People v. Adams CA2/7 ( 2023 )

Filed 4/17/23 P. v. Adams CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
THE PEOPLE, B316494
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. MA064049)
v.
GARRETT ADAMS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Lisa Strassner, Temporary Judge. Affirmed.
Law Office of Elizabeth K. Horowitz, Inc. and Elizabeth K.
Horowitz, under appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Noah P. Hill, Supervising Deputy
Attorney General, and Stephanie A. Miyoshi, Deputy Attorney
General, for Plaintiff and Respondent.
INTRODUCTION
This appeal, Garrett Adams’s second, is from a judgment
after a jury convicted him (a second time) of first degree mayhem
felony murder. In his prior appeal, Adams argued, among other
things, that substantial evidence did not support the jury’s
finding he specifically intended to commit mayhem and that the
trial court’s instruction on mayhem felony murder was erroneous.
We reversed his murder conviction because, although there was
substantial evidence Adams specifically intended to commit
mayhem, the trial court did not instruct the jury that the People
had to prove Adams had the specific intent to disable or disfigure
his victim. (People v. Adams (Aug. 29, 2019, B284753 [nonpub.
opn.] (Adams I).) The People retried Adams, and the jury again
convicted him of first degree mayhem felony murder. The trial
court sentenced Adams to a prison term of 26 years to life.
In this appeal Adams argues (1) the trial court erred in
giving an instruction on felony murder that was based on the
wrong underlying felony, (2) the evidence did not support an
instruction on mayhem felony murder, (3) the court erred in
failing to give lesser included instructions on second degree
murder and voluntary manslaughter, (4) the prosecutor
committed misconduct in his closing argument by diluting the
reasonable doubt standard, and (5) the cumulative effect of these
errors deprived him of a fair trial. Finding no prejudicial or
cumulative error, we affirm.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. A Jury Convicts Adams of Felony Murder
After several drinks one evening in August 2014, Adams
and his girlfriend, Bernadette Marquez, began fighting. Adams’s
brother Cameron Adams (Cameron) and Cameron’s friend,
Charles Briggs, both of whom had also been drinking, arrived at
Adams’s house and argued with Adams. The three men wrestled
outside and hit each other; when the fighting stopped, Adams
went inside the house. A few minutes later, Adams came out of
the house with a compound bow1 and several razor-tip hunting
arrows. After a brief exchange of words between Adams
(threatening) and Briggs (taunting), Adams shot Briggs in his
torso with an arrow. Briggs stumbled down the street, collapsed,
and later died at the hospital. (Adams I, supra, B284753.)
A jury acquitted Adams of first degree premeditated
murder, but convicted him of first degree mayhem felony murder
(Pen. Code, § 189, subd. (a))2 and found true allegations Adams
personally used a deadly or dangerous weapon (§ 12022,
1 A compound bow is a bow that has cams (a system of
wheels and cables) that attach the string to the curved part of the
bow. The cams allow the archer to use less force when pulling
the string back, which in turn allows the archer to “hold on target
a little longer” and improve accuracy. (See Parker Compound
Bows, Inc. v. Hunter’s Manufacturing Company, Inc. (W.D.Va.,
Feb. 12, 2016, No. 5:14CV00004) 2016 WL 617464, p. 1
[“compound bows have wheels at the opposite ends of the bow
that receive the bowstring”].)
2 The jury also acquitted Adams of other offenses not
relevant to this appeal. Statutory references are to the Penal
Code.
3
subd. (b)(1)). The trial court sentenced Adams to a prison term of
25 years to life on his first degree mayhem felony murder
conviction, plus one year for the weapon enhancement. (Adams I,
supra, B284753.)
B. Adams Appeals, and We Reverse
Adams appealed, contending that substantial evidence did
not support the jury’s finding he specifically intended to maim
Briggs and that the trial court erred in failing to instruct the jury
the People had to prove he had the specific intent to maim. We
disagreed with Adams’s first contention, but agreed with his
second. We explained that, although mayhem as defined in
section 203 “is a general intent crime,” felony murder based on
mayhem, like aggravated mayhem (§ 205), “is a specific intent
crime.” Thus, we held, the trial court should have instructed the
jury that the People had to prove Adams had the specific intent to
maim. (Adams I, supra, B284753.)
We observed that the pattern instruction for aggravated
mayhem, CALCRIM No. 800, states as one of the elements of that
crime the People must prove that, “‘when the defendant acted,
(he/she) intended to (permanently disable or disfigure the other
person/ [or] deprive the other person of a limb, organ, or part of
(his/her) body).’” We pointed out that the trial court did not give
this or any other instruction requiring the jury to find Adams had
“the specific intent to commit the underlying felony.” Because we
concluded the instructional error was not harmless, we reversed
the judgment. (Adams I, supra, B284753.)
4
C. A Jury Again Convicts Adams of Felony Murder
The People retried Adams. In a second amended
information, the People charged Adams with one count of murder
(§ 187, subd. (a)) and alleged he personally used a deadly or
dangerous weapon, within the meaning of section 12022,
subdivision (b)(1). As she had in the first trial, Marquez testified
about the events that led to Briggs’s death. Marquez stated
Adams had been drinking that day and wanted to continue
drinking when he got home. Marquez stated that she argued
with Adams and that, after a heated exchange, Adams threw a
glass candlestick at her, which hit her back before breaking on
the floor. She also stated that Adams left the house for three or
four hours and that, while he was gone, Cameron called Adams’s
cell phone. Marquez said she answered it and told Cameron
“what had happened.” Marquez testified that, when Adams
returned to the house, she and Adams continued to argue, that
Marquez “became violent” and put Adams in a headlock, and that
Adams became “really upset,” choked her, and hit her in the face.
Marquez testified that when Cameron arrived at the house
he pulled Adams off her and told him to stop. Marquez said she
ran outside the house and saw Briggs standing in the front yard.
Marquez stated that Briggs, who also appeared to have been
drinking, asked Marquez if she was hurt and used light from his
cell phone to check her face for injuries. Marquez said that a
minute or two later Adams and Cameron came out of the house
and that Adams was angry and upset Briggs was there. Marquez
stated that all three men yelled at each other and began to
wrestle on the ground and that, as Adams and Briggs fought,
Cameron tried to separate them.
5
Meanwhile, Marquez testified, the dogs Adams and
Marquez owned were barking at Briggs, and Briggs said, “I’m
going to kill those dogs if they bite me.” Marquez stated she went
to “contain” the dogs, Adams went inside the house, and Briggs
and Cameron stayed outside in the front yard, near the sidewalk.
Marquez said she heard Briggs say to Cameron, “I didn’t sign up
for this” and “Man, why did you have me come here?”
Marquez testified Adams came back outside five to 10
minutes later holding his compound bow. Marquez stated she
hid between two cars because she was afraid Adams would shoot
her with the bow. According to Marquez, Adams aimed the bow,
which had an arrow notched on the string, at Briggs (and
Cameron, who stood between Adams and Briggs) and said to
Briggs, “You need to leave now. You’d better leave, or I’ll shoot
you.” Cameron told his brother, “Put that down. Put it away,”
and Briggs said, “You’re not going to shoot me.” Marquez said
Briggs backed up slowly into the street, Adams moved toward
Briggs, and Cameron said to Adams, “Stop. Please don’t. You’re
going to go to jail.” Briggs said to Adams, “What? Are you going
to shoot me? Do you think I’m scared to die? Shoot it. Just let it
go.” Marquez testified Adams adjusted his bow, aimed it at
Briggs, pulled back the string, and told Cameron to move out of
the way. Marquez said that by this point the three men were
several houses down the street, with Briggs walking backward,
Adams following him, and Cameron staying between the two
men.
A neighbor testified she saw Briggs retreating down the
street, trying to “defuse the situation,” while Adams, who
appeared “very angry,” yelled at Briggs as Adams moved toward
him with his bow and arrow. Another neighbor testified
6
Cameron said to Adams, “Just calm down. It’s not worth it. Just
get back inside.” The second neighbor recalled that the three
men stopped shouting at each other, that it appeared “things had
calmed down,” and that “all the parties were going to go their
separate ways,” with Briggs “still walking backward away” from
Adams. But then, the neighbor said, Adams raised his bow,
which had an arrow ready, pulled back the string, and fired “a
straight shot” at Briggs. According to the neighbor, Adams said
to Briggs, “I told you, homie. That’s what you get,” and Cameron
said, “What the fuck. Call the cops.”
A videotape of the incident showed that, immediately after
Adams shot Briggs, Briggs screamed and asked Adams, “Why’d
you do that?” Adams responded, “That’s what you get, homie!”
