Filed 4/18/23 P. v. Fleming CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions 

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion 

has not been certified for publication or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

SCOTT ROBERT FLEMING,

 Defendant and Appellant.

2d Crim. No. B315836

(Super. Ct. No. 19CR06812)

(Santa Barbara County)

Scott Robert Fleming appeals from the judgment entered 

after a jury had convicted him of voluntary manslaughter based 

on conscious disregard for human life. (Pen. Code, § 192, subd. 

(a).)1 The victim suffered a fatal brain injury after appellant had 

punched him in the face. The blow caused the victim to fall 

backward, striking the back of his head against a hard surface.

Appellant admitted one prior serious felony conviction 

(§ 667, subd. (a)(1)) and one prior strike within the meaning of 

California’s “Three Strikes” law. (§§ 667, subds. (b)-(i), 1170.12, 

1 All statutory references are to the Penal Code.
2

subds. (a)-(d).) The trial court denied appellant’s motion to 

dismiss the strike. He was sentenced to prison for 27 years: the 

upper term of 11 years, doubled to 22 years because of the prior 

strike, plus five years for the prior serious felony conviction. 

Appellant maintains that, during closing argument, the 

prosecutor erroneously informed the jury that it must find “[t]he 

natural consequences of [his] act were dangerous to human life. 

Not the natural and probable [consequences].” Appellant claims 

the prosecutor should have explained that “where a defendant is 

charged with voluntary manslaughter [based on conscious 

disregard for human life] . . . , the People must prove that the 

[defendant’s] act had an objectively high probability of death.” 

Appellant argues that the prosecutor’s misstatement of the law 

constituted prejudicial misconduct because “[t]his was . . . a close 

case as to whether appellant’s act of punching [the victim] had an 

objectively high probability of causing death.” 

Appellant also claims: (1) the trial court erroneously failed 

to clarify the jury instruction on voluntary manslaughter, and (2) 

the matter must be remanded for resentencing because of recent 

Penal Code amendments that apply retroactively to him. We 

disagree and affirm.

Facts

Appellant and Eric Romero were friends. One night they 

were drinking together with other friends at a pub. After leaving 

the pub, appellant and one of his drinking companions (not 

Romero) got into a fight. The fight broke up, and the drinking 

companion walked away. 

Appellant “was still fired up.” Romero “was . . . trying to 

calm him down.” They were standing “in front of each other” on 

the sidewalk. A witness testified: Romero was “backing away” 
3

from appellant. Appellant threw “a sucker punch . . . really quick 

. . . and hit [Romero] . . . right in the face.” “I don’t think 

[Romero] saw it coming.” 

The witness continued: When Romero was hit, he was 

standing “on the edge of the curb.” He “fell straight backwards 

onto the street and hit his head.” The witness heard a “really 

loud” “smack, a slap.” “[W]hat really stands out was the crack 

when he hit the ground.” Romero went “totally limp.” Appellant 

ran away. 

Romero sustained several skull fractures. The cause of 

death was a “catastrophic irreversible brain injury from 

malignant cerebral edema,” i.e., swelling of the brain. 

Appellant did not testify.

Voluntary Manslaughter

“Manslaughter is ‘the unlawful killing of a human being 

without malice.’ (§ 192.) A defendant lacks malice and is guilty 

of voluntary manslaughter in ‘limited, explicitly defined 

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

“[V]oluntary manslaughter requires either an intent to kill or a 

conscious disregard for life.” (People v. Bryant (2013) 56 Cal.4th 

959, 970; see also People v. Parras (2007) 152 Cal.App.4th 219, 

224 [“voluntary manslaughter may . . . occur when one kills with 

a conscious disregard for life but no intent to kill”].) 

The Prosecutor Did Not Misstate

The Law During Closing Argument

“Although counsel have broad discretion in discussing the 

legal and factual merits of a case [citation], it is improper to 

misstate the law.” (People v. Bell (1989) 49 Cal.3d 502, 538.) 

Appellant contends the prosecutor misstated the law during 

closing argument when he said the People must prove that “[t]he 
4

natural consequences of the act [i.e., appellant’s punch to 

Romero’s face,] were dangerous to human life. Not the natural 

and probable. Just the natural consequences of the act were 

dangerous to . . . human life.” Appellant asserts, “[W]here a 

defendant is charged with voluntary manslaughter, . . . the 

People must prove that the act had an objectively high 

probability of death.” 

The prosecutor did not misstate the law or mislead the 

jury. The prosecutor’s statement is in accord with CALCRIM No. 

