Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of San Bernardino County No. FVI021082, Eric M. Nakata, Judge.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Lynne G. McGinnis and Gil Gonzalez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
ARONSON, J.
A jury convicted Richard Collins of two counts of attempted, premeditated murder (Pen. Code, §§ 664, 187), including an attempt on a peace officer’s life (§§ 664, subds. (e) & (f); 187, subd. (a)), assault with a deadly weapon (§ 245, subd. (a)(1)), assault on a peace officer with a semiautomatic firearm (§ 245, subd. (d)(2)), drawing a firearm in the presence of a peace officer (§ 417, subd. (c)), prohibited possession of a firearm by a convicted felon (§ 12021, subd. (a)(1)), and resisting an executive officer by means of threat or violence (§ 69). The jury also found to be true allegations that defendant personally used a knife in the attempt on one victim’s life (§ 12022, subd. (b)(1), inflicted great bodily injury on the victim (§ 12022.7, subd. (a)), personally used a firearm in the attempt on the peace officer’s life (§ 12022.53, subd. (b)), and personally used a firearm in assaulting the officer and resisting arrest (§§ 1203.06, subd. (a)(1), 12022.5, subd. (a)). In a bifurcated proceeding, the trial court found defendant suffered three prior convictions (§§ 1170.12, subds. (a)-(d); 667, subds. (b)-(i)), three prior serious felony convictions (§ 667, subd. (a)(1)), and had served four prior prison terms (§ 667.5, subd. (b)). Despite stays on several counts and allegations, defendant’s sentence totaled 108 years to life.
All further statutory references are to the Penal Code, unless otherwise specified.
Defendant raises a host of contentions. With respect to the attempted murder of Kelly Blokzyl, defendant attacks the opinion testimony of a police officer concerning the infliction of the victim’s knife wounds, the sufficiency of the evidence to support defendant’s conviction for attempted, premeditated murder, and the trial court’s failure to instruct the jury sua sponte concerning heat of passion. Defendant also raises multiple issues related to the warrantless, armed entry by police officers into the home in which defendant holed up after the knife attack on Blokzyl. He challenges the sufficiency of the evidence to support his conviction for the attempted, premeditated murder of the arresting officer and the sufficiency of the evidence concerning two of his prior convictions, and he asserts the prosecutor’s comments in closing argument constituted misconduct. As we explain, none of defendant’s challenges require reversal, and we therefore affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
Blokzyl pulled into the parking lot of a mini-mart in Lucerne Valley. As he approached the propane dispenser to refill his barbeque tank, he noticed defendant drive into the parking lot in a white sedan. Defendant exited his vehicle and accosted Blokzyl, demanding whether he “always drove this way.” Becoming increasingly agitated, defendant accused Blokzyl, “Well, you cut me off. You almost hit my vehicle.” Blokzyl tried to explain he had to stop for another vehicle so he could safely turn into the parking lot. Although Blokzly believed he had the right of way, he nevertheless apologized to defendant to defuse the confrontation. Defendant, however, with a rising tone in his voice, became angrier and was soon yelling at Blokzyl. Blokzyl backed away in a further effort to place defendant. But defendant lunged at him, reaching for his throat and grabbing Blokzyl’s necklace. Pulling Blokzyl towards him with enough force to break the necklace, defendant struck Blokzyl on the left side of his chest. Blokzyl had not seen defendant wielding any weapon, but he immediately felt a sharp pain where defendant struck him, and blood began to run freely from a two-inch gash there. The blood poured to Blokzyl’s knees.
Blokzyl clutched his chest, and called for help from an attendant. Before defendant entered his nearby car, he bent his rear license plate upwards to make it less visible. Blokzyl bent the plate down and the attendant recorded the number as defendant sped off. The attendant had witnessed the confrontation, heard defendant complaining about being cut off, and saw defendant push Blokzyl, but did not see him use a weapon.
Paramedics responding to the scene bandaged Blokzyl’s wound. When the paramedics were summoned to another emergency call, Blokzyl’s wife drove him to the emergency room. There, a doctor determined the stabbing thrust did not penetrate Blokzyl’s heart or lungs. The wound, however, was deep: the doctor’s probe penetrated to a depth of two and one-half inches into Blokzyl’s chest. After receiving stitches to close the wound, Blokzyl underwent a series of CAT scans and X-rays to ensure he had suffered no internal bleeding.
Back at the mini-mart, a witness had stepped forward to inform Deputy Sheriff Greg Winegar that he knew where to locate Blokzyl’s assailant. The witness directed the officer to a trailer on Blake Road two or three minutes away. There, Winegar found a white Ford matching the suspect vehicle’s description. The rear license plate had been bent up and the car was blanketed with a tarp covered by a piece of plywood. The door handle of the car had fresh blood on it and, though it was a cool evening, the hood of the car was warm to the touch. A license check revealed the vehicle was registered to defendant. A man and a woman answered Winegar’s knock at the trailer door, but neither knew or disclosed defendant’s whereabouts.
The next day, another deputy returned to the Blake Road area, where he received a tip defendant was staying at a residence on Squaw Bush Road in Lucerne Valley. The deputy, Michael Gilley, proceeded to the residence with Sergeant Errol Bechtel, Detective Dale Jensen, and two other deputies. Approaching the residence, the deputies noticed the front door was open. Because one of the vehicles in which they arrived was a marked unit, and based on the open front door, the deputies feared defendant might have detected their approach. Based on his violent assault the day before and information they had received that defendant was armed, the posse determined the circumstances called for a “rapid approach” and entry of the home. A law enforcement helicopter circled overhead.