Briggs cried for help, and Adams said, “I’m about to shoot you
with my gun, homie, you better run.”
A registered nurse testified he happened to be driving in
the neighborhood and saw Briggs approach him and collapse.
The nurse stated Briggs had a “penetrating chest wound” and
was bleeding profusely. The nurse rendered aid until the police
arrived. The nurse, also a recreational hunter, said the arrow,
which was sticking out of Briggs’s back, had a “broad head” tip
used by hunters.
As Briggs lay in the street, Adams ran to his next-door
neighbor’s house, knocked on the door, and said, “Call the cops.
I shot the nigger.” Adams said he and Marquez “had a home
invasion.” Marquez testified Adams gave her the bow and told
her to “go put this somewhere” and to “stick with” the story “it
was a home invasion.”
An archery expert testified about the mechanics of a
compound bow, which was what he also used for hunting and
7
target practice. The expert said the cams on a compound bow
have a “let-off” point where, once the archer pulls back using a
certain amount of force, the bow will “let off” and allow the archer
to continue pulling on the string, but using, for example, only half
the amount of force, which allows the archer to “hold on target a
little longer.” In the expert’s opinion, someone striving to “be as
accurate as possible” would choose a compound bow. The expert
identified the arrow Adams used to kill Briggs as a broad head
arrow and explained broad head arrows are very sharp and used
for hunting, where the hunter aims for a major blood vessel, the
heart, or the lungs, so that the animal will “bleed out.” The
expert stated it was “common knowledge among people who hunt
with bows” that such an arrow would cause significant organ
damage if it hit a human being or other animal.
Adams told a sheriff’s deputy he was an “avid hunter” who
used a bow and arrow and a rifle. Adams said he had not
purchased meat in more than seven years because “he hunted for
his food.” Adams told a detective that when he hunts he focuses
on his prey’s “vitals” to maximize the animal’s bleeding. Adams
stated, “That one shot is very important because you worked—
hiked for miles just for that one shot.”
Finally, the parties stipulated to several facts. They were:
Sheriff’s deputies found the compound bow and arrows in the
garage and a rifle in the closet of the master bedroom;3 law
enforcement personnel tested the compound bow and found it “to
be fully functional”; the compound bow Adams used to kill Briggs
had a peak draw weight of 50 pounds and, at the let-off point, the
3 A forensic identification specialist testified he found four
arrows in a quiver attached to the bow.
8
draw weight for the bow dropped to approximately 20 pounds and
became easier to hold; and an autopsy report found that Briggs
had a lacerated liver and pancreas and a ruptured spleen and
that he died of “penetrating sharp force injuries of the abdomen.”
At the close of evidence, the People filed a third amended
information to replace the murder count with a first degree felony
murder count and to add a count of second degree murder. The
People included the allegation Adams personally used a deadly or
dangerous weapon in the commission of both offenses (§ 12022,
subd. (b)(1)).
The jury found Adams guilty of mayhem felony murder and
found true the allegation under section 12022, subdivision (b)(1).
The jury did not reach a verdict on the second degree murder
count, and the court declared a mistrial on that count.4 The court
sentenced Adams to a prison term of 25 years to life, plus one
year for the weapon enhancement. Adams timely appealed.
DISCUSSION
A. The Trial Court Erred in Basing the Felony-murder
Instruction on the Wrong Felony, but the Error Was
Harmless
Adams contends the court erred by giving an instruction on
felony murder that was based on the wrong underlying crime—
aggravated mayhem instead of mayhem. We agree the court
erred in instructing the jury that the underlying felony for the
felony murder count was aggravated mayhem. The error,
however, was harmless.
4 The court subsequently granted the People’s motion to
dismiss the second degree murder count without prejudice.
9
1. Relevant Proceedings
The trial court instructed the jury on felony murder with
CALCRIM No. 540A: “The defendant is charged in count 1 with
murder, under a theory of felony murder. . . . The People must
prove that: (1) the defendant committed aggravated mayhem;
(2) the defendant intended to commit aggravated mayhem; and
(3) while committing aggravated mayhem, the defendant caused
the death of another person. A person may be guilty of felony
murder even if the killing was unintentional, accidental, or
negligent.” The court instructed the jury on aggravated mayhem
with CALCRIM No. 800: “The defendant is charged with
aggravated mayhem in violation of . . . section 205.[5] To prove
that the defendant is guilty of this crime, the People must prove
that: (1) the defendant unlawfully and maliciously disabled or
disfigured someone permanently or deprived someone else of a
limb, organ, or part of his body; (2) when the defendant acted, he
intended to permanently disable or disfigure the other person or
deprive the other person of a limb, organ, or part of his body; and
(3) under the circumstances, the defendant’s act showed extreme
indifference to the physical or psychological well-being of the
other person.”
In his closing argument, the prosecutor explained the
elements of first degree felony murder as follows: “What is first
degree felony murder? It’s that [Adams] is trying to maim
[Briggs], . . . and in the process, he kills him, even if done
unintentionally. That’s a first degree felony murder. That
maiming, that word maiming, I’m going to talk about it, because
the judge read to you this instruction about something called
5 The People did not charge Adams with aggravated
mayhem.
10
aggravated mayhem. He’s not charged with it, but it’s part of the
felony murder. . . . What do we have to prove for you to find him
guilty of aggravated mayhem? It’s three things: One is that he
disabled or disfigured someone permanently or deprived them of
a use of an organ or a body part. And . . . the legal term for that
is maiming. . . . So it’s that he maimed him and that he intended
to do that. It wasn’t like an accident or something he didn’t mean
to have happen. He intended it. And that he showed extreme
indifference to [Briggs’s] physical or psychological well-being.
That’s an aggravated mayhem.”
The prosecutor proceeded to discuss the evidence that
supported a finding of aggravated mayhem: “What’s the
evidence? Did [Adams] deprive [Briggs] of an organ? Yeah. You
have in evidence the coroner’s report. . . . And the coroner did an
autopsy. And [Briggs’s] liver was perforated. His pancreas
lacerated. His spleen is ruptured and has actually been
surgically removed. It’s so badly damaged, it’s not even in his
body anymore. When they tried to save him, they surgically took
that out. So he’s lost use of all those organs.” The prosecutor
discussed the manner in which Adams inflicted the maiming
injury to show Adams intended “to damage and destroy [Briggs’s]
organs.” The prosecutor argued the evidence also showed Adams
exhibited extreme indifference to Briggs’s physical and
psychological well-being.
2. Applicable Law and Standard of Review
“‘In criminal cases, even in the absence of a request, a trial
court must instruct on general principles of law relevant to the
issues raised by the evidence and necessary for the jury’s
understanding of the case.’” (People v. Townsel (2016) 63 Cal.4th
1125, 58; see People v. Hartland (2020) 54 Cal.App.5th 71, 77;
People v. Campbell (2020) 51 Cal.App.5th 463, 493.) “‘The trial
court has a sua sponte duty to instruct the jury on the essential
elements of the charged offense.’” (People v. Rivera (2019)
7 Cal.5th 306, 332; accord, People v. Sta Ana (2021)
73 Cal.App.5th 44, 60; People v. Wetle (2019) 43 Cal.App.5th 375,
381.)
“A claim of instructional error is reviewed de novo.” (People
v. Mitchell (2019) 7 Cal.5th 561, 579; see People v. Hartland,
supra, 54 Cal.App.5th at p. 77.) “An appellate court reviews the
wording of a jury instruction . . . and assesses whether the
instruction accurately states the law.” (Mitchell, at p. 579; see
People v. Campbell, supra, 51 Cal.App.5th at p. 493.)
3. The Trial Court Erred in Instructing the Jury
the Underlying Crime for Felony Murder Was
Aggravated Mayhem
Section 189, subdivision (a), defines felony murder: “All
murder . . . that is committed in the perpetration of, or attempt to
perpetrate, arson, rape, carjacking, robbery, burglary, mayhem,
kidnapping, train wrecking, or any act punishable under
[statutes that define, among other crimes, torture, sodomy, and
lewd or lascivious acts on a child under the age of 14] . . . is
murder of the first degree.” (See People v. Baker (2021)
10 Cal.5th 1044, 1105 [“A homicide committed during the
perpetration of certain felonies enumerated by statute . . . is
murder of the first degree.”]; People v. Powell (2018) 5 Cal.5th
921, 942 (Powell) [“‘“The felony-murder rule makes a killing
while committing certain felonies murder without the necessity of
12
further examining the defendant’s mental state.”’”].)6 While the
statute lists mayhem as one of the felonies that may serve as the
underlying offense for first degree felony murder, the statute does
not list aggravated mayhem. Thus, the trial court erred in
instructing the jury it could convict Adams of first degree felony
murder with aggravated mayhem as the underlying offense. (See
Baker, at p. 1105 [“homicide committed during the perpetration
of unenumerated inherently dangerous felonies is murder of the
second degree”]; Powell, at p. 942 [if the felony is not listed in
section 189, subdivision (a), “‘“the murder is of the second
degree”’”].)