572, the instruction for voluntary manslaughter that was given to 

the jury. It provides: “[T]he People must prove that: [¶] 1. The 

defendant intentionally committed an act that caused the death 

of another person; [¶] 2. The natural consequences [not the 

natural and probable consequences] of the act were dangerous to 

human life; [¶] 3. At the time (he/she) acted, (he/she) knew the 

act was dangerous to human life; AND [¶] 4. (He/She) 

deliberately acted with conscious disregard for human life.” 

(Italics added.)

The prosecutor’s statement is also in accord with the 

current version of the CALJIC instruction for voluntary 

manslaughter, No. 8.40, which was not given to the jury: “The 

phrase, ‘conscious disregard for life,’ as used in this instruction, 

means that a killing results from the doing of an intentional act, 

the natural consequences of which are dangerous to life, which act 

was deliberately performed by a person who knows that his or 

her conduct endangers the life of another and who acts with 

conscious disregard for life.” (West’s California Jury Instructions,

Criminal (Oct. 2022 update), italics added.)

CALCRIM No. 572 is consistent with the law of implied 

malice: “‘Malice is implied when the killing is proximately caused 
5

by “‘an act, the natural consequences of which are dangerous to 

life, which act was deliberately performed by a person who knows 

that his conduct endangers the life of another and who acts with 

conscious disregard for life.’”’” (People v. Cravens (2012) 53 

Cal.4th 500, 507, italics added (Cravens).) Appellant 

acknowledges that “[t]he threshold elements of implied malice 

(i.e., conscious disregard) are . . . identical for murder and 

voluntary manslaughter, with the distinction between the two 

offenses turning on whether malice is mitigated,” i.e., malice is 

mitigated for voluntary manslaughter but not for murder. 

We reject appellant’s assertion that “the mental state

required for implied malice, for both voluntary manslaughter and 

murder, requires an act for which death is an objectively probable 

result.” (Italics added.) (See Cravens, supra, 53 Cal.4th at p. 

508, italics added [“we must determine whether there is 

sufficient evidence to satisfy both the physical and the mental 

components of implied malice, the physical component being ‘“the 

performance of ‘an act, the natural consequences of which are 

dangerous to life,’”’ and the mental component being ‘“the 

requirement that the defendant ‘knows that his conduct endangers 

the life of another and . . . acts with a conscious disregard for 

life’”’”], italics added.)

In support of his argument that “the People must prove 

that the act had an objectively high probability of death,” 

appellant cites Justice Liu’s concurring opinion in Cravens, 

supra, 53 Cal.4th at pp. 512-514.) Justice Liu noted that in a 

concurring opinion in People v. Thomas (1953) 41 Cal.2d 470, 480, 

Justice Traynor had “said implied malice is shown when ‘the 

defendant for a base, antisocial motive and with wanton 

disregard for human life, does an act that involves a high degree 
6

of probability that it will result in death.’” (Cravens, supra, 53 

Cal.4th at p. 512, conc. opn. of Liu, J., italics added.) Justice Liu 

referred to Justice Traynor’s concurring opinion as the “Thomas 

formulation.” (Ibid.) 

But Justice Liu did not say that the Thomas formulation is 

correct. He said: “Today’s opinion does not mention Thomas’s 

formulation of the objective component. The court cites only 

the Phillips formulation [People v. Phillips (1966) 64 Cal.2d 574] 

in ‘find[ing] sufficient evidence that the manner of the assault 

and the circumstances under which it was made rendered the 

natural consequences of defendant’s conduct dangerous to life.’ 

[Citation.] The court’s omission of the Thomas formulation 

continues the erosion of that test . . . .” (Cravens, supra, 53 

Cal.4th at p. 513.) “[B]y omitting the Thomas test when 

defendant and the Court of Appeal have clearly relied on it, 

today’s opinion suggests (but does not hold) that the Phillips 

formulation matters in a close case such as this.”2 (Id. at p. 514.) 

CALCRIM No. 572 follows the Phillips formulation.

Appellant asserts that “the prosecutor clearly . . . misstated 

the law by arguing that there was no element of probability for 

voluntary manslaughter.” But the prosecutor correctly noted 

that the element of probability applies to the issue of causation. 

The prosecutor explained to the jury, “[A]n act causes the death if 

the death is the direct and natural and probable consequence of 

the act.” (Italics added.) 

The prosecutor’s explanation of causation is in accord with

CALCRIM No. 572, which provides: “An act causes death if the 

2 Phillips was overruled on another ground as stated 

in People v. Flood (1998) 18 Cal.4th 470, 490, fn. 12.)
7

death is the direct, natural, and probable consequence of the act 

and the death would not have happened without the act. A 

natural and probable consequence is one that a reasonable person 

would know is likely to happen if nothing unusual intervenes.” 

