1

Filed 8/18/23 P. v. Harris CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

FIRST APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE, 

 Plaintiff and Respondent, 

v.

NOAH MICHAEL HARRIS,

Defendant and Appellant.

 A164007

 (Contra Costa County

 Super. Ct. No. 1196158 )

Defendant Noah Michael Harris was convicted by a jury of 

attempted murder (Pen. Code1 §§ 187, subd. (a), 664)(count 1); elder 

abuse (§ 368, subd. (b)(1))(count 2); assault with a deadly or dangerous 

weapon (§ 245, subd.(a)(1))(count 3); dissuading a witness from 

reporting a crime (§ 136.1, subd. (a)(1)) (count 4); and making criminal 

threats (§ 422, subd. (a)) (count 5). The jury also found true allegations 

that Harris used a deadly or dangerous weapon (§ 12022, subd. 

(b)(1))(count 1) and inflicted great bodily injury on a person 70 years of 

age or older (§ 12022.7, subd. (c)) (counts 1 and 3). He was sentenced to 

an aggregate term of 9 years in state prison.

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

The convictions arose from an incident during which the victim, 

71 years old at the time, was driving in a public park roadway when 

Harris threw a rock toward the back of his car. Harris and the victim 

then engaged in a heated verbal altercation before the victim began 

driving away. While there appeared no obstacle to the victim 

continuing to drive away, he instead backed up his car (with Harris 

also backing up on foot) and then drove toward Harris. Within seconds, 

the victim stopped his vehicle and Harris cut the side of the victim’s

neck, resulting in an injury requiring numerous stitches. The victim 

then drove forward a short distance and called 911. Harris contends 

the victim tried to hit him with his car and he was acting in the heat of 

passion when he cut the victim’s neck. The prosecution argued the 

victim was simply trying to scare Harris off though the victim told 

police after the incident that he accelerated to try to kill him.

On appeal, Harris challenges only the attempted murder 

conviction based on the argument (among others) that the trial court 

committed prejudicial error by refusing to instruct the jury on the 

lesser offense of a heat of passion theory of attempted voluntary 

manslaughter. We agree the trial court prejudicially erred and, 

accordingly, shall reverse the conviction for attempted murder.

2 While 

the trial court’s failure to properly instruct requires the attempted 

murder conviction be reversed, the People shall have the option of 

2 Given this determination, we do not address the arguments that 

the attempted murder conviction cannot stand because of the 

admission of prior offense evidence to prove Harris’s intent to kill the 

victim, the exclusion of evidence of Harris’s 2015 auto accident to 

support his claim that he acted in unreasonable self-defense, and the 

use of CALCRIM No. 600 (elements of attempted murder). In addition, 

the sentencing issues raised on appeal are rendered moot. 
3

accepting a modification of judgment to reflect a conviction of

attempted voluntary manslaughter.

FACTUAL AND PROCEDURAL BACKGROUND

The charges against Harris arose from his encounter with the 71-

year-old victim on May 27, 2021. The trial took place over three days in

September 2021, during which the prosecution presented four 

witnesses and introduced into evidence three one-minute video clips

taken from the victim’s car dashboard camera. Harris did not testify or 

present any witnesses. 

Video Evidence

The video evidence included both video and audio. The jurors 

were given transcripts (not marked as exhibits) and were instructed as 

follows: “The transcripts are not evidence. They won’t be going with 

you in the jury room. The evidence are the discs.”

The video introduced as People’s Exhibit 1 was played in open 

court. It begins with the victim’s car waiting at a red light at an 

intersection for approximately 25 seconds before driving straight ahead 

and then taking a left to enter the road inside a park. Immediately 

upon entering the park area, there are approximately 15 diagonal 

parking spaces to the left that are partially occupied. Harris and an

apparent companion (with a shopping cart) can be seen crossing the 

road from the right to the left side of the road a couple of cars ahead of 

the victim and stopping in an empty parking space. A few seconds 

before the video ends, Harris can be seen turning toward the victim’s 

car as the victim passes them. Within a second, the victim stops his car 

and exclaims “What the fuck is your problem.” 
4

The beginning of the video introduced as People’s Exhibit 2, 

which was also played in open court, appears to pick up around the 

time the first video stops. Someone [Harris or his companion] states “I 

don’t know what you are looking at me for” and the victim responds 

“You threw something at my car” – this is followed by someone 

appearing to say “I didn’t throw shit at your car” although what is said 

is difficult to hear over the victim’s dog barking. The victim states “get 

the fuck out of here” followed by someone (Harris or his companion) 