4. The Error Was Harmless
The trial court’s instructional error on an element of the
charged offense, first degree felony murder, “is reversible unless
‘it is clear beyond a reasonable doubt that a rational jury would
have rendered the same verdict absent the error.’” (People v.
Rivera, supra, 7 Cal.5th at p. 333; see People v. Haley (2004)
34 Cal.4th 283, 316 [“if the trial court erroneously instructs on
felony murder, reversal is not required if there is a basis in the
record to conclude that the verdict was based on a valid theory of
guilt”].) In Haley the trial court erroneously instructed the jury it
6 In 2019 the Legislature amended section 189 “to ensure
that murder liability is not imposed on a person who was not the
actual killer, did not act with the intent to kill, or was not a
major participant in the underlying felony who acted with
reckless indifference to human life.” (Stats. 2018, ch. 1015, § 1,
subd. (f)); see People v. Gentile (2020) 10 Cal.5th 830, 842.) The
changes to section 189 did not affect the application of the felony
murder rule in this case because Adams was the actual killer.
(See People v. Lopez (2023) 88 Cal.App.5th 566, 575].)
13
could find the defendant guilty of first degree felony murder
based on the underlying felony of sodomy, which was not one of
the offenses listed in section 189 at the time of the crimes. But
because the jury found true the felony-murder special
circumstance allegation the defendant killed the victim during
the course of a robbery and burglary, the jury necessarily found
the defendant had the specific intent to commit robbery or
burglary, which meant “the jury unanimously found [the]
defendant guilty of first degree murder on the valid theory that
the killing occurred during the commission of a robbery or
burglary.” (Haley, at p. 316.)
Adams’s first degree murder conviction was based on a
valid theory of guilt. Section 203, which defines the crime of
mayhem, provides: “Every person who unlawfully and
maliciously deprives a human being of a member of his body, or
disables, disfigures, or renders it useless, or cuts or disables the
tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of
mayhem.” (See People v. Romero (2019) 44 Cal.App.5th 381, 386
[“A member of the body is a general term describing any integral
part or vital organ of the body.”].) Mayhem is a general intent
crime. (People v. Rodarte (2014) 223 Cal.App.4th 1158, 1170; see
People v. Quarles (2018) 25 Cal.App.5th 631, 636.) But when
mayhem serves as the underlying felony of a first degree felony
murder charge, the People must prove the defendant had the
“specific intent to maim.” (People v. Gonzales (2011) 51 Cal.4th
894, 941 (Gonzales); accord, People v. Anderson (1965) 63 Cal.2d
351, 358; see People v. Ghobrial (2018) 5 Cal.5th 250, 279 [“‘For
felony murder, the required mental state is the specific intent to
commit the underlying felony.’”]; People v. Garcia (2022) 82
Cal.App.5th 956, 962 [same].)
14
Section 205, which defines the crime of aggravated
mayhem, provides in relevant part: “A person is guilty of
aggravated mayhem when he or she unlawfully, under
circumstances manifesting extreme indifference to the physical or
psychological well-being of another person, intentionally causes
permanent disability or disfigurement of another human being or
deprives a human being of a limb, organ, or member of his or her
body.” (See People v. Manibusan (2013) 58 Cal.4th 40, 86
(Manibusan).) As discussed, one of the elements the People must
prove under section 205 is “‘the defendant acted with the specific
intent to cause a maiming injury’” (ibid.; see People v. James
(2015) 238 Cal.App.4th 794, 811), the very same kind of injury
section 203 requires. (See Gonzales, supra, 51 Cal.4th at p. 941
[mayhem felony murder requires “specific intent to maim”].)
In other words, mayhem is a lesser included offense of
aggravated mayhem. (People v. Robinson (2014) 232 Cal.App.4th
69, 78 (Robinson); see People v. Newby (2008) 167 Cal.App.4th
1341, 1347-1348 [“the difference between simple mayhem and
aggravated mayhem . . . is the requisite criminal intent,” and “the
permanent disfiguring injury requirement is the same under each
statute”].) The jury’s finding Adams had the specific intent to
commit aggravated mayhem encompassed a finding Adams had
the specific intent to commit mayhem. Thus, the errors in the
jury instruction on felony murder (listing aggravated mayhem as
the underlying felony) and the court’s instruction on the
corresponding elements of aggravated mayhem (which included
the elements of simple mayhem) were harmless.
Adams asserts “the lesser included analysis from Robinson
only applies when intent is not at issue.” According to Adams,
“when intent is at issue, as it is here, then the different language
15
[of section 203 and section 205] does matter, because the fact-
finder . . . must assess what, if anything, was intended by the
defendant, thus making the language of that statute significant
to determining exactly what type of specific intent is required.”
Adams reads into Robinson a limitation that does not exist.
The court in Robinson, supra, 232 Cal.App.4th 69concluded that, notwithstanding the Legislature’s decision to use
different words to describe the injuries covered under section 203
and section 205, “the Legislature was not concerned with whether
the types of injuries which could constitute aggravated mayhem
would also constitute simple mayhem, but rather with the intent
and mental state underlying the infliction of the injuries.” (Id.,
at p. 78.) The court stated the Legislature “was concerned only
with adequate punishment for mayhem committed with the
particular intent and mental state the Legislature considered
worthy of harsher punishment.” (Ibid.) Relying on the Supreme
Court’s analysis in People v. Santana (2013) 56 Cal.4th 999, the
court in Robinson observed that an act committed under
section 203 “cannot be distinguished from” an act committed
under section 205, “except by the intent and mental state with
which the act is committed.” (Robinson, at p. 79.) As discussed,
because mayhem felony murder requires a specific intent to
commit mayhem, that element is identical to the specific intent
element of aggravated mayhem. Contrary to Adams’s suggestion,
Robinson does not suggest section 203, when used as the basis for
felony murder, requires a different “type of specific intent” from
that required under section 205.
Adams also argues that “the instruction given in this case
allowed the jury to convict if it found [he] only broadly ‘intended
to permanently disable or disfigure’ Briggs in some unspecific
16
way” and that “the specific intent to commit mayhem under
section 203 requires something more than that.” The instruction,
however, did no such thing, and as discussed the relevant injuries
contemplated by section 203 and section 205 are the same. The
defendant can commit both aggravated mayhem and mayhem by
depriving the victim of a member of his body, such as an organ or
group of organs. (Compare CALCRIM No. 800 (aggravated
mayhem) [“the defendant unlawfully and maliciously disabled or
disfigured someone permanently or deprived someone else of a
limb, organ, or part of his body”] with CALCRIM No. 801
(mayhem) [“the defendant unlawfully and maliciously”
(1) “Removed a part of someone’s body”; (2) “Disabled or made
useless a part of someone’s body and the disability was more than
slight or temporary”; (3) “Permanently disfigured someone”; or
(4) inflicted certain injuries on the face].) The prosecutor argued,
and the evidence supported the jury’s finding, Adams had the
specific intent to deprive Briggs of the organs where his arrow
penetrated and went through his body (the liver, pancreas, and
spleen). Section 203 applies to a defendant who inflicts such
maiming injuries. (People v. Santana, supra, 56 Cal.4th at
p. 1003; see People v. Cartier (1960) 54 Cal.2d 300, 310 (Cartier)
[“It is mayhem if the injury inflicted deprives the person injured
of a member of his body or the usual uses of the severed organ.”].)
B. Substantial Evidence Supported the Trial Court’s
Instruction on Felony Murder
Adams argues substantial evidence did not support the
instruction the trial court gave on mayhem felony murder
because “none of the evidence shows that [he] acted with a
specific intent to ‘deprive’ Briggs of his spleen, or to ‘disable[ ],
17
disfigure[ ], or render[ ] it useless.’” As part of this argument,
Adams asserts that “an instruction on felony murder mayhem
actually requires something more than evidence of an intent to
commit just some type of maiming/permanent injury”; it “requires
evidence of an intent to inflict a particular permanent injury or
disfigurement on the victim.” Because the second argument is
wrong, the first one is too.
