Opinion
F077545
07-30-2020
THE PEOPLE, Plaintiff and Respondent, v. GARY DALE POOLE, Defendant and Appellant.
Sylvia W. Beckham, under appointment by the Court of Appeal, Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. F15907409)
OPINION
APPEAL from a judgment of the Superior Court of Fresno County. Jonathan B. Conklin, Judge. Sylvia W. Beckham, under appointment by the Court of Appeal, Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Catherine Chatman and R. Todd Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
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Gary Dale Poole was convicted of first degree murder for strangling his Fresno County Jail cellmate to death, with a ligature made of two strips of cloth twisted together. He argues the trial court prejudicially erred in instructing the jury with the standard version of CALCRIM No. 521, as the instruction misstates the law by defining premeditation as a decision to kill made before completion (rather than commission) of the act causing death. We reject this contention and affirm the judgment.
PROCEDURAL HISTORY
Poole was charged, by information, with first degree murder. (Pen. Code, § 187, subd. (a).) A jury found him guilty as charged. The information also contained three prior strike allegations, which Poole admitted after the jury rendered its verdict. Poole was sentenced to 75 years to life in prison.
Undesignated statutory references are to the Penal Code.
FACTS
Poole was booked into Fresno County Jail on March 23, 2014. During the booking process, he punched a wall in frustration, fracturing his fifth metacarpal bone (the long bone that attaches to the pinky knuckle). He was hospitalized for a couple of days. Thereafter, he was housed on the jail medical floor (also known as the infirmary floor). Jail medical staff continued to provide treatment upon Poole's return to the jail. His hand was bandaged, and he was provided with a removable cast. On April 3, 2014, jail medical staff noted Poole had difficulty with hand movements but could wiggle his fingers; on April 11, 2014, jail medical staff noted a slight swelling to the hand. Poole had filed a grievance form on April 7, 2014; in the form he wrote that "untimely delay" in his treatment had put him, those "housed with [him]," and "jail staff" "in jeopardy."
Testimony of Jail Personnel
The incident underlying the first degree murder charge occurred on the night of April 10, 2014, when Poole's cellmate, Michael Stauff, was found strangled to death in the cell the two shared on the jail medical floor. Sunny Armenta and Luis Figueroa were correctional officers working on the medical floor of the jail that night. Armenta testified that Stauff was heavy set and wheelchair bound. She also confirmed that Poole and Stauff were the only inmates in the cell that night and that the cell door was locked.
Shortly after 6:00 p.m. that night, Armenta went around the floor collecting dinner trays from the inmates. Poole handed her his tray and Stauff's tray. Stauff was lying on his bed; nothing appeared to be amiss. Poole asked for additional food, but Armenta had none to offer. An hour later, around 7:02 p.m., Armenta conducted a cell check on the medical floor by looking through the windows on cell doors; she did not observe anything unusual in the cell occupied by Poole and Stauff. Both Stauff and Poole were lying on their bunks and appeared to be asleep. Armenta then went on break; she was on break from about 7:30 p.m. to 8:00 p.m.
Luis Figueroa, who was Armenta's partner on the medical floor that night, testified that security checks were performed hourly. Figueroa performed a security check around 8:00 p.m., while Armenta was on break. As Figueroa was walking down the hallway towards the cell where Stauff and Poole were housed, Poole beckoned him over through the window in the locked door. Poole told Figueroa, "'Stauff needs a nurse.'" Figueroa entered the cell; Figueroa found it unusual that Stauff's wheelchair was at the back of the cell, by the shower. (Armenta had testified that Stauff's wheelchair was usually by his bed at the front of the cell.) Figueroa further testified: "I [saw] green wool blankets placed perfectly over a lump, a body." Poole said, "'I'm pretty sure he's dead'" and "'He's starting to stink.'" Figueroa immediately called for medical staff and additional officers.
Medical staff was located only about 15 feet from the cell. When Figueroa summoned medical staff, three nurses arrived and removed the blankets from Stauff's body and rolled him over; meanwhile Figueroa secured Poole. Stauff's body was face down and there was a "white piece of possibly sheet" around his neck. The white piece of sheet was "tightly wrapped, twisted around his neck." The cloth strip was hampering a nurse who was attempting to provide CPR to Stauff, so Figueroa "radioed for a cut down knife" (he explained the latter "is a knife used to cut nooses that inmates would make to hang themselves"). The nurse eventually cut off the cloth strip with a pair of scissors. A jail doctor then arrived.