Bechtel and Gilley entered the front door, with Bechtel calling out, “Richard.” Bechtel knew defendant from previous encounters. Bechtel heard footsteps approaching. When defendant entered the living room and spotted Bechtel, who was wearing his uniform, defendant uttered, “Uh-oh,” and retreated down a hallway. Bechtel followed him. He spied defendant in a well-lit bedroom grasping an assault rifle with a raised sight, pointed towards the ground. Yelling, “Gun,” Bechtel reached for his service weapon and when he drew it out, defendant stated, “Look,” as he pulled his weapon up to waist height and pointed it directly at Bechtel, just eight feet away. Bechtel reacted immediately by sidestepping to his left and firing a round before defendant could discharge his weapon. Bechtel and Gilley were able to retreat out of the house. Defendant had not fired a shot.
Bechtel positioned himself under a window, fired two more rounds into the house when he saw movement in the bottom portions of curtains in the window, and then ran and dove over a rock wall. From the rear of the house, Gilley could hear defendant declaring, “I’m going to kill a cop today. I’m not going to jail. Shoot me.” Detective Jensen also heard defendant stating he would not come out and that he “would kill a cop today.” Throughout the standoff, which lasted nearly an hour, the deputies observed defendant appearing in the doorway and in front of a window, sometimes with the rifle in his hands and sometimes without it. Later, the deputies heard a hammering noise and loud banging from the house. Eventually, defendant exited the house without his gun and surrendered.
Law enforcement swept the house, finding no one else present. The deputies noticed a portion of drywall had been hammered to the wall with roofing nails. Obtaining a search warrant, Jensen found defendant had secreted his assault rifle behind the drywall barrier he had constructed. Loaded with nine bullets in a magazine, plus one round chambered and ready to fire, the rifle’s safety was in the “fire[] position.” Investigators also found a Samurai sword, a battle axe, a machete, a dagger, shears, a multi-bladed knife tool, nunchackus, and 12-gauge shotgun shells in the bedroom of the house.
The defense rested without presenting any evidence.
II
DISCUSSION
A. Issues Related to the Attempted Murder of Blokzyl
1. Detective Jensen’s Testimony
Defendant challenges the sufficiency of the evidence to support the jury’s conclusion he attempted to murder Blokzyl with premeditation. As part of his challenge, defendant contends the trial court erred in allowing Jensen to give opinion testimony as an expert witness. He asserts the prosecution failed to qualify Jensen as an expert and, in instructing the jury only concerning the evaluation of lay witness testimony, the trial court failed to instruct the jury how to evaluate expert opinion. (See Judicial Council of Cal. Crim. Jury Instns. CALCRIM Nos. 332 & 333.) The Attorney General agrees the trial court should have instructed the jury on expert testimony (CALCRIM No. 333), but asserts Jensen possessed the requisite qualifications to testify as an expert and that the error in omitting the instruction was harmless because other instructions directed the jurors to evaluate his credibility (see CALCRIM No. 105).
We conclude there was no basis for Jensen, who was not a percipient witness, to offer opinion testimony because his opinions generally stated obvious matters requiring no particular scientific or expert knowledge. Consequently, with two exceptions, no qualification of or instruction on expert testimony was necessary, and the error in allowing Jensen to render opinions that were obvious from the facts was harmless.
Specifically, defendant attacks as unqualified expert testimony Jensen’s opinions that: (1) the one-inch width and penetrating nature of the wound suggested it was inflicted with a knife, in particular a dagger; (2) the horizontal orientation of the wound demonstrated an intent to penetrate between the victim’s ribs; (3) the location of the wound suggested it could result in great bodily injury or death because of its proximity to vital organs; and (4), based on the foregoing, Blokzyl’s assailant had “the intent... to at least incapacitate immediately if not kill with that stabbing motion.” On the last point, we agree with defendant that Jensen, who the prosecutor made no effort to qualify as an expert concerning psychological matters, had no basis to opine on the subject of Blokzyl’s attacker’s intent.
Similarly, as to Jensen’s first opinion, defendant complains: “There is no indication in the record that Jensen[] had any scientific training regarding whether a puncture wound was caused by a knife, and in particular a dagger.” Defendant correctly observes that “[m]issing from the record is an adequate foundation for such an opinion such as any medical training in which injury causation could be acquired.” Absent the requisite qualifications, Jensen had no basis to opine as he did. (See Evid. Code, § 720, subd. (a) [“ A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates”].)
Nevertheless, the trial court’s error in permitting Jensen to testify on this topic over defendant’s objection was harmless. Simply put, it was unimportant whether the stabbing instrument was a knife or a dagger. The salient point was that defendant had used some sharp means to pierce Blokzyl’s chest in the manner and location he did, which was obvious to the jury from photographs of the wound and from Blokzyl’s testimony.
Because Jensen’s other conclusions were so obvious and required no expertise or scientific knowledge, we reject defendant’s contention those opinions amounted to expert conclusions or that they were inadmissible as lay testimony because they “were outside the realm of common experience.” (See § 801, subd. (a) [expert opinion limited to testimony about matters beyond average juror’s common experience]; People v. Williams (1992), 3 Cal.App.4th 1326, 1333.) In other words, no expertise or scientific knowledge was necessary to conclude Blokzyl had been stabbed with a sharp object and that stabbing a person in the chest horizontally to avoid the rib cage could result in great bodily injury or death because of the proximity of vital organs. “Lay opinion testimony is admissible where no particular scientific knowledge is required....” (People v. Williams (1988), 44 Cal.3d 883, 915; see generally Evid. Code, § 800.)