(Italics in original.)

Accordingly, the prosecutor did not misstate the law on 

voluntary manslaughter and therefore did not commit prejudicial 

misconduct.

The Trial Court Was Not 

Required to Clarify CALCRIM No. 572

Appellant concedes that the “[t]he jury instructions were 

technically accurate . . . .” Nevertheless, he argues that the trial 

court “erred by failing to clarify the jury instructions” because 

CALCRIM No. 572, “combined with the prosecutor’s 

misstatement of the law, created ambiguity as to the objective 

element of probability for implied malice,” thus “impact[ing] 

appellant’s fundamental rights.” 

During its deliberations, the jury requested that the court 

provide “[c]lassical examples of voluntary manslaughter. For 

example, hypotheticals taught in law school.” The court denied 

the request. It suggested that the jury review CALCRIM No. 572 

“as well as the entirety of the evidence that you have previously 

received in the trial.” Appellant asserts: “[I]t is reasonable to 

conclude that the prosecutor’s misstatement [of the probability 

requirement] contributed at least indirectly to the jury’s desire 

for further guidance. However, the trial court passed up the 

opportunity to clarify the probability requirement or the source of 

the jury’s confusion. Instead, the court redirected the jury to the 

ambiguous instructions already given. . . . [¶] The trial court 

thus erred by failing to adequately respond to the prosecutor’s 
8

misstatement of the law and the jury’s request for additional 

instruction on voluntary manslaughter.” 

We disagree. As we have shown in the preceding section of 

this opinion, the prosecutor did not misstate the law. Moreover, 

the jury did not request additional instruction on the elements of 

voluntary manslaughter. It requested “[c]lassical examples of 

voluntary manslaughter,” such as “hypotheticals taught in law 

school.” 

In any event, appellant forfeited the issue by inviting the 

trial court to not grant the jury’s request but to instead refer the 

jury to CALCRIM No. 572. Appellant’s counsel said, “The 

defense position is just going to be to refer them back to the 

instructions to look at [Calcrim No.] 572.” “The doctrine of 

invited error applies to estop a party from asserting an error 

when ‘his own conduct induces the commission of error.’” (People

v. Perez (1979) 23 Cal.3d 545, 549, fn. 3.) Furthermore, “[a] trial 

court has no sua sponte duty to revise or improve upon an 

accurate statement of law without a request from counsel 

[citation], and failure to request clarification of an otherwise 

correct instruction forfeits the claim of error for purposes of 

appeal.” (People v. Lee (2011) 51 Cal.4th 620, 638.)

However, we “may also review any instruction given, . . . 

even though no objection was made thereto in the lower court, if 

the substantial rights of the defendant were affected thereby.” 

(§ 1259.) Appellant has not shown that the trial court’s alleged 

failure to clarify the “probability requirement” affected his 

substantial rights. The prosecutor and CALCRIM No. 572 

explained that this requirement applies to the causation element 

of voluntary manslaughter. Appellant acknowledges “that the 

jury instructions given here contained a paragraph about
9

causation that included the terms ‘natural and probable’ and 

correctly framed the probability element as an objective query.” 

Appellant’s Claims Concerning 

Recent Sentencing Amendments 

Appellant claims: “[T]his case must be remanded for 

resentencing based on the retroactive application of Senate Bill 

No. 567 (2021-2022 Reg. Sess.) (‘SB 567’) and Assembly Bill No. 

518 (2021-2022 Reg. Sess.) (‘AB 518’), both of which took effect 

after the trial court sentenced appellant.” The People concede 

that SB 567 and AB 518 apply retroactively to appellant. 

SB 567

“‘Senate Bill No. 567 . . . amended section 1170, subdivision 

(b), making the middle term of imprisonment the presumptive 

sentence.’ [Citation.] ‘A trial court may impose an upper term 

sentence only where there are aggravating circumstances in the 

crime and the defendant has either stipulated to the facts 

underlying those circumstances or they have been found true 

beyond a reasonable doubt.’” (People v. Berdoll (2022) 85 

Cal.App.5th 159, 163 (Berdoll).) But “the court may consider the 

defendant’s prior convictions in determining sentencing based on 

a certified record of conviction without submitting the prior 

convictions to a jury.” (§ 1170, subd. (b)(3).)

