
    [No. A134382.
    First Dist., Div. Four.
    Jan. 8, 2014.]
    THE PEOPLE, Plaintiff and Respondent, v. JEREMY L. MILLBROOK, Defendant and Appellant.
    [CERTIFIED FOR PARTIAL PUBLICATION]
    
      Counsel
    Linda M. Leavitt, under appointment by the Court of Appeal, for Defendant and Appellant.
    Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Assistant Attorney General, René A. Chacón and Bruce Ortega, Deputy Attorneys General, for Plaintiff and Respondent.
    
      
      Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is certified for publication with the exception of part II. C., D., and E.
    
   Opinion

HUMES, J.

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. It also found true various enhancements that are not directly at issue in this appeal. The jury was unable, however, to reach a verdict on an 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 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 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. We reject Millbrook’s remaining claims and otherwise affirm.

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 10:00 and 10:30 p.m. At first, the two men were in the garage, where most of the Target employees had gathered. Six to 10 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.”

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.

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 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.

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. 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 10 minutes after his argument with Diaz, another friend of Placencia, a woman later identified as Bianca Velez, entered the kitchen 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 fife.” 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 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 from the fight with Velez, and Manoa’s Mends were “closing in” to find out what had happened. Millbrook testified that he felt “surrounded.” Describing his mental state, he said, “[IJt’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 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-tum 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.

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 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. 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 “starring] 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.

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.

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 self-defense. 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 [56 Cal.Rptr.2d 142, 921 P.2d 1].) 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.

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, “ ‘[attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.’ ” (People v. Houston (2012) 54 Cal.4th 1186, 1217 [144 Cal.Rptr.3d 716, 281 P.3d 799].)

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 [157 Cal.Rptr.3d 503, 301 P.3d 1120] (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 [245 Cal.Rptr. 61]; accord, People v. Gutierrez (2003) 112 Cal.App.4th 704, 708-709 [5 Cal.Rptr.3d 256].)

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 [77 Cal.Rptr.2d 870, 960 P.2d 1094] (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 [74 Cal.Rptr.3d 416] [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 [94 Cal.Rptr.2d 396, 996 P.2d 46]), 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 [80 Cal.Rptr.3d 473].)

For the duty to instruct on a lesser included offense to arise, there must be “ ‘substantial evidence’ [citation], ‘ “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, italics omitted.) Evidence is substantial if “a reasonable jury could find [it] persuasive.” (People v. Barton (1995) 12 Cal.4th 186, 201, fn. 8 [47 Cal.Rptr.2d 569, 906 P.2d 531] (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.) “[Substantial 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.” (Breverman, at p. 154; see Barton, at pp. 196, 203 [a “jury’s truth-ascertainment 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 state of mind 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 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 [280 Cal.Rptr. 631, 809 P.2d 290].) 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 [83 Cal.Rptr. 166, 463 P.2d 390]; 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 heat-of-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, 328 [185 Cal.Rptr. 436, 650 P.2d 311].) 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 [93 P.2d 121] (dis. opn. of Houser, J.) [“[h]eat of passion may be produced by fear as well as by rage . . . ,” and “[provocation sufficient to produce a heat of passion . . . may, under slightly varied circumstances, justify a person in killing in self-defense”].)

Having concluded that nothing in the jury’s verdict is inconsistent with the need for a heat-of-passion instruction, 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 [98 Cal.Rptr.3d 113, 213 P.3d 652] (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 “ ‘ “[vjiolent, intense, high-wrought or enthusiastic emotion” ’ ” [citations] other than revenge.’ ” (People v. Lasko (2000) 23 Cal.4th 101, 108 [96 Cal.Rptr.2d 441, 999 P.2d 666].)

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 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 [164 P. 1121] [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 [45 Cal.Rptr.3d 910] [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 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. 939, 938, original italics.)

“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 [54 Cal.Rptr.2d 608]; see 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 heat-of-passion instruction over his objection. (Barton, supra, 12 Cal.4th at pp. 190, 201.) Our Supreme Court disagreed, concluding that “[t]he record contained] 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 “[streaming 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 appellate 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 [160 Cal.Rptr.3d 468], 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.)