1. Mayhem Felony Murder Requires the Specific
Intent To Maim—No More, No Less
As discussed, section 203 states: “Every person who
unlawfully or maliciously deprives a human being of a member of
his body, or disables, disfigures, or renders it useless, . . . is guilty
of mayhem.” The statute uses the indefinite article “a” before the
words “member of his body,” rather than an adjective like
“particular.” When the People allege mayhem as the underlying
felony for felony murder, the People must prove the defendant
had the specific intent to deprive a human being of a member of
that person’s body (or to disable, disfigure or render it useless);
that is, the specific intent “to maim.” (Gonzales, supra,
51 Cal.4th at p. 941; see Robinson, supra, 232 Cal.App.4th at
p. 77 [“‘Mayhem [is] an older form of the word “maim.”’”].) The
language of section 203 does not require the People to prove the
defendant intended to inflict injuries to a particular member or
organ of the victim’s body. (See People v. Santana, supra,56 Cal.4th at p. 1003 [“Section 203 generally prohibits six
injurious acts against a person, three that specify a particular
18
body part and three that do not.”].)7 Because section 203 does not
require injury to a specific body part, when section 203 serves as
the underlying felony for a felony murder charge, the People do
not (contrary to Adams’s assertion) have to prove the defendant
had the specific intent to injure a particular body part of the
victim.
Consistent with the statutory language, courts have used
the more general phrase “specific intent to maim” or “specific
intent to commit mayhem” to describe this element of the crime.
(See Gonzales, supra, 51 Cal.4th at pp. 939, 941 [jury instructions
“properly informed the jury that mayhem felony murder requires
the specific intent to commit mayhem,” and the jury “had more
than enough evidence of specific intent to maim”]; cf. People v.
Anderson, supra, 63 Cal.2d at p. 359 [trial court erred in
instructing on mayhem felony murder where the record did not
“disclose substantial evidence showing a specific intent to commit
mayhem”]; People v. Sears (1965) 62 Cal.2d 737, 745 [trial court
erred in instructing on mayhem felony murder in the absence of
“a showing of specific intent to commit mayhem”], overruled on
another ground in People v. Cahill (1993) 5 Cal.4th 478, 509,
fn. 17.) Rather than requiring evidence that the defendant
intended to maim a particular organ or part of the victim’s body,
courts instead require that the manner of attack was deliberate
and controlled, rather than “indiscriminate.” (Gonzales, at
7 The Supreme Court in People v. Santana stated that the
three injurious acts that specify a particular body part are
“cutting or disabling the tongue,” “putting out an eye,” and
“slitting the nose, ear or lip” and that the three that do not are
“dismembering or depriving a part of someone’s body,” “disabling
or rendering useless a part of someone’s body,” and “disfiguring
someone.” (People v. Santana, supra, 56 Cal.4th at p. 1003.)
19
p. 941; see People v. Campbell (1987) 193 Cal.App.3d 1653, 1668-
1669 (Campbell) [the “controlled and directed nature of the
attack supports an inference [the defendant] intended to
disfigure [the victim’s] face, including her right ear”]; cf.
Anderson, at pp. 356, 359 [no “specific intent to commit mayhem”
where the evidence, which showed “41 wounds ranging over the
entire body [of the victim] from the head to the extremities,”
indicated “no more than an indiscriminate attack”]; Sears, at
p. 745 [evidence showed “no more than . . . an indiscriminate
attack” and did “not support the premise that [the] defendant
specifically intended to maim his victim”]; People v. Park (2003)
112 Cal.App.4th 61, 71 [“[b]ecause there was no evidence about
how or why the defendant [in Anderson] inflicted the particular
wounds, there was no evidence to show anything more than an
indiscriminate attack”].)
Nor do the cases addressing whether substantial evidence
supported convictions for aggravated mayhem (which, as
discussed, contains the same element of specific intent to maim
as mayhem felony murder)8 require the prosecution to prove the
defendant had the specific intent to inflict a particular
disfiguring or disabling injury. As with the cases on mayhem
felony murder, courts ask whether the defendant carried out the
attack indiscriminately or to cause a disabling or disfiguring
injury. (See Manibusan, supra, 58 Cal.4th at pp. 86, 88
[aggravated mayhem requires proof “‘the defendant acted with
8 Indeed, Adams argued in his opening brief in his prior
appeal that, to prove mayhem felony murder, the prosecution had
to show the specific intent to commit mayhem and that this
intent “is essentially identical to what is required for aggravated
mayhem.”
20
the specific intent to cause a maiming injury,’” and the evidence
supported the inference the defendant did not “fire
indiscriminately, but focused his attack on [the victim’s] head,
which is a particularly vulnerable part of the body”]; People v.
Park, supra, 112 Cal.App.4th at p. 69 [evidence the defendant
limited “the scope of his attack” to the victim’s head, “an
extremely vulnerable portion” of the body, showed “this was not
an indiscriminate attack but instead was an attack guided by the
specific intent of inflicting serious injury upon [the victim’s]
head”]; People v. Ferrell (1990) 218 Cal.App.3d 828, 833, 836
(Ferrell) [“the specific intent to cause the maiming injury is an
element of aggravated mayhem,” and the shooting “was not an
indiscriminate, random attack on [the victim’s] body; instead, the
shooting was directed and controlled”].) Neither mayhem nor
aggravated mayhem has an organ-specific requirement that
would have required proof Briggs intended to maim Briggs’s
spleen, liver, pancreas, or all three.
The trial court properly instructed the jury with
CALCRIM No. 800 that the People had to prove that, when
Adams acted, he “intended to permanently disable or disfigure”
Briggs or “deprive [him] of a limb, organ, or part of his body.”
Adams did not request clarification by way of further explanation
or pinpoint instruction and does not argue the trial court should
have modified the language of CALCRIM No. 800 to include the
additional requirement Adams had to have the specific intent to
inflict a particular disfiguring or disabling injury. (See People v.
Thomas (2023) 14 Cal.5th 327, 363 [pinpoint instructions “‘“are
not required to be given sua sponte”’”]; People v. McKinnon (2011)
52 Cal.4th 610, 670 [“a defendant who believes an instruction
requires clarification or modification must request it”]; People v.
21
San Nicolas (2004) 34 Cal.4th 614, 669 [“the burden falls on the
defendant to request a ‘pinpoint’ instruction”].)
Adams cites several cases, each of which he argues shows
“it was not just the attack in general, most of which involved
several injuries that were permanent in nature, but rather a
particular maiming/permanent injury that was relied upon as the
alleged ‘mayhem,’ and which was found to be specifically
intended in order to support the instruction.” That is not what
the cases say. For example, in Gonzales, supra, 51 Cal.4th 894the defendant killed her four-year-old niece by immersing her in
a bathtub of scalding hot water. The child had “injuries over an
extended period of time, including a serious burn wound on her
head, multiple bruises, scars, abrasions, and lacerations all over
her body, subdural and subarachnoid hematomas, and the severe
scalding that ultimately caused her death.” (Id. at p. 941.) The
Supreme Court rejected the defendant’s argument the evidence
showed “no more than an indiscriminate attack.” (Ibid.) The
Supreme Court did not discuss whether the defendant had to
intend to inflict a particular injury on a specific body part.
In Powell, supra, 5 Cal.5th 921 the defendant was
romantically obsessed with the victim, whom he raped, strangled,
and beat to death with various sharp objects. (Id. at pp. 930-
932.) The Supreme Court held the jury’s finding the defendant
committed mayhem supported the mayhem-murder special-
circumstance finding under section 190.2, subdivision (a)(17).
(Id. at p. 954.) Although the defendant in Powell did not
challenge the jury’s finding he committed mayhem, the Supreme
Court stated in a footnote that the “superfluous ragged gashes in
[the victim’s] neck, at a minimum, would qualify as intentional
disfigurement.” (Id. at p. 954, fn. 10, italics added.) The
22
Supreme Court, however, did not state the defendant had to
intend this specific injury (among the victim’s many other
disfiguring injuries, including “a seven-inch gaping skull
fracture”) to commit mayhem. (Id. at p. 931.)
In People v. Jentry (1977) 69 Cal.App.3d 615 (Jentry) the
court held the evidence showed the defendant had the specific
intent to commit mayhem because there was evidence the
defendant and his wife had “fantasized about torturing someone
for sexual satisfaction, including castrating a male.” (Id. at
p. 620.) While the facts of the case included evidence the
defendant and his wife excised the defendant’s genitals, they also
smashed the victim’s skull and slit his throat “from ear to ear.”