Appellant contends his upper term sentence must be 

reversed because the jury made no factual findings as to 

aggravating circumstances. In imposing the upper term, the trial 

court relied on aggravating factors set forth in the probation 

report and “highlighted” by the prosecutor. The court said it was 

“in agreement” with “the sentencing factors that probation lays 

out.” 
10

According to the probation report, there are no mitigating 

factors. The report lists the following aggravating factors: “1. The 

crime involved great violence, great bodily harm, threat of great 

bodily harm, or other acts disclosing a high degree of cruelty, 

viciousness, or callousness [citation]. [¶] The victim . . . was 

trying to de-escalate the situation and calm the defendant down 

when the defendant attacked him with a ‘sucker punch’ that 

knocked him unconscious, and caused him to fall and suffer fatal 

injuries. The strike was vicious and, since the victim was not 

participating in the fighting and playing the role of peacemaker, 

especially callous and cold-hearted. [¶] 2. The defendant has 

engaged in violent conduct that indicates a serious danger to 

society [citation]. [¶] 3. The defendant's prior convictions as an 

adult or sustained petitions in juvenile delinquency proceedings 

are numerous or of increasing seriousness [citation]. [¶] 4. The 

defendant has served a prior term in prison or county jail under 

§1170(h) PC [citation]. [¶] 5. The defendant was on probation 

when the crime was committed [citation]. [¶] 6. The defendant's 

prior performance on probation and parole was unsatisfactory 

[citation].” 

At the time of sentencing in October 2021, appellant was 32 

years old. The trial court said the probation report “highlighted 

some five full pages of criminal history . . . dating all the way 

back to 2004 as a juvenile. . . . [O]f those 16 criminal matters 

that were commented upon, eight . . . involved violence by 

[appellant] upon another just as we had in the matter before this 

Court regarding young Eric Romero.” No one disputes the 

accuracy of the probation report.

The People argue that any error in imposing the upper 

term was harmless because “[i]t is evident beyond a reasonable 
11

doubt that the jury would have found that appellant suffered the 

alleged prior convictions and that appellant’s prior performance 

on probation and parole was unsatisfactory.” Furthermore, “the 

trial court relied on factors in aggravation that were supported by 

the record, namely that appellant had an extensive criminal 

history, prior prison terms, and poor performance on probation 

and parole. [Citations.] Therefore, the record clearly indicates 

that the trial court would not impose a more favorable sentence 

upon remand . . . .” 

The probation report lists numerous sustained juvenile 

petitions for criminal offenses. It enumerates the following adult 

felony convictions: (1) 2008 – Assault with a deadly weapon. 

(§ 245, subd. (a)(1).) This is both the prior strike and the serious 

felony conviction. Appellant was placed on probation, but his 

probation was revoked and he was sentenced to prison for four 

years. (2) 2009 – Infliction of physical or mental suffering on an 

elder. (§ 368, subd. (b)(1).) (3) 2012 – Assault by means of force 

likely to produce great bodily injury. (§ 245, subd. (a)(1).) (4) 

2013 – Resisting an executive officer. (§ 69.) Appellant was 

sentenced to prison for two years, eight months. He was 

subsequently convicted of misdemeanor offenses in 2017, 2018, 

and 2019. 

“‘“[I]f a reviewing court concludes, beyond a reasonable 

doubt, that the jury, applying the beyond-a-reasonable-doubt 

standard, unquestionably would have found true at least a single 

aggravating circumstance had it been submitted to the jury,” the 

error is harmless. . . .’” (Berdoll, supra, 85 Cal.App.5th at p. 163, 

quoting from People v. Flores (2022) 75 Cal.App.5th 495, 500.) 

“On this record we are satisfied, beyond a reasonable doubt, the 

jury would have found true [more than] one aggravating 
12

circumstance. . . . Thus, remand for resentencing . . . is 

unnecessary.” (Flores, supra, at p. 501.) “To remand would 

achieve the same sentencing result and would be a waste of 

judicial resources.” (Berdoll, supra, at p. 165.)3

AB 518

The information consisted of three counts based on the 

same act – appellant’s punch to Romero’s face. Count 1 was the 

voluntary manslaughter charge. Count 2 charged assault by 

means of force likely to produce great bodily injury. (§ 245, subd. 

(a)(4).) Count 3 charged battery causing serious bodily injury. 

(§ 243, subd. (d).) Appellant was convicted of all three offenses. 

The trial court imposed upper-term sentences on counts 2 and 3 

but stayed execution of the sentences pursuant to former section 

654. 