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 (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 [137 Cal.Rptr.3d 117, 269 P.3d 543] [gang-related insults]; People v. Avila (2009) 46 Cal.4th 680, 706 [94 Cal.Rptr.3d 699, 208 P.3d 634] [same]; People v. Manriquez (2005) 37 Cal.4th 547, 585-586 [36 Cal.Rptr.3d 340, 123 P.3d 614] [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 [64 Cal.Rptr.2d 282] [smirking, taunting, and name calling]; but see People v. McCowan (1986) 182 Cal.App.3d 1, 15 [227 Cal.Rptr. 23] [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 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 [17 L.Ed.2d 705, 87 S.Ct. 824] (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 [299 P.2d 243] (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. (Supreme Ct. mins., People v. Thomas, Aug. 29, 2012, S203557, p. 1518.)

We begin with Breverman. In that case, our Supreme Court applied the Watson standard (Watson, supra, 46 Cal.2d 818, 299 P.2d 243) to assess the trial court’s failure to give sua sponte a heat-of-passion instruction in a noncapital case. (Breverman, supra, 19 Cal.4th at pp. 148-149, 165.) In broad language, the court “rejected] 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 [65 L.Ed.2d 392, 100 S.Ct. 2382] (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 “suggested the United States Supreme Court’s] 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.” (Breverman, 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 p. 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 People v. Lasko, supra, 23 Cal.4th at p. 113 [explaining that Breverman “declined to consider whether [the] error violated the federal Constitution by giving the jury an incomplete definition of malice”].)

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 [44 L.Ed.2d 508, 95 S.Ct. 1881] (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 federal constitutional error.” (Supreme Ct. mins., People v. Thomas, Aug. 29, 2012, S203557, p. 1518.) 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. (Supreme Ct. mins., People v. Thomas, Oct. 30, 2013, S213262, p. 1794.)

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 page 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. 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 [48 Cal.Rptr.3d 1, 141 P.3d 135] [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 (Watson, supra, 46 Cal.2d 818 [299 P.2d 243]).

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 [153 Cal.Rptr.3d 519, 295 P.3d 903].) 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 state of mind was when he fired the shot. While there was little evidence that Manoa had a gun or that Millbrook acted in self-defense, 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. Aoid 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 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 self-defense.” (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 heat-of-passion instruction in Moye was the defendant’s own testimony that he acted in self-defense. 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-of-passion 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 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 hone, 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.

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 if sufficient evidence was presented in the first trial to support it. (United States v. DiFrancesco (1980) 449 U.S. 117, 131 [66 L.Ed.2d 328, 101 S.Ct. 426]; People v. Hernandez (2003) 30 Cal.4th 1, 6-7 [131 Cal.Rptr.2d 514, 64 P.3d 800].) 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 [131 Cal.Rptr.3d 225, 261 P.3d 243].) 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.)

“[IJntent 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 [37 Cal.Rptr.3d 163, 124 P.3d 730].) 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 [51 Cal.Rptr.2d 770, 913 P.2d 980].)

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 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 self-defense, 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 [122 Cal.Rptr.3d 117, 248 P.3d 651] [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 [47 Cal.Rptr.3d 420, 140 P.3d 736] [“ ‘[i]t is axiomatic that 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 [33 Cal.Rptr.3d 451, 118 P.3d 496].) 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 [129 Cal.Rptr.3d 91, 257 P.3d 703]) 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 [216 Cal.Rptr. 397, 702 P.2d 555]; see Thomas, supra, 218 Cal.App.4th at p. 647; § 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.-E.

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 timeframe, the judgment shall be modified to reflect 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.

Reardon, Acting P. J., and Rivera, J., concurred. 
      
       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.
     
      
       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. (aj) and infliction of great bodily injury (§ 12022.7, subd. (a)).
     
      
       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.
     
      
       Millbrook, who admitted to “fairly regularly” smoking marijuana, estimated that on a scale of one to 10, 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.
     
      
       Diaz did not testify at trial, and Millbrook did not mention this incident in his testimony.
     
      
       Cesena, the only other defense witness who attended the party, did not see the shooting.
     
      
       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.
     
      
       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 & citations omitted.) This doctrine is inapplicable here because there is no indication in the record that Millbrook objected to a heat-of-passion instruction being given.
     
      
       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.)
     
      
      
        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].)
     
      
       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. (Beltran, at p. 953; see Thomas, supra, 218 Cal.App.4th at pp. 643-644 [distinguishing Beltran].)
      
     
      
       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.
     
      
       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.
     
      
      See footnote, ante, page 1122.
     