But we agree with defendant there was no basis for Jensen to offer these opinions. As defendant points out, while a lay witness may offer opinion testimony, it is generally “limited to an opinion” that is “based on the perception of the witness....” (Evid. Code, § 800.) Jensen, however, did not respond to the scene of the stabbing, nor did he otherwise personally observe Blokzyl’s wounds; instead, he relied on Blokzyl’s testimony and on photographs of the wound. Having no percipient testimony to offer, there was no basis for Jensen to offer a lay opinion on the topics defendant challenges: infliction of the wound with a sharp instrument, its horizontal orientation, its location, or the attacker’s intent derived from these features of the attack. Consequently, the trial court should have sustained defendant’s objection that Jensen lacked “foundation as to his opinion” concerning the attacker’s intent.
The error, however, was harmless. Precisely because the deadly danger of stabbing someone between the ribs is so obvious, and because the underlying facts of the stabbing were not established by Jensen’s testimony but by ample other evidence, a more favorable result is not reasonably probable had the trial court sustained defendant’s objection. (See People v. Bledsoe (1984), 36 Cal.3d 236, 252 [erroneous admission of evidence is reviewed for prejudice under state law standard in People v. Watson (1956), 46 Cal.2d 818, 836].)
Resisting this conclusion, defendant relies on People v. Killebrew (2002), 103 Cal.App.4th 644, 651 (Killebrew), to demonstrate prejudicial error. The court in Killebrew recognized “‘“there is a kind of statement by the witness which amounts to no more than an expression of his general belief as to how the case should be decided.”’” Killebrew warned against such statements in expert testimony because “‘“it would tend to suggest that the judge and jury may shift responsibility for decision to the witnesses....”’” (Killebrew, at p. 651.) Killebrew found prejudicial error when the trial court permitted a gang expert to testify that the concept of a gang gun in gang culture (id. at p. 652) meant each of the gang members in three cars subjectively knew of guns in two of the cars and “jointly possessed the gun[s] with every other person in all three cars for their mutual protection.” (Id. at p. 658.)
Killebrew does not aid defendant. The acute danger there was that the jury’s unfamiliarity with gang culture, a topic beyond the common experience of most jurors (Killebrew, supra, 103 Cal.App.4th at p. 653), would cause the jury to abdicate its responsibility to decide the ultimate issues of knowledge and intent, and instead rely on the expert’s unequivocal opinion about “‘“how the case should be decided....”’” (Id. at p. 651.) Here, in contrast and as noted, Jensen’s testimony did not involve obscure expertise. Rather, it consisted of obvious conclusions about intent the jurors were fully equipped to draw or reject given a rudimentary understanding of the human body, i.e., that a stab wound to the chest between the ribs could produce great bodily injury or death.
The trial court instructed the jury, “You must decide what the facts are in this case” and “You alone must judge the credibility and believability of the witnesses.” (Italics added.) We discern no reason to suppose the jury ignored these instructions. (People v. Waidla (2000), 22 Cal.4th 690, 725.) To the contrary, given the obvious nature of Jensen’s conclusions, and the jury’s ability to easily evaluate for itself the facts underlying that testimony, we presume the jury did not defer to Jensen its responsibility to determine defendant’s intent, but instead “‘meticulously followed the instructions given.’” (People v. Cruz (2001), 93 Cal.App.4th 69, 73; accord, People v. Clair (1992), 2 Cal.4th 629, 663, fn. 8; People v. Mickey (1991), 54 Cal.3d 612, 689, fn. 17.) Accordingly, it is not reasonably probable the jury would have reached a different result absent Jensen’s challenged opinions.
2. The Evidence Supports the Attempted, Premeditated Murder Conviction
Defendant challenges the sufficiency of the evidence to support his conviction for attempted murder of Blokzyl and the jury’s conclusion he acted with premeditation. On appeal, the reviewing court must view the evidence in the light most favorable to the judgment. (People v. Elliot (2005), 37 Cal.4th 453, 466 (Elliot).) It is the trier of fact’s exclusive province to assess witness credibility and to weigh and resolve conflicts in the evidence. (People v. Sanchez (2003), 113 Cal.App.4th 325, 330.) We therefore presume in support of the judgment the existence of every fact reasonably inferred from the evidence. (People v. Crittenden (1994), 9 Cal.4th 83, 139.) The test is whether substantial evidence supports the conclusion of the trier of fact, not whether the evidence proves guilt beyond a reasonable doubt. (Ibid.; People v. Johnson (1980), 26 Cal.3d 557, 576 (Johnson).) In other words, that the circumstances could be reconciled with a contrary finding does not warrant reversal of the judgment. (People v. Bean (1988), 46 Cal.3d 919, 932-933.) Thus, a defendant attacking the sufficiency of the evidence “bears an enormous burden.” (Sanchez, at p. 330.) The uncorroborated testimony of a single witness is sufficient to sustain a conviction. (People v. Gammage (1992), 2 Cal.4th 693, 700.)
Specifically, defendant contends no evidence supports the jury’s conclusion he intended to kill Blokzyl. Given the standard of review, defendant in effect contends no rational trier of fact could discern in his actions the requisite intent to slay Blokzyl. (Johnson, supra, 26 Cal.3d at p. 576.) We disagree.
“Attempted murder requires the specific intent to kill and the commission of a direct but ineffectual act toward accomplishing the intended killing.” (People v. Lee (2003), 31 Cal.4th 613, 623.) Intent is a question of fact for the jury; rarely susceptible of direct proof, it is instead inferable from facts and circumstances. (People v. Kwok (1998), 63 Cal.App.4th 1236, 1245 (Kwok).) Here, in a heated altercation, defendant stabbed Blokzyl horizontally in the chest to a depth of two and one-half inches. Defendant protests that “proof of assault with a deadly weapon does not itself provide the basis for an inference of intent to murder.” (See People v. Belton (1980), 105 Cal.App.3d 376, 381.)