Figueroa said the cell shared by Stauff and Poole was equipped with an emergency intercom button. However, at that time of night, no one would have heard or responded to a call for help on the intercom system. Accordingly, Figueroa could not say whether Poole had used the intercom. The only way inmates could contact staff was by physically gesturing or making a noise to attract the attention of a staff member on the tier.
While Figueroa was in the cell, another officer escorted Poole away. Figueroa testified: "I remember as [Poole] walked out of the cell through the corridor, I remember him saying something to the effect of 'I took care of it' or 'I did it' or something to that effect." However, Figueroa did not memorialize this statement in his incident report or relay it to the detective investigating the incident. The first time Figueroa recalled and mentioned this statement was during his trial testimony. Figueroa reiterated he did not recall the "exact statement" that Poole made and acknowledged his memory was not as good at this point as it was earlier.
Armenta was returning from her break, around 8:00 p.m., when she heard Figueroa's call for immediate medical attention. She went directly to the cell occupied by Stauff and Poole, per Figueroa's direction. Stauff looked "beat up."
Two of the nurses who responded to the cell after Figueroa called for medical attention also testified. One nurse described how Stauff appeared when the blankets were first pulled off him: "His face was swollen and he had blood and, like, slobber, like, coming out of his mouth; and his eyes were open and, like, non-responsive." This nurse also said she smelled feces when she attended to the body. Another nurse testified that, upon entering the cell, he checked Stauff for a pulse "[o]n the carotid artery"; he did not feel a pulse. The nurse then began CPR, starting with chest compressions and then using an Ambu bag. He noticed, with the Ambu bag, that air would not get through because "there was some type of white material around the neck[,] very tight." The nurse had not noticed the white material before as it was hidden by folds in Stauff's neck. The nurse testified: "I thought personally that it was strips of ripped t-shirt is what it looked like to me." The strips were pulled so tight the nurse could not "get [his] finger through to pull it out." The nurse cut the ligature off with something called a "safety knife" or cut down knife (he had tried to use a pair of scissors "but could not get it [in] between the material and the skin"). Thereafter, he was able to use the Ambu bag normally.
Dr. Jaynesh Patel was the doctor who responded to Stauff's cell. Stauff appeared "lifeless" and was blue in the face, which suggested circulation had been cut off at the neck. After various efforts to revive Stauff failed, Dr. Patel declared him deceased.
Poole was moved to a new cell, of which he was the sole occupant. A correctional officer searched Poole's cell on April 23, 2014. The officer found a medical slip in the cell; on the back of the slip, written by hand, was a listing of the pros and cons of homicide.
Testimony of Inmate D.H.
D.H., who had been in various types of custody for the previous 40 years, testified for the People. D.H. was housed on the medical floor of the Fresno County Jail in 2014, in the cell next to Stauff's cell, and had befriended Stauff. The walls between cells were thin, and one could easily communicate with people, and hear what was going on, in neighboring cells. Initially, an inmate called Steve or Steven was in the cell with Stauff; subsequently Poole was placed in the cell as well. Stauff would receive a lot of commissary items and D.H. had heard prior cellmates pressuring him to share the items with them. D.H. would also hear Stauff's cellmates arguing with him about which TV programs to watch (Stauff had a penchant for watching cooking shows, which was a frequent point of contention). Eventually, Steve was moved out of the cell and only Stauff and Poole remained.
D.H. referred to Stauff as "Michael Dahl" and "Mr. Dahl"; the discrepancy was never addressed or cleared up in the course of his testimony. D.H. also described Stauff as weighing "maybe 80, 90 pounds," whereas other witnesses described Stauff, respectively, as "heavy," "heavyset," and "obese." Again, this discrepancy was not addressed or cleared up during D.H.'s testimony.
D.H. described events of April 10, 2014, the day Stauff died. D.H. recalled that Stuff was "pretty sad" that day and not feeling well; D.H. sang for him because "he just needed to have his spirits lifted." D.H. further testified: "I can almost definitely say that [Stauff] watched several [cooking shows], [and] there was a dispute about that, I think, later, the later part of the afternoon." D.H. added he heard Poole ask Stauff to "trade some envelopes, stamped envelopes, which were basically used as a barter [item,]" for coffee. D.H. explained that, in jail, stamped envelopes are "used in the same way one would use paper money if they were on the streets."
