about

being threatened by Pina and the Gun Boys.

Millbrook testified that he and Pina attended San Lorenzo High School together. 

One day, Pina and three others jumped Millbrook at school and, after that, the conflict 

escalated. Millbrook described one occasion in July 2008 when he was stopped at a light 

while driving and Pina, Bernardo Sandoval, and several others drove by, turned around, 

and pulled up next to him. He thought they were going to carjack him, and he sped away. 

The next day, Millbrook was driving and passed the same car, which was traveling in the 

opposite direction. The car made a U-turn and stopped in front of Millbrook’s car, 

blocking it. Sandoval got out of the car, approached Millbrook, and pulled out a gun. 

Millbrook “hit the gas” and got on the freeway. When he got home, Millbrook noticed 

that the driver’s side door of his car had a bullet hole in it, and he realized Sandoval had 

shot at him. Millbrook reported the incident to the police, but his problems with Pina and 

the Gun Boys continued.

A detective with the Alameda County Sheriff’s Office testified and confirmed that

Millbrook reported the incident. The detective observed and photographed the bullet 

hole in Millbrook’s car. The detective then searched Sandoval’s house, found two Uzis 

and multiple other weapons, and arrested him. Sandoval was eventually prosecuted for 

shooting at Millbrook.

Millbrook testified that he transferred to a different school and sought counseling 

as a result of his problems with Pina and his friends. He stopped going out and 

socializing as much, and he changed his driving routes because he was afraid to run into 

the Gun Boys. Due to the “constant[] . . . harass[ment]” from the group, he also felt he 

had to get a gun to protect himself.

According to Millbrook, his confrontation with Manoa in Placencia’s kitchen 

brought to mind being victimized by Pina and his friends because of the people 

surrounding him, the high tension, and the yelling and shouting.
10

E. The Shooting.

The prosecution’s witnesses who testified about the shooting were Manoa, Galvan, 

Cesar, Adrian, and Sonia Gonzalez, another one of Placencia’s coworkers. Their 

accounts varied in some respects, but they uniformly contradicted Millbrook’s testimony 

that Manoa had a gun.

Manoa testified that very quickly after he began arguing with Millbrook, he saw 

Millbrook’s friends move out of the way. Millbrook “lunged” toward Manoa with his 

arm fully extended and shot him from about two feet away. Manoa denied saying or 

doing “anything threatening” before Millbrook shot him. He also could not remember 

having threatened Diaz. He testified that he had never possessed or shot a gun in his life, 

and he repeatedly denied having had a gun that night or having made any movement with 

his hand to indicate he had a gun before he was shot.

Galvan, who had his back to Millbrook, testified that, within 20 to 25 seconds 

after the argument started, he saw Manoa take a step backward. Manoa then brought his 

hands up to his face, “as if he was going to try to deflect a punch.” Galvan pivoted to get 

out of the way because he thought a punch was being thrown. He felt a “concussive

force” near his face, heard a sound like a balloon popping, and felt something hit his 

hand, which was still close to Manoa’s chest. He did not remember Manoa or Millbrook 

threatening the other, and he did not remember Manoa reaching for his waistband or

saying he had a gun.

Cesar testified that he was surprised when he saw Millbrook pull out a gun and 

shoot Manoa because he did not think the argument had gone that far. He did not see 

Manoa move as if reaching for a gun.

Adrian testified that he saw Millbrook trying to calm Diaz. According to Adrian, 

Manoa told Millbrook, “You better check your bitch,” meaning that he should quiet Diaz. 

Manoa testified that he could not remember saying this to Millbrook, although it was 

possible he had. Adrian recalled that Millbrook responded that Manoa should not talk to 

his girlfriend like that. Millbrook then reached for his gun, cocked it, and pointed his arm 

straight out and fired the gun toward Manoa. As was Cesar, Adrian was surprised when 
11

the gun came out because he did not believe that Manoa and Millbrook were on the verge 

of a physical fight. Adrian never saw Manoa with a gun and never heard him say 

anything to indicate he had one. He also never saw Millbrook “lunge” with the gun or 

move toward Manoa, and he did not hear Millbrook threaten to kill Manoa.

Gonzalez testified that she heard Manoa say to Diaz, “Shut up, I’m going to get 

somebody to beat your bitch-ass up.” According to Gonzalez, Millbrook then pulled out 

his gun, pointed it with his arm straight out, and fired it. She did not remember seeing 

Millbrook cock the gun or lunge at Manoa, and she did not remember Millbrook saying

anything before firing. She was also surprised when she saw the gun, because it was 

“[j]ust a regular argument.” She did not see Manoa make any aggressive movements or 

indicate that he had a gun. She did not remember whether Manoa had clenched fists.

Millbrook was the only defense witness to testify about the shooting.6 He testified

that Manoa was about 10 to 12 feet away from him. About 15 to 25 seconds after the 

argument started, Millbrook focused on Manoa’s hands and saw him “start[ing] to clench 

one fist and essentially grasp something with the other.” Although Millbrook could not 

see Manoa well because Galvan was in the way, it looked to Millbrook as if Manoa was 

grabbing a gun and preparing to shoot him or Diaz, who was slightly behind Millbrook. 

Millbrook testified that he saw Manoa pull out a gun and Galvan step to the side. 

Millbrook then saw Manoa point a nickel-plated, “fairly big” semiautomatic under 

Galvan’s shoulder with his arm fully extended.

Millbrook testified that he became scared, and he panicked. He felt “a rush of 

anxiety and adrenaline” and pulled out his gun. He claimed that as he pulled out his gun 

from his waistband the slide caught in his pants, cocking the gun. He testified that he 

instinctively raised the gun, intentionally aimed it at Manoa, closed his eyes, and 

purposely shot it once. He opened his eyes and saw Manoa falling backward, still 

holding a gun. According to Millbrook, he did not cock or shoot his gun again.

 

6 Cesena, the only other defense witness who attended the party, did not see the shooting.
12

Millbrook testified that as he was pulling out the gun, he was “trying to stop” 

Manoa. “I was not trying to feel what [getting shot] felt like. I was not trying to be a 

victim again.” He testified, however, that it was not his intent to kill Manoa. Millbrook 

testified that he loved Diaz and did not like it when other people treated her 

disrespectfully, but he denied shooting Manoa because he called Diaz a “bitch” or 

because he did not show her respect.

F. The Aftermath.

After the gunshot, everyone in the room “scatter[ed]” out of the kitchen. Manoa 

and Galvan ran out the back door. A friend of Manoa took him to the hospital. Galvan 

drove himself to the hospital.

Millbrook ran out the front of the house to his car. As he and Diaz were getting in 

the car, Diaz yelled, “Why did you do that?” Cesar also ran outside and saw a Porsche 

Cayenne drive out of Placencia’s driveway, hitting another car on the way.

The police recovered one cartridge case from a fired bullet and one unfired bullet 

and cartridge case in Placencia’s kitchen. Based on information from Diaz, they also 

recovered a gun, bullets, and a magazine from a roadside in Castro Valley. There is no 

indication in the record that a gun matching Millbrook’s description of Manoa’s weapon 

was ever recovered.

A ballistics expert testified that if a live bullet was in the chamber of a gun like 

Millbrook’s and the slide was pulled back, the bullet would eject without firing. If the 

gun was fired, a cartridge case would fall out and another bullet would be chambered. In 

the former case, it would require “a certain amount of force” to pull back the slide in 

order for a chambered round to fall out, although the expert could not tell whether 

Millbrook’s gun had any malfunctions that might make accidental cocking easier. Thus, 

the evidence recovered from Placencia’s kitchen and the ballistics expert’s testimony 

tended to suggest that Millbrook’s gun had a bullet in the chamber when he pulled it out, 

that it was unlikely that the slide went back accidentally when the gun was pulled out, 

and that Millbrook shot only one bullet.
13

Manoa was shot in the chest, and the bullet lodged in his spine. He was in an

induced coma for almost a week and stayed in the hospital four weeks after that, losing 

about 50 pounds.