But the jury is entitled to ascertain the perpetrator’s intent from the manner in which he committed the offense. (See generally Kwok, supra, 63 Cal.App.4th at p. 1245; see also People v. Anderson (1968), 70 Cal.2d 15, 26-27.) Entirely apart from the use of a deadly weapon, the attack betrayed viciousness and calculation the jury could reasonably conclude was homicidal. Defendant did not just stab at Blokzyl, but increased the intensity of the thrust by simultaneously pulling his victim into the blade. The jury could reasonably discount any intent merely to frighten Blokzyl because defendant did not brandish his weapon. To the contrary, he kept it hidden and sprang it upon Blokzyl unawares, so he could not defend himself. Based on the surprise nature of the thrust, its intensity, the proximity to vital organs, and, as noted, the horizontal entry of the blade, the jury could reasonably infer a malicious intent from these circumstances and, specifically, an intent to kill and not merely to wound or to frighten.
These circumstances also support the jury’s conclusion defendant attempted to kill Blokzyl with premeditation and deliberation. Deliberation refers to the actor carefully weighing considerations in forming a course of action; premeditation means the actor thought over those considerations in advance. (People v. Halvorsen (2007), 42 Cal.4th 379, 419.) “‘The process of premeditation and deliberation does not require any extended period of time. “The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly....” [Citations.]’” (People v. Koontz (2002), 27 Cal.4th 1041, 1080 (Koontz).) The jury could reasonably conclude the combined acceleration, location, and horizontal orientation of defendant’s stabbing thrust were, in effect, too coincidental to be a coincidence — disclosing instead that defendant harbored a premeditated intent to kill Blokzyl.
Urging us to view the facts in his favor, defendant argues “the wound was caused by a sharp item that Blokzyl may have had under his shirt, or by a set of keys,” occurring after a “brief argument with a single blow” that “was a spontaneous response to a perceived traffic impropriety.” Defendant also complains Blokzyl’s “description of the wound and medical treatment received defies common sense.” But the notion defendant inflicted a cleanly-sliced wound 2.5 inches deep and an inch or two wide with a set of car keys itself defies common sense. Moreover, no evidence suggested the victim had any sharp items on his person to cause such a wound; in particular, Blokzyl expressly denied possessing any weapon and it was for the jury to evaluate his credibility. The jury viewed photographs of the wound and was entitled to judge from its width, depth, and obvious proximity to vital organs that only happenstance kept it from being fatal. In essence, the conclusions defendant urges us to draw are based merely on plausible inferences favoring his construction of the record but, as explained above, the standard of review compels a reviewing court to draw all reasonable inferences in favor of the judgment. Substantial evidence supports the jury’s verdict.
3. No Heat of Passion Instruction Was Required
Defendant also argues the facts entitled him to a heat of passion instruction (CALCRIM No. 603), which he asserts the trial court erred in failing to provide sua sponte. The trial court’s sua sponte duty to instruct on a lesser included offense arises when there exists substantial evidence “from which a rational jury could conclude that the defendant committed the lesser offense, and that he is not guilty of the greater offense.” (People v. DePriest (2007), 42 Cal.4th 1, 50.) Attempted voluntary manslaughter is a lesser included offense of attempted murder when heat of passion negates the malice necessary to constitute murder. (People v. Barton (1995), 12 Cal.4th 186, 199; see § 192, subd. (a) [voluntary manslaughter includes an intentional and unlawful killing “upon a sudden quarrel or heat of passion”].)
The heat of passion necessary to reduce attempted murder to attempted voluntary manslaughter requires adequate provocation. The provocation, viewed from an objective standpoint and not the defendant’s subjective perspective, “must be such that an average, sober person would be so inflamed that he or she would lose reason and judgment.” (People v. Lee (1999), 20 Cal.4th 47, 60.) Under this standard, no heat of passion instruction was required.
People v. Oropeza (2007), 151 Cal.App.4th 73 (Oropeza) is instructive. There, evidence favorable to the defendant showed that when another vehicle cut off the vehicle in which he was riding, he encouraged the driver of his vehicle to pursue the offenders. The drivers in the two vehicles raced, nearly colliding several times, and the occupants of the two vehicles exchanged rude hand gestures. After the other vehicle swerved several times at defendant’s vehicle in a “‘scary’” fashion, defendant fired a shot in response, killing a passenger in the other vehicle. (Id. at pp. 79-81.)
The Oropeza court observed “[t]here is certainly evidence appellant acted in the heat of passion” after the incident began with the other vehicle cutting off the defendant’s truck. (Oropeza, supra, 151 Cal.App.4th at p. 83.) The court also noted, however, that “[w]hile an ordinarily reasonable person might be angered by the act, such a person would not pursue or encourage the driver of a vehicle in which he or she was a passenger to follow the offending vehicle at a high rate of speed and engage in highly aggressive driving and abusive personal behavior.” (Ibid.) Concluding no voluntary manslaughter instruction was required, the court explained: “A defendant may not provoke a fight, become the aggressor, and, without first seeking to withdraw from the conflict, kill an adversary and expect to reduce the crime to manslaughter by merely asserting that it was accomplished upon a sudden quarrel or in the heat of passion. The claim of provocation cannot be based on events for which the defendant is culpably responsible.” (Ibid.) So it is here.
Defendant attempts to distinguish Oropeza on grounds that case involved murder with a firearm after the defendant encouraged the driver to go to “extraordinary efforts of pursuing the offender who left the scene....” But these distinctions are slight and immaterial. Here, defendant pursued Blokzyl into the parking lot of the minimart and continued to pursue a confrontation with him after Blokzyl apologized, and pursued the matter still further when Blokzyl, displaying no aggression, attempted to withdraw. As in Oropeza, while defendant “showed an abundance of human weakness, it was not of a type such that the law is willing to declare his acts less culpable.” (Oropeza, supra, 151 Cal.App.4th at p. 83.) The trial court therefore properly refrained from instructing the jury concerning attempted voluntary manslaughter based on heat of passion.