D.H. noted the tone of Poole's voice revealed "he was irritated by watching the [cooking] program[s]"; Poole sounded more irritated when Stauff would not agree to give him coffee in exchange for stamped envelopes. D.H. continued: "[Stauff] was equally irritated, frustrated and didn't want to feel coaxed into trading, let alone, I guess, giving up the shows that he had become accustomed to watching." Stauff went ahead and watched his shows; he also remained adamant about refusing to trade items with Poole.
D.H. recalled that when dinner trays were collected that evening, Poole asked the officer performing the task whether he could have extra food; the officer rather rudely and indifferently responded in the negative, which also seemed to upset Poole somewhat. After the officer moved on from the cell shared by Poole and Stauff, she came to D.H.'s cell and collected his tray and then continued on to other cells. D.H. testified: "I was paying attention to [the officer] going further past my cell, going to the next cell. And again, once again, I'm at the door just being curious about what's going on. And as I'm watching her go to the next room, I began to hear what clearly, clearly—again, the walls are rather thin—I began to hear ... noise coming from the [adjoining] room." Asked for more details, D.H. said: "I heard the shuffling of feet. I heard what could be described as, I guess, the rustling. Not wrestling. Not the sound of wrestling, but the sound of movement because, again, the walls being so thin. [Stauff's] bed being right there, it drew my attention because it's literally as though you can hear the movement of the person on the other side of the wall when they're in a bed that is so close to the wall that you're on the other side of."
D.H. added: "I sensed motion. And again, because the beds are attached, literally, to the wall, you can feel - it's hard to describe. It's - you could feel the movement, sense the movement and you, at the same time, hear it." D.H. continued: "There['s] no question in my mind that [the perceived movements were in Stauff's] area. That was his bed." The prosecutor, noting D.H. had spent decades in prison, asked him whether he had ever seen or heard "someone being strangled with something around their neck." D.H. answered: "I've seen it, I've done it. I've seen it numerous times. I've either witnessed it from a distance, seen it happening in passing in a room, and I've heard it from another room" D.H. then explained, with regard to what he heard that night, from the cell shared by Stauff and Poole: "I heard what I knew, without question, I knew that someone over there was being strangled. Was being attacked." D.H. went on: "Sounded like a gurgling sound. A choking sound much like a sound someone would make if they were being choked."
The prosecutor asked D.H.: "And did you at that point - when you heard that, do you recall where the officer was?" D.H. responded: "The officer at that time was in between the third room and the fourth room while that was taking place. When she got to the fourth room to get the tray, she hesitated for a minute. As she hesitated and looked down in our area at the same time that she looked down towards the rooms she had already picked up the trays from, it was at that time that I was also hearing the choking noises. The noises that a person would make when they are being choked." D.H. added: "It was loud enough for me to hear it. To be honest with you, I don't believe it was loud enough for her to hear it. But something in the way she reacted caused me to think that she may have heard it." D.H. thought "she was going to come down and look and see what was going on over there," but she just "stacked the rest of the trays and began to push the cart towards the ... security desk hallway."
D.H. went on: "As the choking continued ... it seemed like [the officer] had a sense. She turned and she looked down, down the hall down towards my room - because I was standing at the window and I was, like, 'what do I do? What do I do? I know what I'm hearing. I know she's there. I know that she's turned and she's looked in our direction' ... but she didn't come back and something just told me not to say something. Then I wanted to say something. But even as all that was going on, I still heard the gurgling noises." D.H. noted the choking went on "for maybe four or five minutes." "It was a long, drawn-out noise of strangulation, the noise that one would make, a gurgling noise, and it went on for several minutes."
Although D.H. "clearly knew that something bad had happened," he did not try to flag the officer down, because inmates sometimes acted to draw attention to themselves or to manipulate the staff, and calling staff in those circumstances "could really, really reflect badly on you." D.H. explained: "So I guess the best word would be I was skittish about [calling for help]. I was unsure, uneasy ... I felt really bad inside and I just ... I felt like I wanted to scream it out ... I was hoping the officer would come back. I knew something really terrible was occurring." D.H. went on: "And I didn't see [Stauff] in a wheelchair, sick as he was, choking [Poole]; I ... could draw the only conclusion, that [Poole] had, in fact, assaulted him. And when it got quiet and the officer began to turn the corner, I said 'Oh, my God. What do I do? Do I yell? I know what occurred.'" D.H. concluded: "But there's no question in my mind. I know what I heard. I know what was done and there's - it's not just about variables, it's about fact. And the fact is I heard a man strangling another man to death."