(Id. at p. 619.) Although the court held the “evidence
overwhelmingly established that the [defendant] and his wife
intended to consummate the mayhem” (id. at p. 628), the court
did not say the defendant had to specifically intend any
particular injury to be guilty of mayhem.
In Campbell, supra, 193 Cal.App.3d 1653 the defendant
punctured the victim’s face 25 times with a screwdriver and tore
off her ear with a brick. (Id. at pp. 1660, 1668.) The court held
substantial evidence supported a felony-murder instruction based
on “the controlled and directed nature of the attack,” where the
defendant “limited the amount of force he used” and “limited the
scope of the attack.” (Id. at pp. 1668-1669.) The issue was
whether the defendant specifically intended to tear off the
victim’s ear “or whether he merely intended to generally attack”
the victim, and the court held the defendant intended the former.
(Id. at pp. 1668-1669.) While the defendant in Campbell
intended to maim a specific body part, the court did not say
mayhem required an intent to maim a specific body part.
23
And in Cartier, supra, 54 Cal.2d 300 the Supreme Court
held substantial evidence supported the trial court’s finding the
defendant “murdered his wife while perpetrating the crime of
mayhem” by “severing the vagina and the external genitalia from
her body and cutting out her heart.” (Id. at p. 311.) Cartier,
however, did not involve the issue whether the defendant had the
specific intent to commit mayhem. (Id. at pp. 310-311.)
The defendant in Gonzales tortured her niece to death by
abusing her and burning her in a bathtub of hot water; the
defendant in Powell beat his victim to death after sexually
assaulting her; the defendant in Jentry, fulfilling a sexual
fantasy, castrated his victim; the defendant in Campbell targeted
his victim’s ear, face, and head; and the defendant in Cartier
severed of his wife’s organs. None of these cases, however, held
mayhem felony murder requires the specific intent to dismember
a particular body part. Adams, an experienced hunter, aimed a
highly accurate compound bow with a razor-sharp broad head
arrow at Briggs’s torso, intending to maim the organs there.
That was specific enough. (See People v. Santana, supra,56 Cal.4th at p. 1012 [evidence the defendant “stood at close
range and fired three shots . . . into the leg and buttock area” of
the victim “strongly” supported the finding the defendant
“intended to inflict a disabling injury”]; Gonzales, supra,51 Cal.4th at pp. 902, 941 [severe scalding from the victim’s chest
to her feet supported the jury’s finding of specific intent to maim];
see also People v. Romero, supra, 44 Cal.App.5th at p. 387 [where
the defendant stabbed the victim eight times in various parts of
the body, the victim’s “scarring from the stabbing attack
constitutes sufficient evidence to support [the] defendant’s
conviction of mayhem”].)
24
Adams suggests it “would be problematic” for us to follow
cases like Manibusan (which, as a Supreme Court decision, is
binding on us) and Ferrell because “it could mean that for
virtually all assaults with a deadly weapon that end in death, an
underlying mayhem could be inferred, and therefore every such
case could automatically become a first degree murder.”
According to Adams, under his theory of requiring the People to
prove “a more specific intent to cause a particular permanent
injury,” the “problem of bootstrapping cases into the realm of
felony murder can be easily avoided.” Adams made a similar
argument in Adams I, where he sought to distinguish Manibusan
and Ferrell on the grounds that those cases “‘were not murder
cases’” and that “‘those courts were not taking into consideration
the danger’” of turning “‘every death caused by a deadly weapon
aimed at a particular part of the body into a first degree felony
murder.’” (Adams I, supra, B284753.) We concluded in Adams I
that, although “Adams’s policy arguments may have some merit,”
section 189, subdivision (a), includes mayhem as an underlying
offense for felony murder and that the Supreme Court made clear
in Manibusan “a shooter can intend both to kill and to maim.”
(Adams I, supra, B284753; see Manibusan, supra, 58 Cal.4th at
p. 89 [“‘[A] defendant may intend both to kill his or her victim
and to disable or disfigure that individual if the attempt to kill is
unsuccessful.’”]; see also People v. Burton (1971) 6 Cal.3d 375,
387 [for the “felonies enumerated in section 189 . . . , there is an
independent felonious purpose,” and the deaths that result differ
from “deaths resulting from assaults with a deadly weapon,
where the purpose of the conduct was the very assault which
resulted in death”], overruled on another ground in People v.
Lessie (2010) 47 Cal.4th 1152, 1156.) As the Supreme Court held
25
in Manibusan, “the fact the victim was shot in the head can
support an inference of an intent to kill,” but “the same fact can
support an inference of an intent to cause permanent disability or
disfigurement.” (Manibusan, at p. 88.)
Adams argues a defendant who “shoots a rifle in the
direction of someone’s chest, or head, or heart, and some kind of
permanent internal harm is caused before the victim dies, but
without evidence from which to infer that such particular,
permanent internal harm was intended,” should not be guilty of
felony murder. Adams, however, intended to inflict permanent
internal harm (although not with the level of specificity he thinks
the law should require). As an experienced marksman, Adams
selected his compound bow, armed it with an arrow used to tear
through the flesh of animals he hunted, and adjusted his bow
several times to take the “one shot” he believed would teach
Briggs a lesson he would never forget (“That’s what you get,
homie”). As the Supreme Court explained, the “net effect” of an
argument like Adams’s “would be to eliminate the application of
the felony-murder rule to all unlawful killings which were
committed by means of a deadly weapon, since in each case the
homicide would include in fact assault with a deadly weapon,
even if the homicide resulted from the commission of one of the
. . . felonies . . . enumerated in section 189,” an outcome the
Supreme Court stated was “unwarranted both in logic and in
principle.” (People v. Burton, supra, 6 Cal.3d at pp. 386-387.)
2. Substantial Evidence Supported the
Trial Court’s Instruction on Felony Murder
In determining whether the trial court erred in
“‘instructing the jury on a particular theory of first degree
26
murder for which there was insufficient evidence,’” 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.”’” (People v Suarez
(2020) 10 Cal.5th 116, 168.) “‘Evidence of a defendant’s state of
mind is almost inevitably circumstantial, but circumstantial
evidence is as sufficient as direct evidence to support a
conviction.’” (People v. Nguyen (2015) 61 Cal.4th 1015, 1055; see
Manibusan, supra, 58 Cal.4th at p. 87.) Specific intent
“‘“is rarely susceptible of direct proof and usually must be
inferred from the facts and circumstances surrounding the
offense.”’” (People v. Thompkins (2020) 50 Cal.App.5th 365, 403;
see People v. Scott (2011) 52 Cal.4th 452, 488 [“‘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.
Mincey (1992) 2 Cal.4th 408, 433 [“A defendant’s state of mind
must, in the absence of the defendant’s own statements, be
established by the circumstances surrounding the commission of
the offense.”]; People v. Szadziewicz (2008) 161 Cal.App.4th 823,
831 [“‘“A jury may infer a defendant’s specific intent from the
circumstances attending an act, the manner in which it is done,
and the means used, among other factors.”’”], disapproved on
another ground in People v. Dalton (2019) 7 Cal.5th 166.)
Specific intent to maim “‘“may not be inferred solely from
evidence that the injury inflicted actually constitutes mayhem;
instead, there must be other facts and circumstances which
support an inference of intent to maim rather than to attack
27
indiscriminately.”’” (People v. Assad (2010) 189 Cal.App.4th 187,
195; see People v. Ferrell, supra, 218 Cal.App.3d at p. 835.)
Substantial evidence supported the instruction on mayhem
felony murder. The evidence showed the attack was anything but
indiscriminate. After the drunken wrestling match in the front
yard, Adams went inside his house to retrieve his compound bow,
came back outside to confront Briggs, nocked a razor-tip arrow,
lined up his shot as he followed Briggs down the street, and told
his brother Cameron to get out of the way. And when it appeared
the three men were about to disburse, Adams shot Briggs with
the arrow.
Like the defendant in Manibusan, Adams aimed at a
particularly vulnerable part of Briggs’s body—here, the stomach
(see People v. Bolden (2002) 29 Cal.4th 515, 561 [the back, which
is behind the lungs and spleen, is a “vital area of the body”];
People v. Moore (2002) 96 Cal.App.4th 1105, 1114 [the abdomen
is “an extremely vulnerable area of the body”])—to cause
permanent and disabling injuries. (See Manibusan, supra,58 Cal.4th at p. 89 [firing two shots into the face and upper arm
“supports a finding that [the defendant] intended to cause
permanent disability”]; People v. Ferrell, supra, 218 Cal.App.3d
at p. 835 [“a shot in the neck from close range, if not fatal, is
highly likely to disable permanently”].) Adams also shot only one
arrow, even though he had additional arrows in his quiver, which
supported the inference he was satisfied he had accomplished his
goal of maiming Briggs. (See People v. Park, supra,
112 Cal.App.4th at p. 69 [“It is particularly significant that [the]
defendant stopped his attack once he had maimed [the victim’s]
face: he had accomplished his objective.”]; Ferrell, at p. 835
[“Once [the victim] was down, [the defendant] did not fire
28
additional shots at her, to make certain that she was dead.”].)