B. The Trial Court Properly Resolved Issues Related to the Deputies’ Warrantless Entry into the Home Occupied by Defendant and Admission of Evidence Found There
1. The Warrantless Entry Did Not Violate the Fourth Amendment
Defendant contends the trial court erred in denying his motion to suppress the weapons recovered at the house where the deputies arrested defendant. (U.S. Const., 4th Amend.) The trial court did not err in concluding the warrantless entry did not violate the Fourth Amendment.
The Fourth Amendment only protects expectations of privacy society is prepared to accept as legitimate and reasonable. (Rakas v. Illinois (1978), 439 U.S. 128, 141.) Trespassers do not have a legitimate expectation of privacy in the property on which they trespass. (People v. Satz (1998), 61 Cal.App.4th 322, 325 (Satz).) Nor do squatters. (Whiting v. State, (Md.Ct.App. 2005) 885 A.2d 785 (Whiting).)
The burden of proving the justification for the warrantless entry lies squarely with the prosecution. (People v. Williams (1999), 20 Cal.4th 119, 136.) It is the defendant’s burden, however, to establish a constitutionally reasonable expectation of privacy in the area searched. (People v. Middleton (2005), 131 Cal.App.4th 732, 737, fn. 2; see Rakas v. Illinois, supra, 439 U.S. at p. 143 [issue of “standing” amounts to “whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place”]; accord, People v. Ayala (2000), 23 Cal.4th 225, 254, fn. 3.) Generally, a defendant meets this requirement by showing that an authorized person gave him or her permission to be on the premises, for example as an invited guest. (In re Rudy F. (2004) 117 Cal.App.4th 1124, 1132-1133.) Other relevant factors include whether the defendant holds a property or possessory interest in the place searched, whether the defendant has shown a subjective expectation of privacy, and whether the defendant was legitimately on the premises. (People v. Thompson (1996), 43 Cal.App.4th 1265, 1269-1270.)
While we independently determine whether the Fourth Amendment applies in a given scenario, we must uphold the trial court’s express or implied factual findings if supported by substantial evidence, and we view the evidence in the light most favorable to the trial court’s ruling. (People v. Loewen (1983), 35 Cal.3d 117, 123; People v. Long (1987), 189 Cal.App.3d 77, 82-83 (Long).)
Here, substantial evidence supports the trial court’s conclusion defendant failed to meet his burden to show he had the homeowner’s permission to occupy the premises. Bechtel knew defendant from previous encounters and he also knew the owners of the home, who to his knowledge had never used a caretaker, casting doubt on defendant’s assertion at the suppression hearing that he was minding the home for them. Indeed, far from showing signs of caretaking, the home appeared abandoned and in disrepair, with no electricity, the rooms in disarray, and doors falling off the hinges. Defendant used a screwdriver to pry his way in through the back door. The trial court, as sole judge of witness credibility (Long, supra, 189 Cal.App.3d at p. 82), was entitled to disbelieve defendant’s testimony at the suppression hearing that he coincidentally left his key to the house elsewhere and that he had the owner’s permission to occupy the residence. Because the trial court could reasonably conclude defendant was no more than a trespasser or squatter, his Fourth Amendment claim fails (see Satz and Whiting, ante). Consequently, the trial court properly denied his suppression motion.
2. The Deputies’ Lawful Entry Disposes of Two of Defendant’s Claims
Because the officers lawfully entered the residence, two further appellate challenges made by defendant fail. First, noting he was charged with offenses requiring an officer’s lawful performance of official duties as an element of those crimes, defendant contends we must reverse his conviction on those counts because exigent circumstances did not justify the police invasion of what he continues to characterize as “his residence.” Defendant is correct that one cannot be convicted of an offense against an officer engaged in the performance of official duties unless the officer was acting lawfully at the time. “The rule flows from the premise that because an officer has no duty to take illegal action, he or she is not engaged in ‘duties,’ for purposes of an offense defined in such terms, if the officer’s conduct is unlawful. [Citations.]” (People v. Gonzalez (1990), 51 Cal.3d 1179, 1217.) But, as discussed, having failed to establish he had the homeowner’s permission to occupy the residence, defendant had no reasonable expectation of privacy, as a trespasser or squatter, in the home in which he was arrested, and therefore there was nothing unlawful about the officers’ conduct. To the contrary, the jury was entitled to presume the officers acted in the lawful performance of their duties. (Evid. Code, § 664 [official duty presumed to be performed].)
The four crimes were: attempted murder of a police officer (§§ 664, 187), assault with a firearm on a peace officer (§ 245, subd. (a)(2)), exhibiting a firearm in the presence of a police officer (§ 417, subd. (c), and interfering with an officer’s performance of duty (§ 69).
Second, and similarly, defendant erroneously asserts the trial court neglected a sua sponte duty to instruct the jury concerning the legitimate use of force where an intruder unlawfully enters a residence. (See CALCRIM No. 3477; accord, § 198.5 [presuming a resident’s reasonable fear of imminent peril justifying lethal force where “an unlawful and forcible entry occurred”].) But here, not only was there no evidence the police forcibly entered the residence — the door was open — their entry was not unlawful, as discussed, because defendant had no reasonable expectation of privacy there. Consequently, the trial court had no duty to instruct the jury with CALCRIM No. 3477.
3. Any Error in Admitting Other Weapons Evidence Was Harmless
Defendant also challenges the relevance of several weapons seized in the home after he was arrested and asserts any relevance the weapons may have had was outweighed by their prejudicial nature. Specifically, defendant objected to the admission of “[a] battle axe, double bladed with spear point, a Samurai sword type [sic], and a machete and some other martial art knives and butcher knives.” Following defendant’s arrest, the police obtained a search warrant for the home in which he was arrested, and recovered the weapons pursuant to the search warrant. Most were found in a bedroom, secreted under a mattress.