The bullet hit Galvan on the middle knuckle of his right hand and traveled through 

it, shattering the joint. He wore a cast for several weeks, and he was able to recover most 

of his range of motion after going through physical therapy.

Millbrook and Diaz drove straight to Reno, where Millbrook was soon 

apprehended. He admitted that he and Diaz disposed of the gun on their way to Reno and 

that he lied to the police after his arrest by telling them that he was never at Placencia’s 

party.

II.

DISCUSSION

A. Millbrook’s Conviction for Attempted Murder Cannot Be Sustained Because the 

Jury Was Not Instructed on Attempted Voluntary Manslaughter Upon a Sudden 

Quarrel or Heat of Passion.

At trial, Millbrook’s defense centered on his theory that he had shot Manoa in selfdefense. The jury was properly instructed that Millbrook was not guilty of attempted 

murder if he acted reasonably in self-defense and that he was alternatively guilty of the 

lesser included offense of attempted voluntary manslaughter if he acted unreasonably in 

self-defense (imperfect self-defense). (See People v. Humphrey (1996) 13 Cal.4th 1073, 

1082.) But Millbrook did not ask for, and the trial court did not on its own initiative give, 

an instruction that he was guilty of attempted voluntary manslaughter if he acted “upon a 

sudden quarrel or heat of passion” (a heat-of-passion instruction). (§ 192, subd. (a).) On 

appeal, he argues that his conviction for attempted murder must be reversed because the 

jury was not instructed on this form of attempted voluntary manslaughter. We agree.7

 

7 Because we conclude that the trial court had a duty to give a heat-of-passion instruction, 

we do not consider Millbrook’s alternative argument that his attorney’s failure to request 

such an instruction constituted ineffective assistance of counsel.
14

1. The elements of attempted murder and attempted voluntary 

manslaughter are well-established.

We begin by reviewing the elements of attempted murder and attempted voluntary 

manslaughter. “Murder is the unlawful killing of a human being . . . with malice 

aforethought.” (§ 187, subd. (a).) “An attempt to commit a crime consists of two 

elements: a specific intent to commit the crime, and a direct but ineffectual act done 

toward its commission.” (§ 21a.) Thus, “ ‘[a]ttempted murder requires the specific intent 

to kill and the commission of a direct act toward accomplishing the intended killing.’ ” 

(People v. Houston (2012) 54 Cal.4th 1186, 1217.)

When a person attempts to kill while acting upon a sudden quarrel or in the heat of 

passion—even if exercising a sufficient “measure of thought . . . to form . . . an intent to 

kill”—he or she acts with “a mental state that precludes the formation of malice.” 

(People v. Beltran (2013) 56 Cal.4th 935, 942 (Beltran).) A person acts upon a sudden 

quarrel or in the heat of passion if his or her reason “ ‘ “was obscured or disturbed by 

passion to such an extent as would cause the ordinarily reasonable person of average 

disposition to act rashly and without deliberation or reflection, and from such passion 

rather than from judgment.” ’ ” (Ibid.) Thus, the offense of attempted murder is reduced 

to the lesser included offense of attempted voluntary manslaughter when the defendant 

acted upon a sudden quarrel or in the heat of passion. (People v. Williams (1988) 199 

Cal.App.3d 469, 475; accord People v. Gutierrez (2003) 112 Cal.App.4th 704, 708-709.)

2. The trial court had a duty under California law to give sua 

sponte a heat-of-passion instruction.

Trial courts have the duty under California law “to instruct fully on all lesser 

necessarily included offenses supported by the evidence.” (People v. Breverman (1998) 

19 Cal.4th 142, 148-149 (Breverman).) “[I]n a murder prosecution,” a court’s duty to 

instruct sua sponte “includes the obligation to instruct on every supportable theory of the 

lesser included offense of voluntary manslaughter, not merely the theory or theories 

which have the strongest evidentiary support, or on which the defendant has openly 

relied.” (Id. at p. 149; see People v. Szadziewicz (2008) 161 Cal.App.4th 823, 833-834 
15

[applying this principle to prosecution for attempted murder].) We review de novo a trial 

court’s failure to instruct on a lesser included offense (People v. Waidla (2000) 

22 Cal.4th 690, 733), and in doing so we view the evidence in the light most favorable to 

the defendant. (People v. Turk (2008) 164 Cal.App.4th 1361, 1368, fn. 5.)

For the duty to instruct on a lesser included offense to arise, there must be 

“ ‘substantial evidence’ [citations], ‘ “which, if accepted . . ., would absolve [the] 

defendant from guilt of the greater offense” [citation] but not the lesser.’ ” (People v. 

Waidla, supra, 22 Cal.4th at p. 733.) Evidence is substantial if “a reasonable jury could 

find [it] persuasive.” (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8 (Barton).) “In 

deciding whether there is substantial evidence of a lesser offense, courts should not 

evaluate the credibility of witnesses, a task for the jury.” (Breverman, supra, 19 Cal.4th 

at p. 162.) “[S]ubstantial evidence to support instructions on a lesser included offense 

may exist even in the face of inconsistencies presented by the defense itself” (id. at 

pp. 162-163) and “even when as a matter of trial tactics a defendant . . . fails to request 

the instruction.”8 (Id. at p. 154; see also Barton, at pp. 196, 203 [a “jury’s truthascertainment function” is impaired unless “the opportunity to decide whether the 

defendant is guilty of a lesser included offense established by the evidence” is given, and 

“ ‘[t]he jury should not be constrained by the fact that the prosecution and defense have 

chosen to focus on certain theories’ ”].) In particular, even if the defendant testifies to a 

mind state inconsistent with the theory of a lesser included offense, substantial evidence 

may still support an instruction on that offense. (Breverman, at p. 163, fn. 10.)

Turning to the case before us, we first observe that there is nothing in the jury’s 

verdict that is inconsistent with the need for a heat-of-passion instruction. If the jury had 

returned a verdict on the allegation that Millbrook’s attempted murder of Manoa was 

 

8

If, as a matter of tactics, a “defendant persuades a trial court not to instruct on a lesser 

included offense supported by the evidence . . ., the doctrine of invited error bars the 

defendant from challenging on appeal the trial court’s failure to give the instruction.” 

(Barton, supra, 12 Cal.4th at p. 198, italics added.) This doctrine is inapplicable here 

because there is no indication in the record that Millbrook objected to a heat-of-passion 

instruction being given.
16

willful, premeditated, and deliberate, the finding would have been “manifestly 

inconsistent with having acted under the heat of passion.” (People v. Wharton (1991) 

53 Cal.3d 522, 572.) But the jury was unable to return such a verdict. And although the 

jury must have found that Millbrook intended to kill since such a finding is a prerequisite 

for a conviction of attempted murder, the finding does not rule out the possibility that 

Millbrook acted upon a sudden quarrel or in the heat of passion. (See Beltran, supra, 

56 Cal.4th at p. 942.) This possibility was similarly not ruled out by the jury’s rejection 

of the two self-defense theories upon which it was instructed—that Millbrook was not 

guilty of attempted murder because he acted in reasonable self-defense and, in the 

alternative, that Millbrook was guilty only of attempted voluntary manslaughter because 

he acted in imperfect self-defense. Indeed, “ ‘[i]n the usual case,’ ” a heat-of-passion 

instruction “ ‘supplements the self-defense instruction.’ ” (People v. St. Martin (1970) 

1 Cal.3d 524, 531; see, e.g., Breverman, supra, 19 Cal.4th at pp. 148, 162-164 [error not 

to give heat-of-passion instruction where jury instructed on both theories of self-defense]; 

Barton, supra, 12 Cal.4th at pp. 202-203 [sufficient evidence supported giving both heatof-passion and imperfect-self-defense instructions].)