And after Adams shot Briggs with his compound bow, he told
Briggs to run or he would shoot him with his gun, which
suggested Adams did not expect Briggs to die from the arrow, but
intended him to suffer a disabling or disfiguring injury.
C. The Trial Court Did Not Have a Sua Sponte Duty To
Give Lesser Included Instructions on Second Degree
Murder or Voluntary Manslaughter
Adams contends that, on the first degree felony murder
count, “he was entitled to lesser included offense instructions
. . . on second degree murder and manslaughter” and that the
court “erred in not providing them.” Because second degree
murder and manslaughter are not lesser included offenses of
mayhem felony murder, however, the court did not err in failing
to give those instructions sua sponte as lesser included offenses.
1. Relevant Proceedings
As stated, for the retrial the People filed a second amended
information charging Adams with malice murder under section
187, subdivision (a). At a pretrial hearing, the trial court
confirmed that the People planned to proceed on the theory of
felony murder and that, because the jury had acquitted Adams of
willful, deliberate, and premeditated murder, the People would
not be proceeding on that theory. The court next addressed a
motion Adams filed to preclude the People from pursuing the
mayhem felony murder charge.9 Adams argued that, because
9 In summarizing the procedural history of the case, Adams
stated in the motion: “The parties agree that based on the
29
“there’s no first-degree express malice theory anymore,” the
felony murder theory “becomes a little ironic in that the lesser
intent . . . leads to the greater degree” and that the “intent to kill
leads to a second-degree murder.” The prosecutor argued the
felony murder theory was “valid under Supreme Court precedent”
and our decision in Adams I. The court denied Adams’s motion,
stating that we “sent this case back for potential retrial . . . on
the felony murder.”
As discussed, after the close of evidence, the People filed a
third amended information to replace first degree malice murder
with first degree felony murder. Although as Adams concedes
this amendment meant the count “thereafter referred to first-
degree felony murder,” the count still mistakenly included
language Adams murdered Briggs “with malice aforethought.”
The People added a separate count of second degree murder,
alleging Adams murdered Briggs “with malice aforethought.”
As stated, the court instructed the jury on the elements of
felony murder and aggravated mayhem. The court also
instructed the jury on second degree murder, and in connection
with that count, the role of provocation in reducing second degree
murder to manslaughter and on self-defense. The court told the
jury “provocation does not apply to a prosecution under a theory
of felony murder.”
The jury reached a verdict on the mayhem felony murder
count, but not on the second degree murder count. The court
previous acquittal the People are now barred from proceeding on
a willful, deliberate and premeditated first degree murder
theory.” Adams also stated that, because of this court’s holding
in Adams I, “the People plan to retry Adams on a felony murder
theory with mayhem as the alleged underlying crime.”
30
instructed the jurors to return to the jury room to deliberate on
the second degree murder count “irrespective of the verdict that
has been reached” on the mayhem felony murder count. Outside
the presence of the jury, however, the court stated that, when the
court asked the jurors to “further deliberate,” the “looks on their
faces . . . show[ed] that they were confused.” The court indicated
its intention to tell the jurors not to deliberate further because to
do so “would only further confuse the jury.” The prosecutor asked
the court to direct the jury to return verdicts on both counts;
counsel for Adams agreed with the court that requesting further
deliberation would be “confusing to the jury” and asked the court
to take the verdict “on the count that they reached a verdict on
and that [should] be it.” The court (confusingly) concluded that,
in the minds of the jurors, “they’ve reached a verdict” and that
further deliberation “could potentially further confuse these
proceedings.” The court took the verdict on the mayhem felony
murder count, excused the jury, and as discussed, declared a
mistrial on the second degree murder count.
2. Applicable Law and Standard of Review
“A trial court has a sua sponte duty to instruct the jury on
any uncharged lesser offense that is necessarily included in a
charged offense if there is substantial evidence from which the
jury could reasonably conclude that the defendant committed the
lesser included offense but not the charged offense. [Citation.]
‘To determine if an offense is lesser and necessarily included in
another offense for this purpose, we apply either the elements
test or the accusatory pleading test. “Under the elements test, if
the statutory elements of the greater offense include all of the
statutory elements of the lesser offense, the latter is necessarily
31
included in the former.”’” (People v. Lopez (2020) 9 Cal.5th 254,
269-270.) “What that test requires is determining whether a
given crime’s elements together constitute a mere subset of
another crime’s elements. [Citation.] If the answer is yes, the
greater offense ‘“‘“cannot be committed without also necessarily
committing [the] lesser offense.”’”’ [Citation.] Which means that,
so long as some additional evidence is required to support a
conviction for the former, the latter is a lesser included offense.”
(People v. Fontenot (2019) 8 Cal.5th 57, 65.) “‘“Under the
accusatory pleading test, if the facts actually alleged in the
accusatory pleading include all of the elements of the lesser
offense, the latter is necessarily included in the former.”’” (Lopez,
at p. 270.) “Either of these tests triggers the trial court’s duty to
instruct on lesser included offenses.” (People v. Gonzalez (2018)
5 Cal.5th 186, 197; see People v. Smith (2013) 57 Cal.4th 232,
240.)
However, where the information “simply track[s]” the
statutory language “without providing additional factual
allegations, we focus on the elements test.” (People v. Shockley
(2013) 58 Cal.4th 400, 404; see People v. Bettasso (2020)
49 Cal.App.5th 1050, 1057 [“‘When, as here, the accusatory
pleading incorporates the statutory definition of the charged
offense without referring to the particular facts, a reviewing court
must rely on the statutory elements to determine if there is a
lesser included offense.’”]; see also People v. Fontenot, supra,8 Cal.5th at p. 65 [because the amended information “merely
‘incorporate[d] the statutory definition of the charged offense
without referring to the particular facts’ in detail, we ‘must rely
on the statutory elements’ alone” to determine “whether one
32
offense is a lesser included offense of another”]; People v.
Robinson (2016) 63 Cal.4th 200, 207 [same].)
The language of the second amended information (which
the People filed before the retrial began) tracked the language of
section 187, subdivision (a): The People alleged Adams
committed “the crime of murder, in violation of” section 187,
subdivision (a), “unlawfully, and with malice aforethought.” (See
§ 187, subd. (a) [“Murder is the unlawful killing of a human being
. . . with malice aforethought.”].) The pleading did not provide
any additional factual allegations about Adams’s conduct or refer
to any particular facts about the crime. The third amended
information, which substituted felony murder for malice murder,
also tracked the statutory language of section 187, subdivision (a)
(although not the language of section 189, subdivision (a)): The
People alleged Adams committed “the crime of first degree felony
murder, in violation of” section 187, subdivision (a), again
“unlawfully, and with malice aforethought.” And again, there
were no additional factual allegations about the crime or Adams’s
conduct. Therefore, we apply only the elements test. (People v.
Fontenot, supra, 8 Cal.5th at p. 65; see People v. Shockley, supra,
58 Cal.4th at p. 404; People v. Bettasso, supra, 49 Cal.App.5th at
p. 1057.)
Under the elements test, neither second degree murder nor
voluntary manslaughter is a lesser included offense of first
degree felony murder. Second degree murder requires the People
to prove the defendant had malice aforethought. (People v.
Gonzalez, supra, 5 Cal.5th at p. 197; People v. Elmore (2014)
59 Cal.4th 121, 133.) First degree felony murder does not.
(Powell, supra, 5 Cal.5th at p. 942; see People v. Bryant (2013)
56 Cal.4th 959, 965 [“‘Felony-murder liability does not require an
33
intent to kill, or even implied malice, but merely an intent to
commit the underlying felony.’”]; People v. Huynh (2012)
212 Cal.App.4th 285, 314 (Huynh) [“malice is not involved in first
degree felony murder”].) Thus, the defendant can commit felony
murder without also committing second degree murder. (See
People v. Price (2017) 8 Cal.App.5th 409, 429 (Price) [felony
murder “entails commission of an inherently dangerous felony”
and “requires no proof of intent or conscious disregard of life”].)