Defendant argues the weapons were not relevant to any charged offenses and that any marginal relevance constituted prohibited propensity evidence (Evid. Code, § 1101, subd. (a)), prejudicing him in the eyes of the jury as “the sort of person who carries deadly weapons.” (People v. Riser (1956), 47 Cal.2d 566, 577 (Riser), disapproved on other grounds in People v. Chapman (1959), 52 Cal.2d 95 and People v. Morse (1964), 60 Cal.2d 631.) The Attorney General relies on Riser’s observation that, “[w]hen the specific type of weapon used to commit a homicide is not known, it may be permissible to admit into evidence weapons found in the defendant’s possession some time after the crime that could have been the weapon employed. There need be no conclusive demonstration that the weapon in defendant’s possession was the murder weapon. [Citations.]” (Riser, at p. 577; see People v. Smith (2007), 40 Cal.4th 483, 522 [the defendant’s possession of a gun two days after the shooting “‘made it more likely he was the actual shooter’”].) But Riser also noted: “When the prosecution relies, however, on a specific type of weapon, it is error to admit evidence that other weapons were found in his possession....” (Riser, at p. 577.) Here, there is no question the battle axe, Samurai sword, nunchuckus, and machete could not have been the weapon with which defendant stabbed Blokzyl. Accordingly, Riser does not support the Attorney General’s position.
Nevertheless, while they were not relevant to Blokzyl’s stabbing, the weapons had other pertinence. As the prosecutor pointed out, “the jury is going to hear about them anyway[] since they discussed that in Mr. Collins’[s] [police] interview,” where, for example, defendant apparently denied he brandished a gun at any officer but instead “picked up the Samurai sword.” Because defendant does not address this justification, we presume the record supports it. (See Denham v. Superior Court (1970), 2 Cal.3d 557, 564 [defendant’s burden to demonstrate error; “All intendments and presumptions are indulged to support” lower court’s ruling].) Indeed, the transcript of defendant’s police interview suggests that, contrary to Bechtel’s account that defendant aimed an assault rifle at him, defendant denied having any guns in the home, admitting instead he had “a machete, a couple of hatchets, [and] an ax, uh, a Conan ax with a knife,” one of which he “threw... at one point.” The evidence was therefore relevant concerning defendant’s and Bechtel’s credibility about the circumstances of their confrontation.
Defendant did not expressly object under Evidence Code section 352 to admission of the evidence as more prejudicial than probative. But the record reflects the trial court considered the issue, concluding the weapons were not “overly prejudicial.” The court conceded a battle axe “is a little unusual,” but the record suggests it was more of a novelty item than an object that would inspire fear of the defendant or otherwise prejudice the jury, since, as the prosecutor noted, “It’s one of those [things] that you would find in the five and dime liquor stores.” In any event, we need not decide whether the trial court abused its discretion in admitting the evidence because any potential error was harmless.
The prosecutor demonstrated ignorance of the bar against propensity evidence, justifying admission of defendant’s odd arsenal to “show [his] willingness to do... evil and violence upon people....” Fortunately, he refrained from arguing in this vein before the jury. We presume the trial court was not persuaded by and did not share the prosecutor’s misapprehension of basic evidentiary principles.
Fundamentally, we cannot say admission of the various weapons prejudiced defendant by causing the jury to view him — when they otherwise would not have — “as the sort of person who carries deadly weapons.” (Riser, supra, 47 Cal.2d at p. 577.) To the contrary, ample other evidence established defendant possessed not only the Samurai sword, battle axe, machete and other weapons he admitted in his interview, but also that he carried, and brandished at law enforcement personnel, a far more deadly weapon than any stabbing or martial arts instrument — namely, a bayoneted, loaded assault rifle with a magazine of nine bullets, one round in the firing chamber, and the safety in the “off” position. We see no reasonable probability, indeed no possibility, that the admission of the axe and similar weaponry, which occurred in passing in an inventory of the items recovered in the home in which defendant was arrested, contributed to the verdict. (People v.Watson (1956), 46 Cal.2d 818, 836; Chapman v. California (1967), 386 U.S. 18.) Accordingly, any error in admitting the evidence of the weapons was harmless.
C. Substantial Evidence Supports Defendant’s Conviction for the Attempted, Premeditated Murder of Sergeant Bechtel
Defendant challenges the sufficiency of the evidence to support his conviction for attempting to murder Bechtel and the jury’s conclusion he acted with premeditation. As noted, we must view the evidence in the light most favorable to the jury’s verdict. (Elliot, supra, 37 Cal.4th at p. 466.) Attempted murder requires specific intent to kill the victim — not merely implied malice, criminal recklessness or other, less culpable mental states — “plus a direct but ineffectual act toward its commission.” (People v. Chinchilla (1997), 52 Cal.App.4th 683, 690 (Chinchilla).)
Viewing the evidence in the light most favorable to his position (contra, Elliot, supra, 37 Cal.4th at p. 466), defendant focuses on the fact he did not “actually discharge[]” his weapon. He contends his “possession of a weapon, which may have been brandished, does not suffice for an overt act demonstrating an intent to kill.” Defendant also asserts his “subsequent threats that he was going to kill a cop” disclose nothing of his intent at the time he leveled his assault rifle at Bechtel, but rather constituted “at best criminal threats....” That the circumstances could be reconciled with innocence, however, does not entitle the reviewing court to substitute its judgment or the defendant’s for the jury’s. (People v. Towler (1982), 31 Cal.3d 105, 111.) To the contrary, it must “‘“clearly... appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below.”’” (People v. Resendez (1968), 260 Cal.App.2d 1, 7; accord, Kwok, supra, 63 Cal.App.4th at p. 1245.)