We recognize that a heat-of-passion instruction is not always warranted “where 

the same facts” supporting it “would give rise to a finding of reasonable self-defense.” 

(People v. Wickersham (1982) 32 Cal.3d 307, 327-328.) But this is not such a case. 

Millbrook’s testimony that Manoa pulled out a gun and that he thought Manoa was going 

to shoot him would have supported a finding of self-defense. Even if the jury did not 

believe that Millbrook shot in self-defense, however, it still could have concluded that he 

shot in the heat of passion arising from Manoa’s treatment of him or Diaz or from a fear 

that did not rise to the level of fear required to establish self-defense. (See People v. 

Mitchell (1939) 14 Cal.2d 237, 252-253 [“[h]eat of passion may be produced by fear as 

well as by rage,” and “[p]rovocation sufficient to produce a heat of passion . . . may, 

under slightly varied circumstances, justify a person in killing in self-defense”].)
17

Having concluded that nothing in the jury’s verdict is inconsistent with the need 

for a heat-of-passion instruction,9 we next consider whether there was substantial 

evidence, viewed in the light most favorable to Millbrook, to support such an instruction. 

We conclude there was.

Attempted manslaughter based on a sudden quarrel or heat of passion has both a 

subjective and an objective component (see People v. Moye (2009) 47 Cal.4th 537, 549 

(Moye)), and we consider each in turn. To satisfy the subjective component, the 

defendant must have attempted to kill “while under ‘the actual influence of a strong 

passion’ induced by [adequate] provocation.” (Id. at p. 550, italics added.) As a result, 

“[i]f sufficient time has elapsed for one’s passions to ‘cool off’ and for judgment to be 

restored,” malice is not negated. (Beltran, supra, 56 Cal.4th at p. 951.) “No specific type 

of provocation is required, and ‘the passion aroused need not be anger or rage, but can be 

any “ ‘ “[v]iolent, intense, high-wrought or enthusiastic emotion” ’ ” [citations] other 

than revenge.’ ” (People v. Lasko (2000) 23 Cal.4th 101, 108.)

Millbrook testified that when he shot Manoa he was “scared” and “panicking” and 

“was not trying to be a victim again.” By rejecting the two forms of self-defense upon 

which it was instructed, the jury concluded that Millbrook did not have an actual fear that 

he was in imminent danger of death or great bodily injury. (See People v. Humphrey, 

supra, 13 Cal.4th at p. 1082.) But substantial evidence was presented upon which the

jury could nonetheless have found that Millbrook was acting under the actual influence of 

extreme emotion. This evidence included testimony that Manoa had acted belligerently 

throughout the party and had engaged in intense arguments with Diaz and Velez; 

testimony that Manoa was the one who escalated the fight with Millbrook; testimony that 

Manoa, who was much bigger than Millbrook, had clenched his fists and “lunged” at 

Millbrook before being shot; testimony that Galvan intervened in the argument and had 

his hand on Manoa to prevent a physical altercation; testimony that Manoa had 

 

9 Our later conclusion that Millbrook’s conviction for attempted murder is supported by 

sufficient evidence does not render harmless the failure to give a heat-of-passion 

instruction. (Breverman, supra, 19 Cal.4th at p. 178, fn. 25.)
18

threatened to get someone to beat Diaz and told Millbrook to “check your bitch” 

immediately before the shooting; testimony that Millbrook was angered by Manoa’s 

treatment of Diaz; and testimony that Millbrook had been threatened in violent incidents 

in the past and was intimidated by Manoa’s size and by being surrounded by Manoa’s 

friends. Although Millbrook denied shooting Manoa because Manoa disrespected Diaz, 

the jury was entitled to disbelieve Millbrook’s reason for shooting and to rely on the 

other evidence we have identified to find that Millbrook shot spontaneously and under 

the influence of extreme emotion. (Breverman, supra, 19 Cal.4th at p. 163, fn. 10; see, 

e.g., People v. Logan (1917) 175 Cal. 45, 46-47, 50 [defendant entitled to heat-of-passion 

instruction where evidence demonstrated victim’s “physical superiority” and defendant’s 

“fear that he was about to be subjected to a second humiliating beating” at victim’s 

hands]; People v. Anderson (2006) 141 Cal.App.4th 430, 443, 446-447 [evidence that 

“fatal chokehold was motivated by rage at the victim’s unprovoked attack” sufficient to 

require heat-of-passion instruction].)

There was also substantial evidence presented to support the objective component 

of heat of passion. To satisfy this component, “ ‘ “the accused’s heat of passion must be 

due to ‘sufficient provocation.’ ” ’ ” (Moye, supra, 47 Cal.4th at p. 549.) The victim 

must cause the provocation or the defendant must reasonably believe that the victim 

caused it. (Id. at pp. 549-550.) “The provocative conduct by the victim may be physical 

or verbal, but the conduct must be sufficiently provocative that it would cause an 

ordinary person of average disposition to act rashly or without due deliberation and 

reflection.” (Id. at p. 550; see also Beltran, supra, 56 Cal.4th at p. 949 [“the provocation 

must be one that would cause an emotion so intense that an ordinary person would simply 

react, without reflection,” original italics].) As our Supreme Court recently clarified, in 

determining whether the conduct was adequately provocative, the question is whether it 

would cause an ordinary person of average disposition “to react from passion and not 

from judgment,” not whether it “would cause an ordinary person of average disposition to 

kill” (or attempt to kill). (Beltran, at pp. 938-939, original italics.)
19

“Generally, it is a question of fact for the jury whether the circumstances were 

sufficient to arouse the passions of the ordinarily reasonable person.” (People v. 

Fenenbock (1996) 46 Cal.App.4th 1688, 1705; see also Beltran, supra, 56 Cal.4th at 

pp. 950-951.) While it is true that a court may decide the issue of adequate provocation if 

“the provocation is so slight . . . that reasonable jurors could not differ on the issue of 

adequacy” (Fenenbock, at p. 1705), the provocation shown here is not so slight that we 

can conclude, as a matter of law, that a reasonable jury would have been unable to find 

that Millbrook acted upon a sudden quarrel or in the heat of passion.

The jury could have found adequate provocation in several ways. To begin with, 

the jury could have found it based on the evidence presented of Manoa’s treatment of 

Diaz. Several witnesses testified that Diaz and Manoa had a serious argument, which 

Millbrook likely knew about. In addition, two witnesses testified that Manoa said 

something insulting about or to Diaz immediately before being shot: “You better check 

your bitch,” according to Adrian, and “Shut up, I’m going to get somebody to beat your 

bitch-ass up,” according to Gonzalez.

The jury also could have found adequate provocation based on Manoa’s other 

belligerent and threatening behavior. As mentioned above, this evidence included 

testimony that Manoa had been aggressive throughout the night, including engaging in 

shouting matches with Velez in addition to Diaz; testimony that Manoa was the one who 

escalated the fight with Millbrook; testimony that Manoa had his hands clenched and 

“lunged” at Millbrook immediately before being shot; and testimony that Galvan 

intervened right before the shooting with his hand on Manoa to prevent an escalation of 

the argument. In short, evidence of Manoa’s treatment of Diaz and of Manoa’s menacing 

behavior was sufficient to permit a jury to conclude that a reasonable person in 

Millbrook’s position could have acted in the heat of passion.