saying words to the effect of “you want to die today.” Harris and the 

victim continue to exchange words (including the victim calling Harris 

“a piece of shit” and telling him “you’re so fucked up”) as Harris’s

companion walks away with the shopping cart. At around the 29-

second mark, the victim slowly drives forward a very short distance 

before backing up around the 33-second mark (the beeping of the car 

going into reverse is readily audible). While not everything the victim 

mutters during this time can be heard, the victim can be heard 

muttering to himself between seconds 34 and 37, “I’m going to fucking 

run into you – I’m going to run into you” as he is backing up multiple 

car lengths. It does not appear Harris can hear these mutterings 

although whether he can hear is not completely clear from the video. 

The victim then stops and immediately starts going forward – it 

is open to debate and interpretation whether the victim was aiming his 

car at Harris or the parking spot. Harris jumps away and across the 

front of the victim’s car into a parking space and the victim stops before 

fully entering that space. After the victim stops his car, Harris 

proceeds around the front of car and disappears from the camera’s 

view. The car then goes briefly into reverse and then forward down the 
5

roadway for a few feet. At this point the video ends. As described 

below, it is alleged that Harris cut the victim’s throat when the victim 

was stopped near the parking stall but that is not discernible on the 

video (either by sounds or by the victim exclaiming as much). 

A third video, introduced into evidence as People’s Exhibit 3 but 

not played in open court, is of the victim driving a bit further forward, 

stopping his car, and calling 911. The victim states to the 911 operator 

that a “guy” cut his throat and that the person was still there “standing 

right next” to him. Nothing can be heard from Harris or any 

individuals other than the victim and 911 operator. Harris cannot be 

seen at any point during this video though at the very end of the video 

Harris’ companion can be viewed on the left walking with the shopping 

cart.

Victim’s Testimony

On the day in question, the victim drove his car to a park to take 

his dog for a walk. As he entered the park, he saw two men in the 

roadway move to the left so cars could pass them. As he drove past the

men, Harris threw a rock at the left rear of the victim’s car. The victim

stopped his car, with his foot on the brake, opened the driver’s side 

door, and yelled at Harris, “ ‘What the fuck are you doing?’ ” In 

response, Harris walked toward the victim; Harris “seemed to be 

gleeful about the whole thing in that kind of an odd, grinning smile.”

The victim was “terrified” and tried to close and lock his car door. 

There was a “tussle” with the car door: the victim (sitting in the driver’s 

seat) pulled at the car door to close it, and Harris grabbed at the 

window frame, pulling it back toward him. There was no physical 

contact between the men. The “tussle” lasted “seconds;” at some point 
6

Harris told the victim, three times, “ ‘You’re gonna die,’ ” in an angry, 

aggressive, voice.3 The victim felt threatened, like he was going to die, 

and “[a]bsolutely” believed Harris might carry out his threats. 

Speaking in a very aggressive voice, Harris also told the victim not to 

call the cops and if he did so he was going to die. The victim felt very 

threatened and was concerned for his safety. On cross-examination the 

victim confirmed he did not believe Harris would cause him significant 

harm if he called 911 but the victim was scared as he did not know 

what harm would come his way. Additionally, while the victim did not 

really believe Harris would kill him if he called the police as the victim 

did not know how Harris would kill him “other than sort of slitting my 

throat, which was as close to death I think as I’ve been.”

After a few seconds, the victim was able to get his car door closed. 

Harris did not say anything further to the victim.4 Harris then moved 

“around to the right side of [the victim’s] car. [The victim thought] he 

did. He was on the right side. [The victim] wanted to pull into the 

parking place.” The victim later testified that at some point after he 

had closed his car door, he began to drive away from where Harris was 

because he “just wanted to get away to lessen the fear of the threat.” 