AB 518 amended section 654, which “prohibits multiple 

punishment for any single act or omission. If a single action or 

course of conduct by a defendant violates multiple laws, ‘the 

distinct crimes may be charged in separate counts and may result 

in multiple verdicts of guilt, [but] the trial court may impose 

sentence for only one offense. . . .’ [Citation.] Until recently, the 

3 Appellate courts are divided on the standard for assessing 

prejudice when determining whether a case should be remanded 

for resentencing in light of SB 567. (See, e.g., People v. Lopez

(2022) 78 Cal.App.5th 459, 465-466 [“In order to conclude that 

the trial court’s reliance on improper factors that were not found 

true by a jury or admitted by Lopez was not prejudicial, we would 

have to conclude beyond a reasonable doubt that a jury would 

have found true beyond a reasonable doubt every factor on which

the court relied”].) The issue is pending before our Supreme 

Court in People v. Lynch (May 27, 2022, C094174) [nonpub. opn.], 

review granted Aug. 10, 2022, S274942.
13

law required trial courts to impose sentence ‘under the provision 

that provides for the longest potential term of imprisonment.’ 

(Former § 654 . . . .) . . . Assembly Bill No. 518 . . . removes the 

requirement to impose the longest prison term. As the preamble 

to the bill explains, it allows ‘an act or omission that is 

punishable in different ways by different laws to be punished 

under either of those provisions.’” (People v. Sek (2022) 74 

Cal.App.5th 657, 673.)

Appellant maintains that, “[b]ecause Count 1 [voluntary 

manslaughter] carried a longer sentence than Counts 2-3, 

[pursuant to former section 654] the trial court . . . imposed the 

sentence for Count 1 . . . and stayed the sentence for Counts 

2-3 . . . .” Appellant argues, “[T]his case should be remanded so 

that the trial court can exercise its newly granted discretion to 

impose a lesser sentence among Counts 1-3.” 

“‘Defendants are entitled to sentencing decisions made in 

the exercise of the “informed discretion” of the sentencing court. 

[Citations.] A court which is unaware of the scope of its 

discretionary powers can no more exercise that “informed 

discretion” than one whose sentence is or may have been based 

on misinformation regarding a material aspect of a defendant’s 

record.’ [Citation.] In such circumstances, we have held that the 

appropriate remedy is to remand for resentencing unless the 

record ‘clearly indicate[s]’ that the trial court would have reached 

the same conclusion ‘even if it had been aware that it had such 

discretion.’” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391

(Gutierrez).)

The trial court did not say it was imposing the longer 

sentence for voluntary manslaughter because it was required to 

do so by former section 654. The record “clearly indicates” the 
14

court would have declined to exercise its discretion to lessen 

appellant’s sentence had it been aware it had such discretion 

under amended section 654. (Gutierrez, supra, 58 Cal.4th at p. 

1391.) If the court had wanted to lessen appellant’s sentence, it 

could have done so by granting his motion to dismiss the prior 

strike. Instead, the court denied the motion. 

The trial court was particularly disturbed that so many of 

appellant’s offenses had involved violence and that he had 

refused to accept blame for his actions: “[T]hroughout your adult 

life, you are often blaming others for your actions.” “[I]t is very, 

very difficult for you to ever acknowledge any blame for your 

actions over the years. And that difficulty is really troubling to 

the Court.” The court noted that “there were no mitigating 

factors” but “[t]here were numerous aggravating factors.” 

The probation report clearly shows that the longer sentence 

for voluntary manslaughter was warranted. In his closing 

evaluation, the probation officer wrote: “To the defendant’s 

detriment, the reckless and vicious aggression he demonstrated 

at the time of the instant offense was not an isolated incident for 

him, as his prior record illustrates. While an adult, he has 

recklessly harmed strangers by throwing rocks at their vehicles 

as they drove, causing injuries . . . ; he has viciously attacked an 

elderly apartment manager when he was confronted for loitering, 

causing injuries . . . ; he has viciously attacked a girlfriend’s exboyfriend with the butt of a knife during a confrontation, causing 

injuries . . . ; and he has attacked a woman at a bus stop in order 

to steal her purse . . . , which speaks loudly to his pattern of 

aggression and randomly attacking others unsuspectingly. These 

prior instances of violence, like the instant offense, appear to 

have been unprovoked and the result of the defendant’s 
15

willingness to needlessly harm others when angered. Despite . . . 

having been afforded numerous Court-related interventions over 

the years, the defendant has made no apparent rehabilitative 

progress. Unfortunately, his prior incarcerations, probation 

grants, and state prison commitments did not serve as effective 

deterrents for him or inspire him to change his lifestyle and 

attitude.” 

Disposition

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P. J.

BALTODANO, J.
Thomas R. Adams, Judge

Superior Court County of Santa Barbara

______________________________

Mark R. Feeser, under appointment by the Court of Appeal, 

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Idan Ivri, Supervising Deputy 

Attorney General, David A. Wildman, Deputy Attorney General, 

for Plaintiff and Respondent.