Decisions in cases with similar facts support our conclusion that sufficient 

evidence of provocation was presented. In Barton, the defendant was convicted of 

voluntary manslaughter and argued on appeal that the trial court erred by giving a heatof-passion instruction over his objection. (Barton, supra, 12 Cal.4th at pp. 190, 201.) 
20

Our Supreme Court disagreed, concluding that “[t]he record contain[ed] substantial 

evidence, some of it offered by the prosecution and some by the defense,” to support a 

heat-of-passion instruction. (Id. at p. 202.) That evidence showed that shortly before the 

defendant shot the victim, the defendant’s daughter had told him that the victim tried to 

run her car off the road and had spat on her car window. (Ibid.) The defendant and his 

daughter then confronted the victim, at which point the victim called the daughter a 

“ ‘bitch’ ” and acted “ ‘berserk.’ ” (Ibid.) The defendant and the victim then confronted 

each other, with the victim assuming a “ ‘fighting stance.’ ” (Ibid.) After the defendant 

asked his daughter to call the police, the victim tried to leave in his car and the defendant 

asked him where he was going. (Ibid.) The victim “replied, ‘none of your fucking 

business,’ and taunted [the] defendant by saying, ‘Do you think you can keep me here?’ ” 

(Ibid.) The defendant began “[s]creaming and swearing” and threatened to shoot if the 

victim did not drop his knife (although the evidence conflicted as to whether the victim 

actually had one). (Ibid.) Thus, as here, testimony was presented that a person close to 

the defendant was threatened or disrespected, the defendant and the victim argued, and 

the defendant felt threatened when he shot the victim.

In a recent decision from this district also involving a fight that led to a shooting, 

our colleagues in Division Three reversed a conviction for second degree murder because 

the jury was not given a heat-of-passion instruction. (People v. Thomas (2013) 

218 Cal.App.4th 630, 633, review den. Oct. 30, 2013, S213262) (Thomas).) In Thomas, 

the defendant engaged in a “ ‘pretty heated’ ” argument with the victim and the victim’s 

friends after the defendant blocked in the friends’ car. (Id. at pp. 634-635, 645.) 

Witnesses agreed that at least one of the victim’s friends punched and beat the defendant. 

(Id. at pp. 635, 639, 645.) Testimony was presented that the defendant then went to his 

car and retrieved a gun, that the defendant seemed angry, and that the defendant’s father 

tried to calm him. (Id. at p. 645.) According to the defendant, the victim then 

approached and “lunged at him,” making the defendant believe the victim was trying to 

get the defendant’s gun. (Ibid.) The defendant testified that “[h]e fired because he was 

afraid, nervous and not thinking clearly.” (Ibid.)
21

As in our case, prosecution and defense witnesses in Thomas agreed that a sudden 

quarrel preceded the shooting, and evidence was presented that the defendant felt both 

angered and threatened by the victim. But in our case it was the victim himself who was 

belligerent and threatening rather than the victim’s friends. And whereas the defendant in 

Thomas, supra, 218 Cal.App.4th 630 had some time to “ ‘cool off’ ” while retrieving his 

gun and speaking with his father (see Beltran, supra, 56 Cal.4th at p. 951), Millbrook 

shot Manoa in the midst of their argument. Thus, the evidence of provocation in the case 

before us is more compelling than it was in Thomas.

The circumstances here—Manoa’s disrespectful treatment of Diaz, the sudden 

quarrel between him and Millbrook, and Manoa’s threatening behavior before and during 

the argument—also distinguish our case from decisions holding that insults alone are 

insufficient to constitute adequate provocation. (See, e.g., People v. Enraca (2012) 

53 Cal.4th 735, 743-744, 759 [gang-related insults]; People v. Avila (2009) 46 Cal.4th 

680, 706 [same]; People v. Manriquez (2005) 37 Cal.4th 547, 585-586 [victim repeatedly 

called defendant a “ ‘mother fucker’ ” and taunted him to use his weapon]; People v. 

Lucas (1997) 55 Cal.App.4th 721, 739-740 [smirking, taunting, and name-calling]; but 

see People v. McCowan (1986) 182 Cal.App.3d 1, 15 [heat-of-passion instruction 

required where defendant confessed that “he became enraged” when his ex-wife “made 

an obscene gesture at him” as he drove by her home, prompting him to shoot her].) 

While our conclusion that a jury could have found adequate provocation might be 

different if Manoa had merely cursed or insulted Millbrook, various witnesses’ testimony 

about Manoa’s statements to and about Diaz and his threatening behavior throughout the 

night and immediately before the shooting were sufficient under California law to require 

the trial court to give a heat-of-passion instruction sua sponte.

3. Whether trial courts ever have a duty under the federal 

Constitution to give sua sponte a heat-of-passion instruction 

in a noncapital case is unresolved.

Millbrook contends that the failure to instruct the jury on the heat-of-passion form 

of attempted voluntary manslaughter violated his federal constitutional rights. He argues 
22

that, as a result, the federal constitutional standard for assessing prejudice applies, 

requiring reversal unless it appears beyond a reasonable doubt that the error did not 

contribute to the verdict. (Chapman v. California (1967) 386 U.S. 18, 24 (Chapman).) 

This federal standard contrasts with the less-stringent standard for assessing prejudice

from a state constitutional error, which requires reversal only if there is a reasonable 

probability that the error contributed to the verdict. (People v. Watson (1956) 46 Cal.2d 

818, 836 (Watson).)

Whether the federal standard applies in assessing prejudice when a trial court fails 

to give sua sponte a heat-of-passion instruction in a noncapital murder case is unresolved. 

Although we ultimately conclude that Millbrook was prejudiced under the state standard, 

we take a moment to consider the federal constitutional issues because the case authority 

on this important question is inconclusive and because, as we discuss below, our 

Supreme Court in Thomas explicitly directed the Court of Appeal to consider the federal 

constitutional issues. (People v. Thomas (Aug. 29, 2012, S203557).)

We begin with Breverman. In that case, our Supreme Court applied the Watson

standard (46 Cal.2d 818) to assess the trial court’s failure to give sua sponte a heat-ofpassion instruction in a noncapital case. (Breverman, supra, 19 Cal.4th at pp. 148-149, 

165.) In broad language, the court “reject[ed] any implication that the alleged error at 

issue in this case—the failure to instruct sua sponte on an uncharged lesser included 

offense, or any aspect thereof—is one which arises under the United States Constitution.” 

(Id. at p. 165.) It observed that “the United States Supreme Court has expressly refrained 

from recognizing a federal constitutional right to instructions on lesser included offenses 

in noncapital cases” in two cases in which the defendants had requested such instructions. 

(Id. at pp. 165-166 & fn. 14.) Our Supreme Court explained that in one of those cases, 

Beck v. Alabama (1980) 447 U.S. 625 (Beck), the United States Supreme Court 

“acknowledged that in particular circumstances, the denial of instructions on lesser 

included offenses in a capital case would violate the federal Constitution.” (Breverman, 

supra, 19 Cal.4th at p. 166, original italics.) But our Supreme Court pointed out that 

subsequent decisions limited Beck and “suggest[ed the United States Supreme Court’s] 
23

reluctance to formulate any general constitutional right to instructions on lesser offenses.” 

(Breverman, at p. 166.) Our Supreme Court concluded that “the high court’s decisions 

leave substantial doubt that the federal Constitution confers any right to lesser included 

offense instructions in noncapital cases” and “provide no basis whatever for a conclusion 

that the federal charter would require such instructions, as does California, on the court’s 

own motion.”10 (Id. at p. 168, original italics.) Accordingly, the Breverman court

“affirm[ed] that the rule requiring sua sponte instructions on all lesser necessarily 

included offenses supported by the evidence derives exclusively from California law.” 

(Id. at pp. 168-169.)