When asked at what point he began driving his car toward Harris, the 

victim said after the tussle with the car door frame and Harris made 

“the threat of death” and “the threat about [the victim] reporting a 

crime.” At some point the victim started to drive his car toward Harris 

3 The victim testified that before Harris threatened him, he had 

never threatened Harris and had not said he was going to physically 

harm Harris in any way.

4 When asked if at this time in the interaction Harris said, “ ‘Okay. 

The fight’s over. I’m done,’ ” the victim replied: “No. There was no 

closure in the interaction.”
7

with the goal of pulling into a parking space. When asked if he 

intended to hit Harris, the victim said he did not know, he could not 

imagine thinking or being able to do so, and he may have been trying to 

frighten Harris as the victim did not have “a lot of ammo in my 

arsenal.” 

When asked “at the point where you accelerated or started 

driving in the direction of the Harris, why didn’t you just leave instead 

of doing that?,” the victim replied that he did not know and could not 

say “because the confrontation was ongoing. There was a conclusion to 

it, not that I was looking for any, but I don’t know. I wasn’t trying to 

win.” At the time the victim drove toward Harris, the victim felt Harris 

was still a threat to his life “[b]ecause of the conversation that he had 

with me and the words he said” and the victim had no idea what Harris 

could do.

The victim also testified that as he “was pulling forward” toward 

Harris, Harris “was dancing around” or “hopped around” from the right 

side of the car to directly in front of the car; the victim braked his car 

because he did not want to hit Harris. Harris then ran “around the 

front” of the car to the driver’s side; he “was gleeful again; that happy, 

crazy look in his face.” Harris’s expression terrified the victim. Harris 

reached into the rear window of the driver’s side (the victim did not 

know the window was down) and Harris cut the victim on his neck. 

The victim initially did not feel any pain and believed Harris had 

scratched his neck with a sharp fingernail. The victim later realized he 

was bleeding from a cut on his neck; there was blood everywhere, on his 

shirt, pants, and shoes.
8

After People’s Exhibit 2 (second video) was played, the prosecutor 

asked the victim a series of questions, eliciting what the victim heard 

and saw as the prosecutor replayed and stopped the video at certain 

second marks. The victim was asked if he heard on a portion of the 

video when “you say something about hitting Harris with this car?,” the 

victim replied: “I said to myself, ‘I’m going to run into him.’ ” The 

victim testified he did not believe Harris heard him make that 

statement because the stereo was playing and the car windows were up

except for the back rear window – the video supports this recounting.

The victim testified that 46 seconds into the video clip was the point 

when he got cut and had put his car “in reverse . . . [and] was getting 

ready to back out and go down the street.” The victim confirmed that 

“from this video it looks like [he] had braked [his] vehicle, reversed, and 

six seconds later is when [he] would have been slashed.” 

Harris withdrew his hand from inside the car and followed the 

victim as the victim drove his car forward four or five feet while calling

the police. The recording of the 911 call was played for the jury. When 

sirens could be heard in the distance, Harris walked out of the park. In 

response to the 911 call, emergency services transported the victim to a 

hospital where he received over 20 stitches to close a four-inch cut on 

his neck. The wound healed but left a scar. 

On cross-examination, the victim was asked if it was his 

“testimony today that you did not try to hit Mr. Harris with your car?” 

The victim responded, “I didn’t try to hit him with my car. I drove 

towards him, yes.” Defense counsel then asked, “So when you said 

something in your car, ‘I’m going to run him over,’ you did not mean 

that?” and the victim responded, “That was my only – I said that 
9

because it was my only personal defense, and by that time I was 

enraged.” 

After being shown a video of statements he made to the police at 

the hospital, the victim confirmed he had told the police that he had 

“accelerated to try and kill him;” that he was “going to run him down 

with my car next time I see him;” that he was “going to accidentally hit 

the accelerator instead of the brakes;” that he felt some type of fear 

when Harris said something about the victim dying; and that Harris 

had said, “ ‘If you call the police, I will kill you,’ ” so the victim 

immediately called the police. The victim did not recall making his 

statements; he was shocked at what he said, and he attributed his 

statements to being on Fentanyl for pain and recalled feeling “high” 

when he spoke with the officer. The victim also recalled testifying that 

he intended to frighten Harris when he moved his car toward him and 

that he could have instead driven forward and left the park. The victim 

also testified that he had told the prosecutor that he was trying to scare 

Harris. 