Here, the jury could reasonably discern in defendant’s conduct an intent to kill Bechtel. A person’s intent is rarely revealed by direct evidence, but rather “must usually be derived from all the circumstances of the attempt, including the defendant’s actions.” (Chinchilla, supra, 52 Cal.App.4th at p. 690.) Defendant suggests surprise prevented him from forming the intent to kill Bechtel because “his residence was intruded upon by police entering his abode without a warrant or so much as an announcement of their presence.” But the jury could infer from defendant’s verbal reaction, “Uh-oh,” that he fully grasped the circumstances, specifically that the deputies were there to apprehend him for the attack on Blokzyl. That defendant chose to flee and retrieve his assault rifle rather than surrender demonstrates premeditation. (Koontz, supra, 27 Cal.4th at p. 1080 [“‘“Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly”’”].)
Once defendant retrieved his assault rifle, the jury could reasonably conclude defendant settled upon killing Bechtel rather than being taken by police when he directed Bechtel to “[l]ook” at defendant’s weapon as he pulled it up to waist level and pointed it directly at his intended victim. The jury could reasonably conclude Bechtel’s evasive action and discharge of his own weapon disrupted defendant’s ability to pull his trigger to complete his homicidal intention. In these circumstances, defendant’s act of aiming his weapon at Bechtel in anticipation of killing him suffices to support the attempted murder conviction because, as CALCRIM No. 600 accurately states, the “direct step” necessary for attempted murder “is an immediate step that puts the plan in motion so that the plan would have been completed if some circumstance outside the plan had not interrupted the attempt.” Furthermore, “[a] person who attempts to commit murder is guilty of attempted murder even if, after taking a direct step toward killing, he or she abandons further efforts to complete the crime, or his or her attempt fails or is interrupted by someone or something beyond his or her control.” (Ibid.) Given this series of rapidly evolving events, the jury could reasonably conclude defendant’s later statements that he would “kill a cop today” did not disclose a newly-formed intent or mere criminal threats, but rather reflected back to indicate defendant was not going to miss another opportunity to fulfill his intent. In sum, substantial evidence supports the jury’s attempted murder and premeditation findings.
D. Prosecutorial Misconduct
Defendant asserts the prosecutor committed misconduct in closing argument by stating: “Had [Bechtel] not done that [i.e., sidestepped away from defendant’s pointed gun and fired his own weapon,] what would have happened? Your guess is as good as mine, but more than likely given those circumstances the defendant was going to pull that trigger and he had intent. It’s hard to guess what’s going through a person’s mind a lot of times so you have to look at the circumstances under which he acts to kind of read his mind.” (Italics added.)
Defendant contends the prosecutor’s use of the word “guess” invited the jury to speculate concerning defendant’s intent in aiming his weapon at Bechtel, rather than ascertaining that intent from the evidence. Defendant argues the prosecutor further directed the jury away from its truth-finding function by inviting the jury to “send [a] message to [defendant]” and by stating, “whatever his intent was,” defendant’s conduct “cannot be tolerated.” (Italics added.) Specifically, the prosecutor told the jury: “So what I want you to take into the jury room is that big picture. The defendant’s temper, his anger [sic] to act as he chooses, to inflict physical pain and suffering on an innocent person to get his way, to deliver his [i.e., defendant’s] message, whatever his intent was, cannot be tolerated.” (Italics added.) The prosecutor closed his argument by stating: “And now it’s time to hold him responsible. [¶] You don’t get to stab people, you don’t get to point guns at people. It’s time to be held responsible and I ask you to do that and send that message to him.”
“‘A prosecutor’s... intemperate behavior violates the federal Constitution when it comprises a pattern of conduct so “egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.” [Citations.]...’” (People v. Gionis (1995), 9 Cal.4th 1196, 1214-1215.) Such pervasive misconduct requires reversal unless it is harmless beyond a reasonable doubt. (People v. Hill (1998), 17 Cal.4th 800, 819, 844 (Hill).) As a matter of state law, prosecutorial misconduct involves “‘“the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”’” (People v. Espinoza (1992), 3 Cal.4th 806, 820.) State law misconduct necessitates reversal where it is reasonably probable the prosecutor’s behavior affected the verdict. (Id. at p. 821.)
Defendant argues his attorney’s failure to object to the prosecutor’s statements effectively deprived him of his constitutional right to counsel. To obtain relief under either the California Constitution or the Sixth Amendment to the United States Constitution, a defendant must show that “(1) counsel’s representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the petitioner. [Citations.]” (In re Wilson (1992) 3 Cal.4th 945, 950, citing Strickland v. Washington (1984), 466 U.S. 668, 687-688.) The prejudice prong of the test “‘is not solely one of outcome determination. Instead, the question is “whether counsel’s deficient performance renders the result of the trial unreliable or the proceeding fundamentally unfair.”’” (In re Hardy (2007) 41 Cal.4th 977, 1018, citations omitted.)
We conclude there was no prosecutorial misconduct, and therefore no basis for defense counsel to object. The prosecutor’s isolated use of the word “guess” does not constitute misconduct, nor amount to error that could be reasonably said to have affected the verdict or deprived defendant of a fair trial. In context, in fact, the prosecutor accurately stated the law. As noted, because intent is rarely susceptible of direct proof, it “must usually be derived from all the circumstances of the attempt, including the defendant’s actions.” (Chinchilla, supra, 52 Cal.App.4th at p. 690; Kwok, supra, 63 Cal.App.4th at p. 1245.) Thus, the prosecutor correctly observed “[i]t’s hard to guess what’s going through a person’s mind a lot of times so you have to look at the circumstances under which he acts to kind of read his mind.” (Italics added.) Consequently, the prosecutor correctly focused the jury on “defendant’s temper, his anger [sic] to act as he chooses, to inflict physical pain and suffering on an innocent person to get his way, to deliver his message....”