This discussion would seem to have resolved the question whether a failure to give 

sua sponte a heat-of-passion instruction implicates the federal Constitution. But another 

portion of Breverman makes clear that it did not. In a footnote, the court expressly

declined to decide whether such a failure to instruct could constitute a federal 

constitutional error on the theory that it presented to the jury an incomplete definition of 

malice, which is an element of the charge of murder, and thus relieved the prosecution’s 

burden of proving all elements of an offense beyond a reasonable doubt. (Breverman, 

supra, 19 Cal.4th at p. 170, fn. 19 [observing that “[t]he issues presented by such a claim 

must properly await a case in which they have been clearly raised and fully briefed”]; id. 

at pp. 189-190, dis. opn. of Kennard, J. [arguing that the instructional error violated the 

federal Constitution for this reason].) Our Supreme Court has subsequently reaffirmed 

that this issue remains open. (See Moye, supra, 47 Cal.4th at p. 558, fn. 5 [declining to 

decide the issue because the defendant had not properly preserved the claim of federal 

constitutional error]; see also People v. Lasko, supra, 23 Cal.4th at p. 113 [explaining that 

 

10 Beck explicitly declined to determine “whether the Due Process Clause would require 

the giving of such instructions [on lesser included offenses] in a noncapital case.” (Beck, 

supra, 447 U.S. at p. 638, fn. 14.) The circuits have split on whether to extend Beck to 

noncapital cases. (Solis v. Garcia (9th Cir. 2000) 219 F.3d 922, 928-929 [listing cases].)
24

Breverman “declined to consider whether [the] error violated the federal Constitution by 

giving the jury an incomplete definition of malice”].)11

In Thomas, the Court of Appeal ultimately concluded in a published opinion that a 

trial court’s failure to give a requested heat-of-passion instruction in a noncapital case 

amounted to a federal constitutional error subject to review under Chapman, supra, 

386 U.S. 18. (Thomas, supra, 218 Cal.App.4th at pp. 642-644.) In doing so, the court 

relied on Mullaney v. Wilbur (1975) 421 U.S. 684, 704 (Mullaney), in which the United 

States Supreme Court held that federal due process “requires the prosecution to prove 

beyond a reasonable doubt the absence of the heat of passion on sudden provocation 

when the issue is properly presented in a homicide case.” Justice Kennard also relied on 

Mullaney in her dissent in Breverman. (Breverman, supra, 19 Cal.4th at p. 190, dis. opn. 

of Kennard, J.)

The procedural history of Thomas, both before and after the Court of Appeal

reached its ultimate conclusion that Chapman, supra, 386 U.S. 18 applies, reinforces the 

uncertainty whether a failure to give a heat-of-passion instruction implicates the federal 

Constitution. When the defendant in Thomas first appealed, the Court of Appeal 

affirmed his conviction of second degree murder by relying on Breverman and 

concluding in a nonpublished opinion that the trial court’s failure to give a requested 

heat-of-passion instruction was harmless under Watson, supra, 46 Cal.2d 818. (Thomas, 

supra, 218 Cal.App.4th at p. 633; People v. Thomas (May 16, 2012, A129933) [nonpub. 

opn.].) Our Supreme Court granted the defendant’s petition for review and remanded the 

case back to the Court of Appeal “with directions to address defendant’s contention that 

the trial court’s refusal to instruct on heat of passion voluntary manslaughter constituted 

 

11 In Beltran, our Supreme Court cited Breverman, supra, 19 Cal.4th 142 and Moye, 

supra, 47 Cal.4th 537 to support its conclusion that any harm from ambiguity in an 

instruction on provocation introduced by the closing arguments should be reviewed under 

Watson, supra, 46 Cal.2d 818. (Beltran, supra, 56 Cal.4th at pp. 954-955.) Beltran is 

unhelpful in evaluating whether the federal Constitution requires a heat-of-passion 

instruction to be given because such an instruction was given in that case. (Id. at p. 953; 

see also Thomas, supra, 218 Cal.App.4th at pp. 643-644 [distinguishing Beltran].)
25

federal constitutional error.” (People v. Thomas (Aug. 29, 2012, S203557).) Acting on 

this remand, the Court of Appeal then reversed the defendant’s conviction of second 

degree murder by concluding that the failure to give a heat-of-passion instruction was a 

federal constitutional error subject to review under Chapman. (Thomas, supra,

218 Cal.App.4th at pp. 633, 642-644.) The Attorney General’s petition for review of the 

revised Thomas decision was denied. (Oct. 30, 2013, S213262.)

The full import of Thomas is thus unclear. The Court of Appeal apparently 

viewed our Supreme Court’s directions in its remand as a signal to consider the issue—

similar to the one reserved in footnote 19 of Breverman, supra, 19 Cal.4th at p. 170—

whether the failure to give a heat-of-passion instruction violates the federal Constitution

under Mullaney, supra, 421 U.S. 684 because it does not ensure that the jury finds true 

beyond a reasonable doubt each element of the charged offense. The Court of Appeal 

answered in the affirmative.

12

 But the remand and subsequent denial of the petition to 

review the Court of Appeal’s application of Chapman, supra, 386 U.S. 18 could 

alternatively indicate that a refusal to give a requested heat-of-passion instruction in a 

noncapital case may violate the federal Constitution for some reason other than that 

suggested by Mullaney and that is inapplicable in a sua sponte case. (See, e.g., People v. 

Rogers (2006) 39 Cal.4th 826, 871-872 [considering the possibility that the failure to give 

a requested instruction on a lesser included offense “embodying the defense theory of the 

case and around which the defendant had built his or her defense” may “violate[] the 

defendant’s due process right to present a complete defense”]; Solis v. Garcia, supra,

219 F.3d at p. 929 [same].) Ultimately, we need not decide the difficult issue whether the 

error here violated the federal Constitution and should be evaluated under Chapman, 

supra, 386 U.S. 18 because we conclude that the error was prejudicial even under the less 

stringent Watson standard (46 Cal.2d 818).

 

12 If Mullaney, supra, 421 U.S. 684 controls the analysis, we cannot perceive how the 

resolution of whether the federal Constitution is implicated because of the jury’s inability 

to determine each element of the offense would depend on whether a heat-of-passion 

instruction was rejected after a request or was not given sua sponte.
26

4. The instructional error was prejudicial under Watson.

An error is prejudicial under Watson, supra, 46 Cal.2d 818 if, “ ‘ “ ‘ “after an 

examination of the entire cause, including the evidence,” [the reviewing court] is of the 

“opinion” that it is reasonably probable that a result more favorable to the appealing party 

would have been reached in the absence of the error.’ ” ’ ” (People v. Wilkins (2013) 

56 Cal.4th 333, 351.) As our Supreme Court has “ ‘made clear[,] . . . a “probability” in 

this context does not mean more likely than not, but merely a reasonable chance, more 

than an abstract possibility.’ ” (Ibid., italics omitted.)

We conclude that there is a reasonable chance that the jury would have convicted 

Millbrook of attempted voluntary manslaughter based upon a sudden quarrel or heat of 

passion if it had been given the opportunity to do so. The evidence conflicted as to what 

prompted Millbrook to shoot Manoa and what his mind state was when he fired the shot. 

While there was little evidence that Manoa had a gun or that Millbrook acted in selfdefense, the jury could not agree that the shooting was willful, deliberate, and 

premeditated. Keeping in mind the evidence favorable to Millbrook, including the 

evidence that Manoa provoked their quarrel and that Millbrook spontaneously shot him, 

we conclude that there is more than an abstract possibility that the jury would have found 

Millbrook guilty of the lesser included offense of attempted voluntary manslaughter if it 

had been given a heat-of-passion instruction.

The likelihood of prejudice was enhanced because the prosecutor argued in 

closing that Millbrook shot Manoa out of anger after being provoked. The prosecutor 

argued, “[Millbrook] has no defense. Because he got mad. He got mad when Sione 

Manoa used the word ‘bitch’ and he pulled that gun out and shot Mr. Manoa in the 

chest.” The prosecutor also said, in arguing that Millbrook had not acted in self-defense, 

“You’ll be told that words do not justify this type of act of violence. They can’t. 