Additional Testimony

A bystander witness saw Harris as he left the park after the 

incident. He described Harris as “aggressive but happy at the same 

time,” and as Harris walked past the bystander, the bystander heard 

Harris say, “ ‘I like competition.’ ”

Shortly after the incident, a police officer was dispatched to a gas 

station (about two miles from the park) in response to a report that

Harris was in front of a gas station challenging other individuals to a 

fight. The officer saw Harris in front of the gas station and asked him 

if he had a weapon. Harris removed from his pocket an X-ACTO box 
10

cutter and placed it on the ground. The box cutter did not have a blade, 

but it was covered with dried blood where the blade would have been 

inserted into the box cutter handle. 

Prior Offense Evidence

A BART peace officer testified about an altercation or 

disagreement at a BART station that occurred the evening of

December 28, 2020. The officer and his partner found Harris “very 

agitated and confrontational, very verbally aggressive.” After Harris 

was arrested for resisting arrest and placed in a patrol car, he told one 

officer that the officer was going to die, Harris was going to kill him,

and the officer was lucky Harris did not kill him at that point in time. 

Harris’s voice tone was very loud, and he was agitated, frustrated, and 

angry. On several occasions throughout Harris’s contact initially with 

the officers and after Harris was placed in the patrol car, Harris asked 

one or the other officer to fight him.

DISCUSSION

The trial court did not give an instruction allowing the jury to 

consider convicting Harris of attempted voluntary manslaughter based 

on heat of passion, a lesser included offense of attempted murder. It 

refused the proposed instruction on the basis there was “no evidence of 

heat of passion.” We agree with Harris that the failure to provide the 

instruction was prejudicial error. 

I. Heat of Passion Theory of Attempted Voluntary Manslaughter

Harris was charged with attempted murder, which requires “the 

specific intent to kill and the commission of a direct but ineffectual act 

toward accomplishing the intended killing. [Citation.] Attempted 

murder requires express malice, that is, the assailant either desires the 
11

victim’s death, or knows to a substantial certainty that the victim’s 

death will occur.” (People v. Booker (2011) 51 Cal.4th 141, 177–178.) 

However, an attempt to kill while acting “in the heat of passion –

even if exercising a sufficient ‘measure of thought . . . to form . . . an 

intent to kill’ – [results in] ‘a mental state that precludes the formation 

of malice.’ ” (People v. Millbrook (2014) 222 Cal.App.4th 1122, 1136–

1137 (Millbrook), quoting People v. Beltran (2013) 56 Cal.4th 935, 942 

(Beltran); see § 192, subd. (a) [“[m]anslaughter is the unlawful killing of 

a human being without malice;” “[i]t is of three kinds: (a) Voluntary –

upon a sudden quarrel or heat of passion”].) Simply put, heat of 

passion reduces “ ‘an intentional, unlawful killing from murder to 

voluntary manslaughter “by negating the element of malice that 

otherwise adheres in such a homicide.” ’ ” (People v. Schuller (2023) __ 

Cal.5th __ [2023 Cal. Lexis 4520 at p.*21] (Schuller), quoting People v. 

Rios (2000) 23 Cal.4th 450, 461, quoting People v. Breverman (1998) 19 

Cal.4th 142, 154 (Breverman)

5; see People v Van Ronk (1985) 171 

Cal.App.3d 818, 824–825 (Van Ronk) [“[t]here is nothing illogical or 

absurd in a finding that a person who unsuccessfully attempted to kill 

another did so with the intent to kill which was formed in a heat of 

passion;” “[u]nder those circumstances, the less culpable person is 

guilty of attempted voluntary manslaughter rather than attempted 

murder”].) 

Heat of passion is “a state of mind caused by legally sufficient 

provocation that causes a person to act, not out of rational thought but 

out of unconsidered reaction to the provocation.” (Beltran, supra, 56 

5 Breverman was disapproved on another ground in Schuller, 

supra, __ Cal.5th __ [2023 Cal. Lexis 4520 at p.*36, fn. 7].
12

Cal.4th at p. 942.) This theory of manslaughter has both an objective 

and a subjective component. To satisfy the objective, also known as 

“reasonable person,” element, heat of passion must be due to verbal or 

physical provocation that would cause an ordinary person of average 

disposition to act rashly or without due deliberation and reflection. To 

satisfy the subjective element, the defendant must have acted under 

the actual influence of the provocation. “ ‘ “However, if sufficient time 

has elapsed between the provocation and the fatal blow for passion to 

subside and reason to return, the killing is not voluntary 

manslaughter.” ’ ” (People v. Moye (2009) 47 Cal.4th 537, 549–550 

(Moye).) 