Autopsy
Dr. Venu Gopal conducted the autopsy on Stauff's body, on April 12, 2014. Stauff was five feet eight inches tall and weighed 227 pounds.
Dr. Gopal examined the ligature material collected from the scene. It was comprised of two strips of cloth: one strip was two feet in length and the other two and a half feet—loosely twisted together. The ligature material also had what appeared to be "red blood stains." There was no obvious knot in the ligature.
Stauff had "petechial hemorrhages in the lower eyelids," "occasional petechial hemorrhage in the upper eyelids," and "subconjunctival hemorrhage in the left eye." "Petechial hemorrhages are like a pinpoint bleeding caused in the mucosal lining or in the inside of the eye because of the increased pressure in the small blood vessels in the eye. It happens whenever you apply a lot of pressure. So the blood vessels pop. So the small blood vessels, when they pop, they cause a bleeding in the ... 'conjunctiva' in the eyelid." In contrast, subconjunctival hemorrhage entails "much more diffused type of bleeding" and is more prominent than petechial hemorrhage.
Stauff's face was also "'congested'" or "bloodshot," which similarly "can happen when there's a lot of pressure around the neck." The congestion in Stauff's face and the petechial hemorrhage constituted evidence of "back pressure." Dr. Gopal explained the concept of "back pressure": "[B]lood usually flows towards the heart [in] the veins and the blood will come out through the arteries to go to the brain. So when there is obstruction in - a flat obstruction like this, the veins are more compressed. So the blood vessel, blood cannot go towards the heart and that is the back pressure created that can cause some congestion of the face, and also can cause petechial hemorrhage."
In addition, Stauff had ligature marks and hemorrhaging on his neck: he had "a ligature mark on the right side of the neck," along with hemorrhaging; "[a] horizontal ligature mark across the left side of the neck"; and, an oblique mark "going back to the left side back of the neck [with] different areas of hemorrhaging, at least three other areas of hemorrhaging within the ligature mark." Dr. Gopal explained in more detail: in addition to the ligature mark on the right side of the neck, "there [were] two areas of ligature [marks] almost meeting at one place on the left side of the neck." He reiterated: "[There was] a ligature mark going [horizontally] across the front of the neck, and also the ligature mark running oblique on the left side of the neck[,] [with the two marks] meeting at one point on the left side." The ligature marks were also of varying widths.
The prosecutor asked Dr. Gopal: "Why [are these ligature marks] significant to you?" Dr. Gopal answered: "What it means is it suggests that ligature material has gone more than once around the neck because our - the ligature - could be that it was reapplied; it was applied once and reapplied in a different way. So that that's why we have two marks instead of one."
Dr. Gopal further explained the significance of the petechial hemorrhage in relation to Stauff's neck injuries: "You see [petechial hemorrhage] - only way is where significant pressure is applied. We can't really quantitate that. And the bottom line is that significant pressure has been applied to cause subconjunctival hemorrhage, as well as the petechial hemorrhage in both the eyes. So that is - the pressure is significant enough to cause the back pressure resulting in the blood vessels to pop. You can't really quantitate that. But it is significant force. In a normal person, you don't see that. And also, the way it is applied in the sense this is - what we're talking about is ligature material being flat and then having more diffused type of force. For example, in case of, like, an extension cord or zip tie, the ligature material digs deep and causes the carotid arteries also to completely block. In such cases, you will not see any petechial hemorrhage at all." In this case, the injuries around Stauff's neck and the petechial hemorrhaging "corollate[d] very well."