Otherwise, it’s the wild, wild west out there. You say something about my mama, I get 

to shoot you. And then you say, Hey, it was self-defense. I get to bring a gun around 

until somebody says something I don’t like and calls me a bitch or calls the woman I love 

a bitch, and then I get to shoot them . . . and try to claim it’s self-defense. None of us are 
27

signed up for that.” But while words alone may not justify self-defense, they may be 

sufficiently provocative to support a jury’s finding that a defendant acted in the heat of 

passion (Moye, supra, 47 Cal.4th at p. 550; 1 Witkin & Epstein, Cal. Criminal Law (4th 

ed. 2012) Crimes Against the Person, § 236, p. 1059), especially when they are coupled 

with evidence of the kind of threatening behavior that witnesses testified occurred in this 

case. Thus, if it had been given a heat-of-passion instruction, the jury could have 

accepted the prosecutor’s basic theory of the case and still concluded that Millbrook was 

only guilty of attempted voluntary manslaughter.

Citing Moye, the Attorney General argues that when a jury rejects both reasonable 

and imperfect self-defense, “it is unlikely that a defendant could have obtained a more 

favorable result with an instruction on heat-of-passion voluntary manslaughter.” In doing 

so, she relies on Moye’s conclusion that the failure to give a heat-of-passion instruction in 

that case was harmless under Watson, supra, 46 Cal.2d 818 because, once the jury 

rejected the factual basis for both theories of self-defense, “there was little if any 

independent evidence remaining to support [the defendant’s] further claim that he killed 

in the heat of passion, and no direct testimonial evidence from defendant himself to 

support an inference that he subjectively harbored such strong passion, or acted rashly or 

impulsively while under its influence for reasons unrelated to his perceived need for selfdefense.” (Moye, supra, 47 Cal.4th at p. 557, italics omitted.) But this discussion was 

based on the facts, and the facts are different here. The only evidence supporting a heatof-passion instruction in Moye was the defendant’s own testimony that he acted in selfdefense. Thus, in rejecting the self-defense argument, the jury in Moye necessarily 

rejected the only evidence that would have supported a heat-of-passion instruction. In 

contrast, the jury here did not necessarily reject all the evidence supporting a heat-ofpassion instruction by refusing to find that Millbrook acted in self-defense. Although it 

almost certainly rejected Millbrook’s testimony that Manoa was holding a gun at the time 

of the shooting, there was significant other evidence supporting a theory of attempted 

voluntary manslaughter on the basis of heat of passion. Moye does not hold that a failure 
28

to instruct on heat of passion can never be prejudicial when a jury rejects a finding of 

self-defense, and neither will we.

Finally, the Attorney General argues that it is “highly improbable” the jury would 

have found that Millbrook shot Manoa in a heat of passion because if he had, “he would 

have stayed at the scene and explained the shooting to the police” instead of fleeing. It is 

true that immediate flight may reflect a defendant’s consciousness of guilt, and the jury 

was so instructed. (§ 1127c; Beltran, supra, 56 Cal.4th at p. 957.) But the Attorney 

General fails to cite any authority, and we are aware of none, supporting the proposition 

that defendants tend to flee only when they have committed certain crimes but not others. 

We do not buy the argument that Millbrook’s flight demonstrates an awareness of guilt of 

attempted murder but not of attempted voluntary manslaughter.

Even though substantial evidence was presented that Millbrook may have been 

acting on a sudden quarrel or in the heat of passion when he shot Manoa, the instructions 

were “bereft of any indication that the jury could consider [Millbrook’s] emotional 

excitement as a factor that could reduce his criminal culpability.” (Thomas, supra, 

218 Cal.App.4th at p. 645.) We conclude that there is a reasonable probability that, had it 

been given the opportunity, the jury would have found that Millbrook was guilty of 

attempted voluntary manslaughter because he was acting upon a sudden quarrel or heat of 

passion. Accordingly, Millbrook’s conviction for attempted murder cannot be 

sustained.13

B. Millbrook’s Conviction for Attempted Murder Was Supported by Sufficient 

Evidence.

We next turn to whether Millbrook’s conviction for attempted murder was 

supported by sufficient evidence. Even though we have reversed the conviction, we must 

decide this issue because the People are permitted to retry Millbrook for the charge only 

 

13 Millbrook also argues that the minute order and the abstract of judgment reflecting his 

conviction must be modified because they incorrectly state that he was convicted of 

“willful, deliberate, and premeditated” attempted murder. The Attorney General 

concedes the error. While we agree that an error occurred, the issue is moot in light of 

our reversal of Millbrook’s conviction for attempted murder.
29

if sufficient evidence was presented in the first trial to support it. (United States v. 

DiFrancesco (1980) 449 U.S. 117, 131; People v. Hernandez (2003) 30 Cal.4th 1, 6-7.) 

We conclude that sufficient evidence was presented to support the conviction.

In evaluating whether sufficient evidence supports a conviction, we “ ‘ “review the 

whole record in the light most favorable to the judgment below to determine whether it 

discloses substantial evidence—that is, evidence which is reasonable, credible, and of 

solid value—such that a reasonable trier of fact could find the defendant guilty beyond a 

reasonable doubt.” [Citation.]’ ” (People v. Clark (2011) 52 Cal.4th 856, 942-943.) We 

consider all the evidence presented, including circumstantial evidence, and “ ‘ “ ‘presume 

in support of the judgment the existence of every fact the trier could reasonably deduce 

from the evidence.’ ” [Citation.]’ ” (Id. at p. 943.)

“[I]ntent to kill or express malice, the mental state required to convict a defendant 

of attempted murder, may in many cases be inferred from the defendant’s acts and the 

circumstances of the crime.” (People v. Smith (2005) 37 Cal.4th 733, 741.) In particular, 

“ ‘[t]he act of firing toward a victim at a close, but not point blank, range’ ‘in a manner 

that could have inflicted a mortal wound had the bullet been on target is sufficient to 

support an inference of intent to kill” ’ ” (ibid.), even if the defendant shoots “without 

advance consideration.” (People v. Arias (1996) 13 Cal.4th 92, 162.)

Here, Millbrook admitted pointing the gun at Manoa and intentionally shooting it,

and Manoa testified that the gun was no more than two feet away from him when 

Millbrook fired. Neither the fact that Manoa survived nor the fact that Millbrook shot 

only once “compel[s] the conclusion that [Millbrook] lacked the animus to kill in the first 

instance.” (People v. Smith, supra, 37 Cal.4th at p. 741.) The evidence that Millbrook 

intentionally shot at Manoa’s chest at close range was sufficient to permit the jury to 

conclude that Millbrook had the requisite express malice.

Millbrook acknowledges the principle “that [an] intent to kill can be inferred from 

a potentially fatal shooting at close range,” but he argues that this case is distinguishable 

because the shooting occurred during a fight in which Millbrook felt threatened, and “the 

drawing of his weapon and shooting it [did] not demonstrate an intent to kill, but rather 
30

demonstrated a reflexive type of reaction to protect himself and [Diaz] from harm.” We 

disagree. This contention is tantamount to arguing that Millbrook acted in self-defense

when he shot Manoa. But because the jury rejected a finding of either form of selfdefense, Millbrook cannot now essentially claim that the evidence shows that he acted in 

self-defense.

In addition, while it is true that shooting reflexively, without thought, does not 

establish an intent to kill (see People v. Arias, supra, 13 Cal.4th at p. 162), Millbrook’s 

testimony that he intentionally pulled the gun from his pants, aimed it at Manoa, and shot 

it was sufficient for the jury to have concluded that the shooting was not reflexive. Even 

if there was some evidence that the shooting was reflexive, we cannot disregard the 

substantial other evidence supporting the determination that Millbrook had an unlawful 

intent to kill when he shot Manoa. (See People v. Lee (2011) 51 Cal.4th 620, 632 

[evidentiary conflicts do not justify reversal when reviewing for sufficiency of the

evidence].)