“[O]n appeal we employ a de novo standard of review and 

independently determine whether an instruction on the lesser included

offense of [attempted voluntary manslaughter based on the heat of 

passion theory] should have been given.” (People v. Manriquez (2005) 

37 Cal.4th 547, 584.) In so doing, we view the evidence in the light 

most favorable to the defendant, we do not evaluate the credibility of 

the witnesses, and we may find substantial evidence “even in the face 

of inconsistencies presented by the defense itself.” (Breverman, supra, 

19 Cal.4th at pp. 162–163; see People v. Barton (1995) 12 Cal.4th 186, 

196 (Barton) [a “jury’s truth-ascertainment function” is impaired unless 

it is given “the opportunity to decide whether the defendant is guilty of 

a lesser included offense established by the evidence”]; id. at p. 203 

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

and defense have chosen to focus on certain theories;’ ” “[t]he trial court 

must instruct on lesser included offenses when there is substantial 
13

evidence to support the instruction, regardless of the theories of the 

case proffered by the parties”].) 

II. Verdict is not Inconsistent with Heat of Passion Jury 

Instruction 

Despite the Attorney General’s contentions to the contrary, there 

is nothing in the jury verdict inconsistent with an instruction based on 

heat of passion. Although the jury must have found Harris intended to 

kill (a prerequisite for a conviction of attempted murder), that finding 

does not rule out the possibility that he acted in the heat of passion. 

(See Beltran, supra, 56 Cal.4th at p. 942; see Von Ronk, supra, 171 

Cal.App.3d at pp. 824–825 [nothing illogical or absurd in a finding that 

a person who unsuccessfully attempted to kill another did so with the 

intent to kill which was formed in a heat of passion].)

This possibility was also not ruled out by the jury’s rejection of 

the two self-defense theories, reasonable or imperfect self-defense, upon 

which it was instructed. Indeed, “ ‘in the usual case,’ ” a heat-ofpassion instruction “ ‘supplements the self-defense instruction,’ ” in 

that “ ‘even though the defense of self-defense fails, as it might for 

excessive retaliation by the defendant, the jury might still find the 

original [provocation] sufficient to constitute [heat of passion], which 

would preclude a finding of malice aforethought and reduce the crime 

to manslaughter.’ ” (People v. St. Martin (1970) 1 Cal.3d 524, 530–531; 

see Breverman, supra, 19 Cal.4th at pp. 148, 162–164 [trial court erred 

in not giving heat-of-passion instruction where jury was instructed on 

both theories of self-defense]; Barton, supra, 12 Cal.4th at pp. 202–203 

[sufficient evidence supported giving both heat-of-passion and 

imperfect self-defense instructions]; People v. Thomas (2013) 218 
14

Cal.App.4th 630, 634-635, 639, 645 (Thomas) [while evidence might fit 

better with imperfect self-defense, trial court erred by not giving heatof-passion instruction where defendant had a heated argument with 

victim and victim’s friends, one of the friends punched defendant, 

defendant went to his car to retrieve a gun, defendant’s father tried to 

calm him down, and when victim then approached defendant, 

defendant shot victim believing victim was trying to get the rifle].)

III. Heat of Passion Instruction was Warranted

An instruction on heat of passion is warranted where there is 

substantial evidence to support the requisite objective and subjective 

components: (1) the defendant’s passion was due to a legally sufficient 

provocation by the victim that would cause an ordinary person of 

average disposition to act rashly and without deliberation and 

reflection; and (2) the defendant acted while under the actual influence 

of a strong passion induced by adequate provocation. (See Millbrook, 

supra, 122 Cal.App.4th at p. 1139.) “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.) “ ‘However, if sufficient time has elapsed between the 

provocation and the fatal blow for passion to subside and reason to 

return, the [attempted] killing is not [attempted] voluntary 

manslaughter.’ ” (Breverman, supra, 19 Cal.4th at p. 163; see People v. 