While the prosecutor could have been more precise by using a word like “ascertain” instead of “guess” for determining defendant’s intent, counsel are afforded wide leeway in argument. (People v. Williams (1997), 16 Cal.4th 153, 221.) Moreover, we presume the jury looked to the trial court’s correct instructions concerning the prosecution’s burden to establish defendant’s specific intent beyond a reasonable doubt, rather than to either counsel’s potential shading of those instructions. (People v. Clair (1992), 2 Cal.4th 629, 663, fn. 8.) Additionally, because we presume jurors understand a prosecutor’s “comments as words spoken by an advocate in an attempt to persuade” but look to the trial court for instructions on the law (ibid.), we find it unlikely the jury concluded it was entitled to “send [a] message to” defendant with a conviction “whatever his intent was....” Rather, just as the prosecutor stated, any message imparted by conviction was to be based on finding defendant to be “responsible” for “stab[bing]” or “point[ing] guns at people.” Even assuming the prosecutor strayed into error with his “whatever his intent was” remark, a single comment does not constitute pervasive misconduct rising to the level of federal error. (Hill, supra, 17 Cal.4th at p. 819.) Nor does it require reversal, even if considered error under state law, given the prosecutor’s correct statements to the jury to look to the circumstances to determine defendant’s intent and the trial court’s correct instructions of law. (Id. at pp. 844-845.)
E. Defendant’s Prior “ADW GBI” Convictions Constituted Serious Felonies
Defendant challenges the sufficiency of the evidence to support the trial court’s conclusion two of his prior convictions, designated on the abstract of judgment for those convictions as “ADW GBI” under section 245, subdivision (a)(1), constituted serious felonies within the meaning of the Three Strikes law. An assault with a deadly weapon is a serious felony for purposes of section 667 enhancements. (§ 1192.7, subd. (c)(23) & (31); People v. Delgado (2008), 43 Cal.4th 1059, 1065 (Delgado).) As defendant notes, however, section 245, subdivision (a)(1), may be violated in two ways: either by assault with a deadly weapon or “by any means of force likely to produce great bodily injury ....” (§ 245, subd. (a)(1), italics added.) Violating the statute by means of force likely to produce great bodily injury (GBI) does not qualify as a serious felony. (People v. Banuelos (2005), 130 Cal.App.4th 601, 605-606 (Banuelos).)
Section 245, subdivision (a)(1), provides in pertinent part: “Any person who commits an assault upon the person of another with a deadly weapon or instrument other than a firearm or by any means of force likely to produce great bodily injury shall be punished by imprisonment in the state prison....”
Defendant asserts the priors here fell under the GBI prong of section 245, subdivision (a)(1), rather than its assault with a deadly weapon prong. Substantial evidence, however, supports the trial court’s conclusion the deadly weapon prong applied. In Delgado, the Supreme Court explained the presumption of regularity and reliability (Evid. Code, § 664) attending a court clerk’s preparation of the abstract of judgment meant the trial court could infer the notation “‘Asslt w DWpn’” was not mere surplusage to the notation “‘PC’” “‘245(a)(1),’” but instead accurately reflected the manner in which defendant committed the offense. (Delgado, supra, 43 Cal.4th at pp. 1069, 1070.) Delgado also noted “an accusatory pleading may specify that a charged offense involves facts making the offense a serious felony.... By this means as well, the serious felony nature of the offense will become an explicit part of the record of conviction, leaving no room for confusion if and when the issue becomes relevant to the sentence for a subsequent felony.” (Id. at p. 1072.)
So it is here. The record before the trial court included the information for the priors in which defendant had been charged with two counts of “Assault Great Bodily Injury And With Deadly Weapon,” alleging defendant assaulted two victims “with a deadly weapon, to wit, Automobile, and by means of force likely to produce great bodily injury.” (Italics added; capitalization modified.) The transcript of defendant’s guilty plea to the prior charges reflected he understood “[t]he weapon alleged is to have been an automobile....” An automobile is a deadly weapon. (People v. Russell (2005), 129 Cal.App.4th 776, 782 [“The law makes clear a person who operates or drives a vehicle in an attempt to injure another person has committed assault with a deadly weapon, to wit, the car”].) The record before the trial court thus amply established that, in using an automobile to commit his prior assaults, defendant violated both prongs of section 245, subdivision (a)(1), i.e., he did so with a deadly weapon and by means of force likely to produce GBI. That defendant fell under the second prong does not mean the first prong did not also apply. (Banuelos, supra, 130 Cal.App.4th at p. 606.) Consequently, substantial evidence supports the trial court’s conclusion defendant’s priors constituted serious felonies.
F. The Cumulative Error Doctrine Does Not Apply
Absent multiple errors to cumulate, the cumulative error doctrine does not apply. (See People v. Kronemyer (1987), 189 Cal.App.3d 314, 349 [“litmus test” of cumulative error analysis is “whether defendant received due process and a fair trial”].) Here, the only conceivable errors in defendant’s trial included the admission of Jensen’s obvious opinions concerning the nature of Blokzyl’s wound, evidence of other knives and lesser weapons that paled next defendant’s possession and use of an assault rifle, and potentially a single misstep by the prosecutor in closing argument that was de minimus in light of his and the trial court’s correct directions to the jury to ascertain defendant’s intent. Although imperfect in the minor respects noted, defendant’s trial was fair. (Compare Hill, 17 Cal.4th at pp. 844-845; see People v. Gordon (1990), 50 Cal.3d 1223, 1278 [a defendant is entitled to a fair trial, not a perfect one], overruled on another point in People v. Edwards (1991), 54 Cal.3d 787, 835.) Consequently, there is no basis for reversal.
III
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, ACTING P. J., MOORE, J.