Millbrook also argues that the prosecutor’s closing argument improperly told the 

jury that it could convict Millbrook of attempted murder if it found he acted with a 

conscious disregard for life. He takes issue with the prosecutor’s statements that 

(1) “everybody knows when you point a gun at somebody and it goes off, horrible, 

horrible things happen”; (2) “[w]hen you point a gun at somebody’s chest and pull the 

trigger, what else are you trying to do?”; (3) “[w]hat did [Millbrook] think was gonna 

happen? You shoot a man in the chest. He is trying to stop [Manoa] permanently”; and 

(4) “we don’t have a window in[to] people’s minds. The instructions basically allow you 

to consider their conduct [in determining intent]. And if any of us are standing there and 

watching me shoot somebody from this distance, there would be no question. Of course 

I’m trying to kill [Manoa] when shooting him in the chest from this far.”

We do not perceive how these remarks bear on whether the evidence was 

sufficient to support Millbrook’s conviction of attempted murder. The prosecutor made

the statements in closing argument, and they were not evidence, as the jury was 

instructed. (People v. Stanley (2006) 39 Cal.4th 913, 961, fn. 10 [“ ‘[i]t is axiomatic that 
31

argument is not evidence’ ”].) To the extent Millbrook attempts to suggest that the 

remarks constituted prosecutorial misconduct, he has waived the claim by not previously 

objecting to them. (See People v. Gray (2005) 37 Cal.4th 168, 215.) And even if he had 

preserved the claim, we would reject it on its merits. The prosecutor’s statements 

accurately reflect the principles that “ ‘[a] defendant’s specific intent to commit a crime 

may be inferred from all of the facts and circumstances disclosed by the evidence’ ” 

(People v. Scott (2011) 52 Cal.4th 452, 488) and that, in particular, “the act of 

purposefully firing a lethal weapon at another human being at close range, without legal 

excuse, generally gives rise to an inference that the shooter acted with express malice.” 

(People v. Smith, supra, 37 Cal.4th at p. 742.) The jury was expressly instructed that to 

find Millbrook guilty of attempted murder it had to find that he intended to kill Manoa. 

There was no misconduct.

We conclude that sufficient evidence supports Millbrook’s conviction for 

attempted murder. Thus, the People may retry him on this charge if they elect to do so. 

But if they do not elect to do so, we order that the judgment be modified to reflect a 

conviction of attempted voluntary manslaughter. We are “ ‘not restricted to the remedies 

of affirming or reversing [the] judgment. Where the prejudicial error goes only to the 

degree of the offense for which the defendant was convicted, the appellate court may 

reduce the conviction to a lesser degree and affirm the judgment as modified, thereby 

obviating the necessity for a retrial.’ ” (People v. Edwards (1985) 39 Cal.3d 107, 118; 

Thomas, supra, 218 Cal.App.4th at p. 647; see § 1260.) Accordingly, the People will 

have the option of retrying Millbrook for attempted murder or accepting a modification 

of the judgment to reflect a conviction for attempted voluntary manslaughter and to strike 

the enhancement allegation under section 12022.53, subdivision (d). (See Edwards, at 

p. 118.) If the judgment is so modified, the trial court will have the opportunity to 

resentence Millbrook.

C. The Admission of Evidence of an Uncharged Prior Incident Was Harmless.

At trial, Michael Pina was allowed to testify that in August 2008 Millbrook 

brandished a gun during a confrontation between the two. Over Millbrook’s objection, 
32

the testimony was allowed to show a common plan or scheme of using a gun when 

confronted with perceived threats. Millbrook argues that this evidentiary ruling violated 

his federal constitutional right to due process.14 We conclude that any error in allowing 

evidence of this prior incident was harmless.

Pina testified that he did not interact with Millbrook after they had their physical 

fight at high school until Millbrook pulled his car up behind Pina when he was walking 

down the street. Pina put his hands up and called Millbrook a “bitch” because he thought 

Millbrook might be trying to hit him with the car. Millbrook said, “What?” and drove 

away. Pina testified that later that day he was walking home when Millbrook came upon 

him again in his car. Millbrook’s father got out of the car, cursed at Pina, and hit Pina’s

eye. Pina pushed Millbrook’s father away, and then Millbrook got out of the car and 

pointed a revolver at Pina from 10 to 12 feet away, angrily telling Pina that he was the 

“bitch” now. Pina testified that he feared for his life but stood his ground, and Millbrook 

and his father eventually left. Millbrook denied that the confrontation had happened the 

way Pina described it but did not provide an alternative version.

Pina reported the incident to the police. An officer with the Alameda County 

Sheriff’s Office testified that when he took Pina’s report, Pina did not have any visible 

injuries. Millbrook was never arrested or charged. The officer acknowledged, however, 

that his declining to forward the report to the district attorney was probably a mistake.

Before trial, Millbrook moved to exclude evidence of the incident. The 

prosecution argued that the evidence was admissible to establish Millbrook’s “common 

plan to respond to all perceived threats by using a handgun.” The court observed that the 

evidence “would go more towards motive or maybe slightly under a plan [¶] . . . [¶] or in 

terms of that type of response,” and it ruled that the evidence was sufficiently probative 

 

14 We consider this claim and Millbrook’s remaining claims, notwithstanding our reversal 

of the attempted murder conviction, because they bear on his convictions for assault and 

because they bear on any modified judgment for attempted voluntary manslaughter.
33

to be admissible despite being prejudicial.15 Although the court thus identified a few 

issues to which the evidence might be relevant, the jury was subsequently instructed that 

it could only consider the evidence “for the limited purpose whether the defendant had a 

plan or scheme to commit the offenses charged in this case.”

Under Evidence Code section 1101, evidence that a defendant “committed an 

uncharged offense may be admitted if relevant to prove some relevant fact other than the 

defendant’s character” or disposition, such as a “common design or plan.” (People v. 

Balcom (1994) 7 Cal.4th 414, 422.) “ ‘When reviewing the admission of evidence of 

other offenses, a [trial] court must consider: (1) the materiality of the fact to be proved or 

disproved, (2) the probative value of the other crime evidence to prove or disprove the 

fact, and (3) the existence of any rule or policy requiring exclusion even if the evidence is 

relevant. [Citation.] Because this type of evidence can be so damaging, “[i]f the 

connection between the uncharged offense and the ultimate fact in dispute is not clear, 

the evidence should be excluded.” ’ ” (People v. Fuiava (2012) 53 Cal.4th 622, 667.) 

We review the court’s admission of such evidence for abuse of discretion. (Id. at 

pp. 667-668.)

Evidence of uncharged acts suggesting “a common design or plan is admissible to 

establish that the defendant committed the act alleged . . . in the manner alleged” but “not 

to prove the defendant’s intent or identity.” (People v. Ewoldt (1994) 7 Cal.4th 380, 394,

fn. 2, 399, italics omitted.) Such evidence “must demonstrate ‘not merely a similarity in 

the results, but such a concurrence of common features that the various acts are naturally 

to be explained as caused by a general plan of which they are individual 

manifestations.’ ” (Id. at p. 402.) However, while the similarities between the charged 

and uncharged offenses “must indicate the existence of a plan rather than a series of 

similar spontaneous acts, . . . the plan thus revealed need not be distinctive or unusual.” 

(Id. at p. 403.)