Gingell (1931) 211 Cal. 532, 545 [“the ‘cooling time’ to be considered [i]s 

the time within which an ordinarily reasonable [person] would cool 

under like circumstances”].) 
15

We find there was substantial evidence to support the 

instruction’s objective component – a legally sufficient provocative act. 

The evidence shows that immediately before Harris cut the victim’s 

neck the victim had backed up and then nearly hit Harris with his car. 

The victim had no barrier to simply continuing to drive away (rather 

than backing up) and his testimony of being “terrified” is belied by the 

decision not to drive away. A jury might not have ultimately been 

convinced that Harris acted in the heat of passion, but the evidence 

would allow it to find that after the initial encounter it was the victim 

who provoked Harris by backing up his car and driving it toward 

Harris.

We find unavailing the Attorney General’s argument that the 

victim’s act of driving his car toward Harris at most arose to the level of 

“simple assault” and hence was not sufficient to arouse the passions of 

an ordinarily reasonable person to cause an attempt at the victim’s life. 

“[T]here is no way that driving a car toward a person can constitute 

simple assault but not assault with a deadly weapon or force likely to 

cause great bodily injury.” (People v. Golde (2008) 163 Cal.App.4th 101, 

117.) Further, the Attorney General’s argument – which is focused on 

whether an ordinary person of average disposition would be moved to 

attempt to kill the victim “focuses on the wrong thing. The proper focus 

is placed on [Harris’s] state of mind, not on his particular act. To be 

adequate, the provocation must be one that would cause an emotion so 

intense that an ordinary person would simply react, without 

reflection. . . . [T]he anger or other passion must be so strong that the 

defendant’s reaction bypassed his thought process to such an extent 

that judgment could not and did not intervene. Framed another way, 
16

provocation is not evaluated by whether the average person would act 

in a certain way: to kill. Instead, the question is whether the average 

person would react in a certain way: with his reason and judgment 

obscured.” (Beltran, supra, 56 Cal.4th at p. 949.) 

We also find there was substantial evidence to support the 

instruction’s subjective component – that Harris acted under heat of 

passion caused by the victim’s provocative act. “As . . . explained in 

People v. Jones (1911) 160 Cal. 358, 368 . . ., ‘it is not a matter of law 

but a matter of fact for the jury in each case to determine under the 

circumstances of the case whether the assault or whether the blow, or 

whether the indignity or whether the affront, or whatever the act may 

be, was such as is naturally calculated to arouse the passions and so 

lessen the degree of the offense by relieving it from the element of 

malice.’ ” (Beltran, supra, 56 Cal.4th at pp. 950–951.) While the jury 

concluded Harris did not have an actual fear that he was in imminent 

danger of death or great bodily injury, under proper instructions it 

could have found Harris acted rashly and without reflection in reaction 

to the victim’s driving his car at him, which was preceded by an 

exchange of aggressive words between Harris and the victim. (See 

Thomas, supra, 218 Cal.App.4th at p. 645 [although facts might fit 

more precisely with a homicide mitigated by imperfect self-defense, a 

heat of passion instruction was appropriate where evidence supported 

that defendant shot the victim when his passion was aroused and his 

reason was obscured due to a sudden quarrel].) 

Moreover, the Attorney General does not address whether 

sufficient time elapsed for a reasonable person’s passion to “ ‘cool off’ ” 

and for reason or judgment to be restored. (Beltran, supra, 56 Cal.4th 
17

at p. 951.) It cannot be said as a matter of law that a few seconds (the 

time between the car going toward Harris and the criminal act) was a 

sufficient cooling off period for a reasonably ordinary person’s passion 

to subside and reason or judgment restored. While Harris’s facial 

appearance and statement after the incident is circumstantial evidence 

of his earlier state of mind it does not refute as a matter of law a claim 

that he was acting under a heat of passion. A rational jury could find 

that under the circumstances faced by Harris, a reasonable person’s 

“intense and high-wrought emotions aroused by the initial threat” of 

the victim’s conduct had not had time to cool or subside before acting 

rashly and without reflection. (Breverman, supra, 19 Cal.4th at p. 164.) 