Voluntary manslaughter “is the unlawful killing of a
human being without malice” in a “sudden quarrel or heat of
passion.” (§ 192, subd. (a); see People v. Soto (2018) 4 Cal.5th
968, 974 [“‘Two factors may preclude the formation of malice and
reduce murder to voluntary manslaughter: heat of passion and
unreasonable self-defense.’”]; People v. Elmore, supra, 59 Cal.4th
at p. 133 [“Punishment is mitigated for this offense, which the
law deems less blameworthy than murder because of the
attendant circumstances and their impact on the defendant’s
mental state.”]; Price, supra, 8 Cal.App.5th at p. 428
[“a defendant ‘is guilty of voluntary manslaughter in “limited,
explicitly defined circumstances”’”].) The mitigating factors in
section 192, subdivision (a), however, do not apply to felony
murder. (See Price, at pp. 429-430 [felony murder “renders
irrelevant defenses that mitigate malice such as provocation or
self-defense”].) “Voluntary manslaughter thus is not a lesser
included offense of felony murder.” (Id., at p. 430; see People v.
Turner (2020) 45 Cal.App.5th 428, 439 [“‘neither felony-murder
nor the natural and probable consequences doctrine are theories
on which one can commit voluntary manslaughter’”].)
Adams argues that “second degree murder and voluntary
manslaughter . . . are lesser included offenses to the alleged
34
crime as charged” and that “the accusatory pleading, which gave
[him] notice that he was entitled to lesser jury instructions to his
first degree murder charge, must govern.” As discussed,
however, the accusatory pleading does not apply because the
second amended information did not allege any additional facts
beyond the statutory language of section 187, subdivision (a).
And Adams had ample notice of the crime the People intended to
prove in the second trial. Adams knew from the moment the jury
in his first trial acquitted him of premeditated murder the People
could not and would not prosecute him for first degree malice
murder in any retrial. Our opinion in Adams I made clear felony
murder was the only permissible first degree murder theory.
(See People v. Bailey (2012) 54 Cal.4th 740, 751-752 [“the
accusatory pleading test only applies in determining whether a
defendant received notice of the charges against him in order to
have a reasonable opportunity to prepare and present his
defense” and “is not applicable” where “concerns about notice are
not at issue”]; Huynh, supra, 212 Cal.App.4th at pp. 312-313
[“Notwithstanding the reference to section 187 in the
information, the prosecution’s case was tried strictly on a first
degree felony-murder theory,” and the defendant “knew from the
get-go that his case was being prosecuted only on a felony-murder
theory.”].)10
People v. Anderson (2006) 141 Cal.App.4th 430, on which
Adams principally relies, is distinguishable. In that case the
10 Adams asserts Huynh, supra, 212 Cal.App.4th 285 is
distinguishable because there “the prosecution’s case was tried
strictly on a first degree felony-murder theory—which was not
the case here.” The record refutes this assertion. On the first
35
accusatory pleading charged malice murder, and after the close of
evidence at trial, the charge of felony murder “was ‘added’ to the
information.” (Id. at p. 445.) The court in Anderson concluded:
“Having established the expectation that instruction on lesser
included offenses of murder would be given, if supported by the
evidence, the prosecution could not defeat that expectation by
amendment after the close of evidence.” (Id. at p. 446.) Unlike
the defendant in Anderson, Adams could not have reasonably
expected the trial court to instruct on lesser included offenses of a
crime the prosecution could not and did not pursue. The
prosecution here was not adding a felony murder count to the
charging document to defeat any expectation by Adams that the
court would give instructions on lesser included offenses of malice
murder. Instead, the prosecution was correcting the charging
document to conform with what everyone already knew: The
prosecution was proceeding on a theory of felony murder, not
malice murder. Adams had no expectation the court would give
degree murder count, the People proceeded only on a theory of
felony murder. While the People also charged Adams in a
separate count with second degree murder, the court gave an
instruction on a lesser included offense in connection with that
count.
36
instructions on malice murder or its lesser included offenses on
the first degree felony murder count.
D. Any Misstatement of Law by the Prosecutor in Closing
Argument Did Not Prejudice Adams
1. Relevant Proceedings
Before opening statements, and again before closing
arguments, the trial court gave CALCRIM No. 220, which
instructed the jury on the presumption of innocence and the
burden of proof: “A defendant in a criminal case is presumed to
be innocent. This presumption requires that the People prove a
defendant guilty beyond a reasonable doubt. Whenever I tell you
the People must prove something, I mean they must prove it
beyond a reasonable doubt. Proof beyond a reasonable doubt is
proof that leaves you with an abiding conviction that the charge
is true. The evidence need not eliminate all possible doubt,
because everything in life is open to some possible or imaginary
doubt. In deciding whether the People have proved their case
beyond a reasonable doubt, you must impartially compare and
consider all the evidence that was received throughout the entire
trial. Unless the evidence proves the defendant guilty beyond
a reasonable doubt, he is entitled to an acquittal, and you must
find him not guilty.” The court also instructed the jurors that
they “must follow the law” as the court explained it, even if they
disagreed with it, and that, if they believed the attorneys’
comments about the law conflicted with the court’s instructions,
they had to follow the court’s instructions.
The prosecutor began his closing argument with a review of
the facts of the case and proceeded to discuss the applicable law.
37
Among other things, the prosecutor stated: “You’ve heard this
phrase ‘beyond a reasonable doubt’ from the very first day you
were here . . . all the way up until . . . 20 minutes ago when the
judge was reading you the jury instructions. What is this? What
does it mean? Well, beyond a reasonable doubt is what they call
the standard of proof. It means this is how sure you have to be
before you can vote guilty. This is how sure you have to be,
beyond a reasonable doubt.” The prosecutor quoted and
discussed the jury instructions. The prosecutor stated that
“abiding conviction” meant the jurors “are convinced . . . it
happened this way” and that, if someone asked a juror in a week,
a month, a year, or five years later whether he or she made the
right decision, the juror would say, “Yeah, I made the right
decision. I am comfortable that I made the right decision.”
The prosecutor described standards that “are higher than
beyond a reasonable doubt,” such as “beyond a shadow of a doubt”
or “100 percent sure,” which, the prosecutor said, the law did not
require. The prosecutor stated (and this is the basis of Adams’s
prosecutorial misconduct argument): “Another way to think of
that is kind of, you are convinced beyond a reasonable doubt if
you think the only reasonable explanation is that [Adams is]
guilty. That fits all the facts that you heard. The only
reasonable explanation that fits all the facts you heard is that
he’s guilty. If that’s what you think, you are convinced beyond a
reasonable doubt.” Counsel for Adams did not object to these
38
statements or request an admonition, and the prosecutor moved
on to discuss the charges in the case.
2. Applicable Law
“Advocates are given significant leeway in discussing the
legal and factual merits of a case during argument. [Citation.]
However, ‘it is improper for the prosecutor to misstate the law
generally [citation], and particularly to attempt to absolve the
prosecution from its . . . obligation to overcome reasonable doubt
on all elements.’” (People v. Centeno (2014) 60 Cal.4th 659, 666
(Centeno); accord, People v. Medellin (2020) 45 Cal.App.5th 519,
532-533.) “‘The case law is replete with innovative but ill-fated
attempts to explain the reasonable doubt standard.’” (People v.
Bell (2019) 7 Cal.5th 70, 111.) The Supreme Court has “stopped
short, however, of categorically disapproving the use of
reasonable doubt analogies or diagrams in argument,” and
instead directed reviewing courts to “assess each claim of error on
a case-by-case basis.” (Centeno, at p. 667.) A defendant asserting
prosecutorial misconduct must “‘establish a reasonable likelihood
the jury construed the remarks in an objectionable fashion.’”
(People v. Potts (2019) 6 Cal.5th 1012, 1036 (Potts); see Bell, at
p. 111.) “‘In conducting this inquiry, we “do not lightly infer” that
the jury drew the most damaging rather than the least damaging
meaning from the prosecutor’s statements.’” (People v. Ramirez
(2022) 13 Cal.5th 997, 1129.)
“‘A claim of prosecutorial misconduct is ordinarily
preserved for appeal only if the defendant made “a timely and
specific objection at trial” and requested an admonition.’
[Citations.] . . . These failures could be excused if an objection
would have been futile or a request for admonition ineffectual.”