Dr. Gopal examined the larynx and the thyroid cartilage. The "superior horn of the thyroid cartilage on the right side [was] fractured, broken." He noted: "[I]t's significant force to cause the injury, and it's more so on the right side than on the left side." Dr. Gopal found "hemorrhaging in the neck muscles" as well. He also examined Stauff's tongue; there were "four different areas of injury to the tongue." More specifically, contusions on the tongue indicated it was caught between clenched teeth. Dr. Gopal explained: "Again, definitely I would say significant force is necessary. And also, we cannot bite our tongue. For you to bite your tongue to four different places, it does require a lot of force. Our - ordinarily, if you bite your tongue yourself, you may damage your tongue and, you know, maybe you can get a contusion. You have four or five different areas of contusion; so I would say definitely a significant amount of force is necessary to get an injury like that." In addition, Stauff had a laceration to his right earlobe, "basically the tip of the earlobe [was] split." A laceration or tear "require[s] a significant amount of force."
Dr. Gopal opined: "[T]his is a case of ligature strangulation." He did not believe that Stauff's existing medical problems contributed to his death. He also concluded the significant constriction of the ligature around Stauff's neck was not caused by gravity and his body weight. Hanging victims have an "'inverted v-shaped mark'" that was not found on Stauff's neck. Regarding marks going in different directions on Stauff's neck, Dr. Gopal concluded: "The way it is, is either [the ligature] could have been applied and reapplied or also there may be some struggle going on because the ligature, whatever is around the neck, did not stay in one place and it has moved. So had to reapply for whatever reason. So that's why you do not have a uniform one type of ligature here." The prosecutor asked: "So those multiple marks suggest to you that there was a struggle?" Dr. Gopal responded: "It could be a struggle or could be apply and reapply."
Dr. Gopal also explained it would be impossible for Stauff to strangle himself with his hands because he would lose consciousness before achieving death, whereupon the hands would automatically relax. The prosecutor asked: "Is it possible to commit suicide using a ligature?" Dr. Gopal replied: "You can. I've seen ligature self-strangulation, but they're much more with, as I said before, electrical cords, zip ties and extension wires where there's much more localized force, and then there is a knot at the end of it and the knot has to stay in position." He added: "[E]ven if the hands come off, the knot has to stay to create the hypoxia to the brain." Dr. Gopal went on: "[Here the ligature] [h]as varying width. And also, there are too many injuries around the head and neck area to be a case of ligature self-strangulation." Dr. Gopal opined: "So in this case, with reasonable medical certainty, I would say that death happened [at] the hands of another person." He concluded: "My opinion as to the cause of death is it's a case of ligature strangulation - and I'm not calling it as a ligature self-strangulation - and the manner has been classified as homicide."
Poole's Testimony
Poole testified in his own defense. Poole was taken into custody on March 23, 2014, by the U.S. Marshals Service, for a violation of federal probation in that he failed a drug test. He was placed in the Fresno County Jail. He hit a wall because he was mad about getting arrested and injured his hand. He ended up in the hospital for two days and thereafter in a cell on the jail's infirmary floor, where he was provided with a removable cast. His hand was in bad shape - he could not even write a letter with it.
Initially, there were three people in the cell but eventually only Poole and Stauff remained. Stauff was in a wheelchair and had health issues but was generally independent in terms of his personal needs and requirements. He would spend time writing recipes, doing crossword puzzles, and talking on the phone; he had commissary items but "not an exorbitant amount."
Regarding his discussion with Stauff about coffee, Poole testified: "I like to drink coffee and I didn't have any. Yeah. I offered to trade some envelopes. That was about all I was getting at that time for coffee. He said no. And that was it." Regarding his interaction with Stauff over TV use, Poole said: "Pretty much they had a program going as far as the TV was concerned, and me being a new comer I wasn't going to try to demand anything about that television, but I would kid him saying, you know, I did mention a couple of times why do we got to watch what you want to watch, because I was just kind of needling him in a joking manner." Poole added: "[W]e watched what [Stauff] had established as a program [or routine]." In these sorts of things, seniority played a role; inmates who had been there longer had more of a say.
On April 10, 2014, after dinner, Poole and Stauff lay down in their respective bunks. Poole fell asleep; at some point he was woken up by a sound. He looked over to Stauff's bunk and saw Stauff lying on the ground. Poole testified: "Well, I went over and I saw that something was wrapped around his neck. The guy was heavy, but I ended up turning him over trying to get this thing off. At first I tried to get the thing off his neck. I couldn't figure it out. It was dark. I couldn't see if it was tied in a knot. They said it was twisted. I tried pulling on it, getting my fingers in there and it wouldn't give." Poole continued: "I ended up turning him over because I thought I saw him gasp and I started pushing on his chest. I had my cast like this laying like this and I pushed with the other hand like this." Pool went on: "There was [no response]. And I think I was just, a few seconds I did that, and then I thought, man, I got to get some help, so I went and pushed the button on the box, the intercom." However, no one responded to the intercom call.