 

15 The court granted Millbrook’s motion to exclude evidence of another incident in which 

the police found him in possession of a gun, but at trial defense counsel elicited testimony 

about that incident from Millbrook.
34

We agree with Millbrook that the August 2008 incident was not sufficiently 

similar to the charged offenses to suggest that it and the shooting were part of a common 

plan. The only similarity between the incidents was that both times Millbrook pulled a 

gun when someone threatened or insulted him or someone close to him. Otherwise, the 

incidents, which were separated by over a year, involved different people, different 

circumstances, and different outcomes (most obviously because Millbrook did not shoot 

the gun in August 2008). Pulling a gun in reaction to conflict is not the type of “plan” 

contemplated in Evidence Code section 1101. (See People v. Sam (1969) 71 Cal.2d 194, 

204-205 [evidence that “ ‘when there is a confrontation between the defendant and 

someone else with whom he disagrees . . . he kicks the person’ ” was not admissible to 

establish a common plan].) We otherwise perceive “no connecting link between the prior 

and present acts,” and we conclude that they “were independent of one another and 

apparently spontaneous in each instance.” (Id. at p. 205.)

The evidence was inadmissible to establish a common plan or scheme for the 

additional reason that the primary issue at trial was Millbrook’s intent, not whether he 

“committed the act alleged . . . in the manner alleged.” (People v. Ewoldt, supra, 

7 Cal.4th at p. 394, fn. 2, italics omitted.) There was no real dispute that Millbrook 

pulled out his gun, aimed it at Manoa, intentionally shot it, and injured Manoa and 

Galvan. The only elements of the charged offenses and enhancements not established by 

these undisputed facts related to Millbrook’s intent and whether he acted in self-defense. 

While there was a question whether Millbrook accidentally cocked the gun—which bore 

on how quickly he formed the intent to shoot Manoa—the August 2008 incident had no 

bearing on that issue because there was no evidence that Millbrook cocked the gun on 

that occasion.

We recognize the principle that in general, “[i]f a judgment rests on admissible 

evidence it will not be reversed because the trial court admitted that evidence upon a 

different theory, a mistaken theory, or one not raised below.” (People v. Brown (2004) 

33 Cal.4th 892, 901.) But the Attorney General has not identified any other basis on 
35

which this evidence was admissible, and we express no opinion whether any such basis 

may exist should Millbrook be retried.

Ultimately, we need not determine whether the evidence was properly admissible 

on another basis because we conclude that any error in its admission was harmless. 

Based on the undisputed facts, the only way that the jury could have reasonably 

concluded that Millbrook was not guilty of either attempted voluntary manslaughter or 

assault with a firearm causing great bodily injury would have been if it determined that 

Millbrook acted in reasonable self-defense. In order to have made such a determination, 

the jury would have had to believe that Millbrook reasonably believed that Manoa had a 

gun and had pulled it out before Millbrook shot him. The only evidence that Manoa 

pulled a gun, or even had a gun at all, was Millbrook’s testimony. Manoa denied having 

a gun, no witness other than Millbrook saw Manoa with a gun, and no such gun was ever 

recovered.

Moreover, Millbrook had the opportunity to put the August 2008 incident—which 

happened less than a month after Sandoval shot at him—in context as part of a longstanding conflict with Pina and the Gun Boys. In fact, evidence of the conflict between 

Pina’s group and Millbrook played a key role in Millbrook’s defense because he relied on

it to explain why he carried the gun to Placencia’s party and why he felt threatened when 

surrounded by Manoa and Manoa’s friends.

Finally, the prosecution placed little reliance on the August 2008 incident to make 

its case, not mentioning it in the opening argument and mentioning it only briefly in

closing.

Given the weak evidence that Millbrook acted in reasonable self-defense and the 

minor role the August 2008 incident played in the parties’ cases, we conclude that any 

error in the admission of Pina’s testimony about the prior incident was harmless beyond a 

reasonable doubt (Chapman, supra, 386 U.S. at p. 24) and that it was not reasonably 

probable that Millbrook would have received a more favorable verdict if the court had 

excluded the testimony. (Watson, supra, 46 Cal.2d at p. 836.)
36

D. Millbrook’s Motion to Dismiss a Juror Was Properly Denied.

Millbrook contends that he was denied his federal constitutional right to a fair trial

and his convictions must be reversed because the trial court did not dismiss a juror who 

criticized his counsel. We disagree.

Under section 1089, the trial court may discharge a sitting juror whom the court 

finds, “upon . . . good cause shown[,] . . . to be unable to perform his or her duty.” We 

review the determination whether to discharge a juror under a “heightened” abuse of 

discretion standard. (People v. Wilson (2008) 44 Cal.4th 758, 821.) Under this standard, 

“a juror’s inability to perform as a juror must be shown as a ‘demonstrable reality’ 

[citation] which requires a ‘stronger evidentiary showing than mere substantial 

evidence.’ ” (Ibid.)

After the prosecution had presented its last witness, juror No. 12 sent a note to the 

court about defense counsel that read: “Mr. Pointer, is he playing ‘dirty pool’ [sic]? Is it 

fair to question/bring damage to witness’ [sic] claims? Do events need to be corroborated 

where it’s a 1:1 incident; ie [sic] no witnesses? Mr. Pointer’s interview techniques can be 

disgusting/untoward or humiliating. Is this appropriate court conduct?”

With the prosecutor and defense counsel present, the court asked the juror whether 

his opinion of defense counsel would affect his ability to be fair and to make a decision, 

and the juror repeatedly said it would not. Both counsel questioned the juror about the 

note, and he stated that he could be fair, would not hold the attorneys’ styles against 

them, and no longer had the feelings about defense counsel he had expressed in the note. 

The court also answered the questions posed in the note, explaining that the jury 

instructions would address the issue of corroboration and that the attorneys could use 

whatever style they wished as long as it was appropriate.

After the juror left the courtroom, the defense moved for his dismissal. The court 

denied the motion, finding that the juror was “very forthright and candid,” that “he 

completely understood” his duty was to decide based on the evidence, and that he 

realized his feelings “should [not] affect his judgment.”
37

The evidence fails to establish that juror No. 12 was unable to perform his duty. 

While the juror’s note expressed strong feelings about defense counsel’s crossexamination style, the juror reiterated that his opinions would not affect his decision and 

stated that he no longer even held those opinions. The denial of the motion to dismiss 

juror No. 12 did not violate section 1089, and we therefore also reject Millbrook’s federal 

constitutional claim that he was denied an impartial jury. (See People v. Martinez (2010) 

47 Cal.4th 911, 943, fn. 1.)

E. Cumulative Error Does Not Justify Reversing Millbrook’s Other Convictions.

Millbrook contends that the cumulative effect of the errors he identifies requires 

reversal of his convictions, even if none of the errors individually requires reversal. 

Because we conclude that his conviction for attempted murder must be reversed, we need 

not consider the failure to give a heat-of-passion instruction in our consideration of this 

claim. The only other potential error we have identified was the admission of evidence of 

the August 2008 incident, and it does not justify reversal of his remaining convictions for 

the reasons already given.

III.

DISPOSITION

Millbrook’s convictions for assault are affirmed. His conviction for attempted 

murder is reversed. The People shall have 60 days from issuance of the remittitur to 

decide whether to retry him for attempted murder. If the People do not file a charge of 

attempted murder within that time frame, the judgment shall be modified to reflect 
38

Millbrook’s conviction for attempted voluntary manslaughter instead of attempted 

murder and to strike the enhancement allegation under section 12022.53, subdivision (d). 

As so modified, the judgment is affirmed.

_________________________

Humes, J.

We concur:

_________________________

Reardon, Acting P.J.

_________________________

Rivera, J.
39

Trial Court: Alameda County Superior Court

Trial Judge: Honorable Kevin Murphy

Counsel for Appellant: Linda M. Leavitt, under appointment by the First 

District Appellate Project

Counsel for Respondent: Kamala D. Harris, Attorney General, Dane R. Gillette, 

Chief Assistant Attorney General, Gerald A. Engler, 

Senior Assistant Attorney General, René A. Chacón, 

Supervising Deputy Attorney General, Bruce Ortega, 

Deputy Attorney General