39
(Potts, supra, 6 Cal.5th at p. 1035; see People v. Johnsen (2021)
10 Cal.5th 1116, 1164-1165 (Johnsen).)
3. Adams’s Prosecutorial Misconduct Argument
Fails
Adams did not preserve his contention the prosecutor
committed misconduct. Counsel for Adams neither objected to
the prosecutor’s argument nor requested an admonition, and
nothing in the record suggests those actions would have been
futile or ineffectual. (Johnsen, supra, 10 Cal.5th at p. 1165; Potts,
supra, 6 Cal.5th at p. 1035; see Centeno, supra, 60 Cal.4th at
p. 674 [“A prosecutor’s misstatements of law are generally
curable by an admonition from the court.”].)11
11 Adams asserts his trial counsel rendered ineffective
assistance by failing to object to the prosecutor’s “misstatement of
the reasonable doubt standard” that “was inconsistent with
CALCRIM No. 220 and section 1096.” Adams, however, cannot
show he received ineffective assistance under Strickland v.
Washington (1984) 466 U.S. 668 because he cannot demonstrate
prejudice. (See Johnsen, 10 Cal.5th at p. 1168 [court’s correct
instructions “mitigated any misimpression the prosecutor’s
misstatements of the reasonable doubt standard would have
given [and] reduced any risk the jury would be misled by defense
counsel’s similar misstatements”]; People v. Ramirez (2022) 79
Cal.App.5th 48, 62 [“even assuming deficient performance,
defendant was not prejudiced by the failure to object to the
prosecution’s argument” because the court properly instructed
the jury on the burden of proof], review granted August 17, 2022,
S275341.) Contrary to Adams’s characterization of the evidence
(“quite slim”), as discussed there was substantial evidence Adams
had the specific intent to maim Briggs.
40
Even if Adams had not forfeited the argument, he has not
shown a reasonable probability the jury misconstrued the
prosecutor’s statements. To be sure, the prosecutor’s attempt to
explain the reasonable doubt standard was not a good idea.
Stating that another way to think of the reasonable doubt
standard was to consider whether “the only reasonable
explanation is that [Adams] is guilty” was not an entirely
accurate statement of the law. (See Centeno, supra, 60 Cal.4th at
p. 675 [“the prosecutor’s argument urging the jury to convict
based on a reasonable account of the evidence misstated the
burden of proof”]; but see People v. Roberts (2021) 65 Cal.App.5th
469, 482, fn. 1 [prosecutor did not commit misconduct by
“describing the reasonable doubt standard as if the ‘evidence
points to a reasonable conclusion that [the defendant] is guilty
beyond any reasonable doubt, then he’s guilty’”]; People v. Cowan
(2017) 8 Cal.App.5th 1152, 1162 [prosecutor’s explanation that
“beyond a reasonable doubt means ‘you’re firmly convince[d] that
guilt is the only reasonable interpretation of the evidence’” was
“an accurate statement of the meaning of beyond a reasonable
doubt”].)
The prosecutor’s misstatement, however, was brief and
isolated, and the trial court twice correctly defined the reasonable
doubt standard and instructed the jury to follow the court’s
instructions if anything the attorneys said conflicted with its
instructions on the law. In addition, before the prosecutor’s
comment on the beyond-a-reasonable-doubt standard, he recited
the correct definition of reasonable doubt (using the court’s
instruction), and the jurors had a written copy of the correct
definition during deliberations. And after the prosecutor’s
remark, he did not discuss the reasonable doubt standard again
41
or apply his rephrasing of the standard to the evidence, as the
prosecutor did in Centeno, supra, 60 Cal.4th at pages 671-672.
“[W]e presume not only that jurors follow instructions in general
[citation], but also ‘that jurors treat the court’s instructions as a
statement of the law by a judge, and the prosecutor’s comments
as words spoken by an advocate in an attempt to persuade.’”
(Potts, supra, 6 Cal.5th at p. 1037; see People v. Cortez (2016)
63 Cal.4th 101, 131-132 [“‘argument should “not be judged as
having the same force as an instruction from the court”’”].)
Under these circumstances, it was not reasonably probable the
jurors misunderstood the prosecutor’s comment about the
reasonable doubt standard. (See Johnsen, supra, 10 Cal.5th at
p. 1167 [“it was not reasonably likely that the prosecutor’s
misstatements caused one or more jurors to convict [the
defendant] on a standard lower than beyond a reasonable doubt”
because the court “provided the jury with correct instructions on
reasonable doubt and directed the jury to follow these
instructions in the event of any conflicting statements”]; Potts,
supra, 6 Cal.5th at pp. 1037-1038 [where the prosecutor’s
challenged remarks were brief and referred to the court’s
instructions, and the court correctly instructed the jury and gave
each juror a copy of the instructions, it was “not reasonably likely
the jury construed the remarks in an objectionable fashion, nor
that ‘the jury understood the instructions to allow conviction
based on’ inadequate proof”]; Cortez, supra, 63 Cal.4th at
pp. 133-134 [“no reasonable likelihood” the jury misconstrued or
misapplied the prosecutor’s challenged remarks, where the
comments “were brief and constituted a tiny, isolated part of the
prosecution’s argument,” the prosecutor referred to the jury
42
instruction on the topic, and the court properly defined
“‘reasonable doubt’” in its oral and the written instructions].)12
Adams argues the prosecutor’s statement “that the jury
must convict if it finds guilt is the only reasonable interpretation
to be gleaned from the evidence that was presented” implied “the
jury need not also consider whether that very evidence was
sufficient enough in the first place to provide proof beyond a
reasonable doubt.” The prosecutor’s statement made no such
implication, particularly given that, moments before the
challenged remark, the prosecutor properly explained “abiding
conviction” and told the jurors they could not convict unless they
found the evidence left them with the long-lasting conviction that
“it happened this way.” (See § 1096 [reasonable doubt “is that
state of the case, which, after the entire comparison and
consideration of all the evidence, leaves the minds of jurors in
that condition that they cannot say they feel an abiding
conviction of the truth of the charge”].)
12 “Error with respect to prosecutorial misconduct is
evaluated under [Chapman v. California (1967) 386 U.S. 18], to
the extent federal constitutional rights are implicated, and under
[People v. Watson (1956) 46 Cal.2d 818] “if only state law issues
were involved. [Citation.] Chapman is implicated if the
prosecutor’s conduct renders the trial so fundamentally unfair
that due process is violated. [Citations.] Watson applies where
the prosecutor uses deceptive or reprehensible methods to
attempt to persuade either the court or the jury.” (People v.
Clark (2021) 62 Cal.App.5th 939, 972, internal quotation marks
omitted.)
43
E. There Was No Cumulative Prejudice
Finally, Adams contends that the “cumulative effect” of the
errors he argues the trial court committed “undermined
confidence in the integrity of the trial, rendered the trial
fundamentally unfair, and deprived [him] of his constitutional
right to due process.” Not here. “In theory, the aggregate
prejudice from several different errors occurring at trial could
require reversal even if no single error was prejudicial by
itself. ‘[A] series of trial errors, though independently harmless,
may in some circumstances rise by accretion to the level of
reversible and prejudicial error.’” (In re Reno (2012) 55 Cal.4th
428, 483; accord, People v. Kocontes (2022) 86 Cal.App.5th 787,
891-892; People v. Sorden (2021) 65 Cal.App.5th 582, 618.) “‘The
“litmus test” for cumulative error “is whether defendant received
due process and a fair trial.”’” (People v. Thomas (2021)
64 Cal.App.5th 924, 971.)
The (at most) two errors in Adams’s retrial (the trial court’s
use of aggravated mayhem instead of simple mayhem as the
underlying felony for the felony murder instruction and the
prosecutor’s arguable misstatement of the reasonable doubt
standard) did not cumulate to deprive Adams of a fair trial. As
discussed, the jury’s finding Adams had the specific intent to
commit aggravated mayhem encompassed a finding Adams had
the specific intent to commit simple mayhem. Therefore, that
instructional error did not result in any prejudice to Adams.
And, as discussed, in light of the trial court’s proper instructions
on the reasonable doubt standard, there was no reasonable
probability the jury misunderstood the prosecutor’s
misstatement. The one-and-a-half to two errors in this case do
not justify reversal. (See People v. Seumanu (2015) 61 Cal.4th
441293, 1365 [“no cumulative prejudice requiring reversal” where
the prosecutor’s misstatements “were . . . not prejudicial in light
of the strong evidence of guilt and the instruction informing the
jury that the arguments of counsel are not evidence”]; People v.
Sta Ana, supra, 73 Cal.App.5th at p. 64 [because there was “only
one error,” the “defendant’s cumulative prejudice argument must
fail”].)
DISPOSITION
The judgment is affirmed.
SEGAL, J.
We concur:
PERLUSS, P. J.
FEUER, J.
45