IV. Failure to Instruct was Prejudicial Error

We conclude the trial court’s refusal to instruct on heat of passion 

was not harmless under the standard set forth in Chapman v. 

California (1967) 386 U.S. 18, 24 (Chapman). (See Schuller, supra, ___ 

Cal.5th __ [2023 Cal. Lexis 4520 at p.*36, fn. 7] [when the record 

contains substantial evidence of heat of passion, the failure to instruct 

on that theory is subject to review under the Chapman standard].) As 

the court explained in Schuller, “ ‘[a] jury misinstruction that relieves 

the prosecution of its burden to prove an element of the crime – by 

either misdescribing the element or omitting it entirely – violates [the 

federal Constitution].’ [Citations.] When [heat of passion] is at issue, 

the malice element of murder requires the People to show the absence 

of that circumstance beyond a reasonable doubt. [Citation.] Thus, 

when there is substantial evidence to support the theory, the failure to 

instruct on [heat of passion] amounts to an incomplete element of 

murder, namely malice. In the absence of such an instruction, jurors 
18

would have no reason to conclude they cannot find malice (and thus 

cannot return a verdict of murder) if they harbor a reasonable doubt as 

to whether the defendant [acted in heat of passion]. Because this form 

of misinstruction precludes the jury from making a finding on a factual 

issue that is necessary to establish the element of malice, it qualifies as 

federal error.” (Schuller, supra, __ Cal.5th __ [2023 Cal. Lexis 4520 at 

pp.**3-4].) 

Having found the trial court here erred in refusing to instruct the 

jury on heat of passion, under Chapman, we make “ ‘a thorough 

examination of the record.’ ” (Schuller, supra, __ Cal.5th __ [2023 Cal. 

Lexis 4520 at p.*39], quoting Neder v. United States (1999) 527 U.S. 1, 

19 (Neder).) “Unless, based on this examination, we conclude ‘beyond a 

reasonable doubt that the error complained of did not contribute to the 

verdict obtained,’ we reverse the conviction.” (People v. Brown (2023) 

14 Cal.5th 453, 473, quoting Chapman, supra, 386 U.S. at p. 24, and 

citing Neder, at p. 15.) 

Here, our examination of the record shows sufficient (but not 

overwhelming) evidence to support the attempted murder charge, but, 

as we have also determined, there was sufficient evidence to support an 

instruction on heat of passion. Because, as discussed at length ante, a 

reasonable jury could have concluded Harris acted pursuant to heat of 

passion and therefore lacked the requisite malice for an attempted 

murder conviction, we cannot conclude “ ‘beyond a reasonable doubt 

that the error complained of did not contribute to the verdict 

obtained.’ ” (Brown, at p. 473; see Schuller, supra, __ Cal.5th ___ [2023 

Cal. Lexis 4520 at pp.*42-43] [if the appellate court believes an 

instruction on imperfect self-defense was warranted because there was 
19

sufficient evidence from which a reasonable jury could find in 

defendant’s favor on question of imperfect self-defense, “the court could 

not then, consistent with Chapman, go on to find that the error was 

nevertheless harmless simply because the evidence against imperfect 

self-defense was so overwhelming that no reasonable jury could have 

possibly found in [defendant’s] favor on that issue”].) 

The Attorney General’s reliance on Moye, supra, 47 Cal.4th 537, 

to argue harmless error is misplaced as the Supreme Court’s decision is 

premised on the facts before it in that case, facts that do not align with 

those in the case before us. In Moye, “[o]nce the jury rejected 

defendant’s claims of reasonable and imperfect 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 self-defense.” (Moye, supra, 47 Cal.4th at p. 557.) 

The court in Millbrook explained as follows: “The only evidence 

supporting a heat-of-passion instruction in Moye was the defendant’s 

own testimony that he acted in self-defense. Thus, in rejecting the selfdefense argument, the jury in Moye necessarily rejected the only 

evidence that would have supported a heat-of-passion instruction. . . . 

Moye does not hold that a failure to instruct on heat of passion can 

never be prejudicial when a jury rejects a finding of self-defense, and 

neither will we.” (Millbrook, supra, 222 Cal.App.4th at p. 1148.)