Poole testified he went back to trying to resuscitate Stauff; he also kept running to the door to look out of the door window to see if a correctional officer was coming. "It was an ordeal." It seemed like a long time passed, "like all night." Poole was getting frantic because Stauff needed help. Eventually, Poole covered Stauff with a blanket. Finally, Officer Figueroa came by. Poole said: "I hit the window a couple times, got his attention and told him to come over here." Poole told Figueroa: "Mr. Stauff needs a nurse, man, he needs help." Poole did not inform the officers and medical staff that something was wound tightly around Stauff's neck; they wanted him out of the way. Stauff was smelling but Poole later found out he had defecated.
Regarding the listing of pros and cons of homicide found in the cell where Poole was subsequently housed, Poole said: "Well, every day I sat there waiting for them to take me to court because I felt [as] if they were going to charge me with murder and day-in and day-out, so finally I started writing this trying to figure out where everything stood." Poole also testified he never said anything to the effect that he took care of it or he did it.
DISCUSSION
Instructional Error
The trial court instructed the jury on first degree murder pursuant to CALCRIM No. 521, the standard CALCRIM instruction, as follows:
"The defendant is guilty of first degree murder if the People have proved that he acted willfully, deliberately, and with premeditation. The defendant acted willfully if he intended to kill. The defendant acted deliberately if he carefully weighed the considerations for and against his choice and, knowing the consequences, decided to kill. The defendant acted with premeditation if he decided to kill before completing the act that caused death.
"The length of time the person spends considering whether to kill does not alone determine whether the killing is deliberate and premeditated. The amount of time required for deliberation and premeditation may vary from person to person and according to the circumstances. A decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated. On the other hand, a cold, calculated decision to kill can be reached quickly. The test is the extent of the reflection, not the length of time." (Bold added.)
Poole challenges the definition of premeditation encompassed in CALCRIM No. 521, to the extent it specifies a decision to kill made before completing the act that caused death is premeditated. Poole argues, while "[a] verdict of deliberate and premeditated first-degree murder requires more than a showing of intent to kill," CALCRIM No. 521's definition of premeditation "misstates the law by essentially conflating premeditation with a deliberated intent to kill." Poole contrasts the definition of premeditation encompassed in CALCRIM No. 521 with the definition of premeditation set forth in CALJIC No. 8.20, the CALJIC instruction on first degree murder (Poole suggests CALJIC No. 8.20 is a correct statement of the law while CALCRIM No. 521 is not). CALJIC No. 8.20 provides in pertinent part: "The word 'premeditated' relates to when a person thinks and means considered beforehand. One premeditates by deliberating before taking action." (Italics added.) Poole contends premeditation requires a preconceived decision to kill, i.e., a decision to kill that is made before commission of the lethal act, rather than a decision to kill made in the course of committing a lethal act. He argues "[p]remeditation formed after lethal force is applied with intent to kill," in a situation "where there is but a single act which caused death, obliterates the distinction between intent to kill, and a premeditated intent to kill." Poole further argues the erroneous instruction on premeditation violated his constitutional rights to due process under the Fourteenth Amendment and to trial by jury under the Sixth Amendment. We reject these contentions.
Preliminarily, we note that since Poole contends CALCRIM No. 521 is not a correct statement of the law, any failure to object in the trial court did not forfeit the contention. (See People v. Smithey (1999) 20 Cal.4th 936, 976, fn. 7, citing § 1259 [the defendant's claim is that the instruction was incorrect in law, and that it violated his right to due process of law; the claim is therefore not of the type that must be preserved by objection].)
"We determine independently whether a jury instruction correctly states the law. [Citation.] Our task is to determine whether the trial court '"fully and fairly instructed on the applicable law."' [Citation.] We consider the instructions as a whole as well as the entire record of trial, including the arguments of counsel. [Citation.] If reasonably possible, instructions are interpreted to support the judgment rather than defeat it." (People v. McPheeters (2013) 218 Cal.App.4th 124, 132.)
CALCRIM No. 521 adequately apprised the jury of the relevant legal principles and is a correct statement of the law. Our high court has explained that, "'[i]n the context of first degree murder, "'premeditated' means 'considered beforehand.'"'" (People v. Houston (2012) 54 Cal.4th 1186, 1216; People v. Jennings (2010) 50 Cal.4th 616, 645 [premeditation requires consideration beforehand, deliberation means formed or arrived at as a result of careful thought and weighing of considerations for and against the act or course of conduct at issue]; People v. Halvorsen (2007) 42 Cal.4th 379, 419 [same].) The language in CALCRIM No. 521 that Poole challenges—i.e., "[t]he defendant acted with premeditation if he decided to kill before completing the act that caused death"—comports with the definition of premeditation set forth in the cases cited above.
In this context, we note that, in addition to the challenged language, CALCRIM No. 521 also clarified that "[a] decision to kill made rashly, impulsively, or without careful consideration is not deliberate and premeditated" and that "[t]he test is the extent of the reflection, not the length of time." (Italics added.) CALCRIM No. 521, as given here, therefore did not collapse the distinction between premeditation and the mere formation of a specific intent to kill. In other words, CALCRIM No. 521 did not excise the requirement of reflection that is embedded in the concept of premeditation. (See People v. Arias (2008) 45 Cal.4th 169, 181, citing People v. Thomas (1945) 25 Cal.2d 880, 889-890 [by conjoining the words willful, deliberate, and premeditated in definition of premeditated murder in § 189, the Legislature signaled an intention to require, as an element of this offense, substantially more reflection than may be involved in the mere formation of specific intent to kill].)
Nor are we persuaded by Poole's attempt to draw a distinction between CALJIC No. 8.20 and CALCRIM No. 521. CALJIC No. 8.20 states that a defendant "premeditates by deliberating before taking action," defining the action at issue as a "killing." CALCRIM No. 521, as given to the jury here, similarly conveyed the idea that a defendant premeditates by reflecting on and considering the consequences of his lethal act before accomplishing the killing.
Specifically, CALJIC No. 8.20 clarifies: "If you find that the killing was preceded and accompanied by a clear, deliberate intent on the part of the defendant to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is murder of the first degree." (Italics added.)
Finally, a look at the instant record demonstrates that CALCRIM No. 521 correctly instructed the jury that the defendant premeditated if he made the decision to kill with due consideration before completion of the drawn-out act or series of acts that caused Stauff's death. Here, the evidence showed (1) the strangulation took an extended time to accomplish, and (2) involved either a struggle or multiple applications of the ligature. D.H. testified: "It was a long, drawn-out noise of strangulation, the noise that one would make, a gurgling noise, and it went on for several minutes." D.H. further testified: "As the choking continued ... it seemed like [Officer Armenta] had a sense. She turned and she looked down, down the hall down towards my room - because I was standing at the window and I was, like, 'what do I do? What do I do? I know what I'm hearing. I know she's there. I know that she's turned and she's looked in our direction' ... but she didn't come back and something just told me not to say something. Then I wanted to say something. But even as all that was going on, I still heard the gurgling noises." (Italics added.) As mentioned, the evidence also showed the strangulation entailed a struggle or required repeated applications of the ligature. For example, Dr. Gopal testified: "The way it is, is either [the ligature] could have been applied and reapplied or also there may be some struggle going on because the ligature, whatever is around the neck, did not stay in one place and it has moved. So had to reapply for whatever reason. So that's why you do not have a uniform one type of ligature here."
The extended time and course of conduct involved in the strangulation provided the requisite opportunity for the defendant to reflect on and consider what he was doing, and even to abandon his course of conduct before death was accomplished. (See, e.g., People v. Hovarter (2008) 44 Cal.4th 983, 1020 ["'[l]igature strangulation is in its nature a deliberate act'" as the "prolonged manner of taking a person's life, which requires an offender to apply constant force to the neck of the victim, affords ample time for the offender to consider the nature of his deadly act"].) Under these circumstances, we detect no error in the court's use of CALCRIM No. 521.
DISPOSITION
The judgment is affirmed.
SMITH, J. WE CONCUR: FRANSON, Acting P.J. SNAUFFER, J.