As always, we must analyze the facts in the case before us. 

Unlike in Moye, the jury here did not necessarily reject all evidence 
20

supporting a heat of passion instruction by refusing to find that Harris 

acted in unreasonable self-defense. The standard for unreasonable selfdefense is whether the defendant had an honest but unreasonable 

belief that they were in “imminent danger of being killed or suffering 

great bodily injury” (CALCRIM No. 571), not whether their reason was 

obscured by passion that negated malice. While the evidence 

concerning Harris’s state of mind was relevant to both unreasonable 

self-defense and heat of passion, the jury might well have concluded 

that while Harris was not in fear of his life or suffering great bodily 

injury, nonetheless he acted in a heat of passion when he cut the 

victim’s neck. Harris was entitled to have the jury “ ‘consider the full 

range of possible verdicts’ included in the charge. . . . [E]very lesser 

included offense, or theory thereof, which is supported by the evidence 

must be presented to the jury.” (Breverman, supra,19 Cal.4th at p. 155; 

italics omitted.) Even though the jury was allowed to consider whether 

Harris acted in imperfect self-defense, “nothing in the court’s 

instructions advised the jury it could consider whether [Harris’s] 

passion was aroused or his reason obscured on account of” the victim’s 

conduct in driving his car toward Harris. (Thomas, supra, 218 

Cal.App.4th at p. 646.) 

In sum, for the reasons stated, the conviction for attempted 

murder cannot stand as we cannot say, beyond a reasonable doubt, that 

the omission of a heat-of-passion instruction did not affect the jury’s

verdict.

6

6 We recognize that in their briefs, filed before our Supreme 

Court’s opinion in Schuller, the parties agreed the proper standard of 

review was under People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). 

Given the Schuller opinion, we do not employ the Watson standard of 
21

V. Remedy 

“ ‘An appellate court is not restricted to the remedies of affirming 

or reversing a 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 (Edwards).) 

Harris does not challenge the sufficiency of the evidence to 

support the jury’s implicit finding that he harbored the intent to kill 

the victim, and concedes the People are entitled to retry him on that 

charge should they so choose. Harris asks us to offer the People the 

alternative option of accepting a modification to the judgment to reflect 

Harris’s conviction for attempted voluntary manslaughter, thereby 

obviating the need for a retrial. The People have not responded to this 

request in their brief.

The People are entitled to retry Harris, or they may be satisfied 

with a conviction of attempted voluntary manslaughter. Because we do 

not know whether the People would prefer to retry Harris or would be 

satisfied with a conviction of attempted voluntary manslaughter, our 

review. We note that if Watson were applicable, we would conclude 

reversal was required because there is “ ‘ “a reasonable chance, more 

than an abstract possibility” ’ ” that the jury would have come to a 

different verdict had the court given a heat-of-passion instruction. 

(Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1050; see 

Millbrook, supra, 222 Cal.App.4th at pp. 1146–1147 [defendant shot a 

fellow guest at a house party during a heated exchange; the court found 

prejudicial error under Watson in failing to give a heat of passion 

instruction where evidence conflicted as to what prompted the 

defendant to shoot the victim and as to the defendant’s state of mind

when he fired the shot].) 
22

disposition preserves both opinions. (See Edwards, supra, 39 Cal.3d at 

p. 118.) 

DISPOSITION

Harris’s convictions for elder abuse, assault with a deadly or 

dangerous weapon (and related enhancement), dissuasion of a witness, 

and criminal threats are affirmed. 

The conviction for attempted murder is reversed. The People 

shall have 60 days from issuance of the remittitur to refile an 

attempted murder charge. If the People do not do so, the trial court 

shall proceed as if the remittitur constituted a modification of the 

judgment to reflect a conviction of attempted voluntary manslaughter 

and shall resentence Harris accordingly. At any resentencing hearing 

for attempted voluntary manslaughter on the modified judgment, the 

trial court shall consider the enhancements for personal use of a deadly 

or dangerous weapon and personal infliction of great bodily injury on a 

person 70 years of age or older as alleged in the information and proven 

at trial. 
23

_________________________

Petrou, J.

WE CONCUR:

_________________________

Fujisaki, Acting P.J.

_________________________

Rodríguez, J.

A164007/People v. Harris