Opinion
D076194
03-10-2020
THE PEOPLE, Plaintiff and Respondent, v. FRANK JOSEPH POPOVICH, JR., Defendant and Appellant.
Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 16CR011357) APPEAL from a judgment of the Superior Court of San Bernardino County, J. David Mazurek, Judge. Affirmed with directions. Joanna McKim, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Daniel J. Hilton, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
A jury convicted Frank Joseph Popovich, Jr., of one count of first degree murder (Pen. Code, § 187, subd. (a)) and found true allegations Popovich personally discharged a firearm, which caused great bodily injury and death (§ 12022.53, subds. (b)-(d)). The court sentenced Popovich to a total indeterminate term of 50 years to life in prison based on a term of 25 years to life for first degree murder plus a consecutive term of 25 years to life for the firearm enhancement pursuant to section 12022.53, subdivision (d). The court stayed terms for the remaining firearm enhancements.
Further statutory references are to the Penal Code unless otherwise specified.
On appeal, Popovich contends: (1) the court erred by referring the jury to the pattern jury instruction when they asked for a "further explanation of [the] definition of premeditation as it applies to first degree murder"; (2) the prosecutor committed misconduct in closing statements by stating premeditation could occur instantly, such as in the time it takes to decide to drive through a yellow light at an intersection; and (3) there was insufficient evidence to support the jury's finding that Popovich killed the victim with premeditation and deliberation. We disagree with each of these contentions and, therefore, affirm the judgment. However, we remand the matter with directions for the clerk of the court to correct a clerical error and amend the abstract of judgment to accurately reflect the court's pronouncement of judgment.
II
BACKGROUND
A
Around 1:00 a.m. on April 12, 2016, Popovich entered a small town nightclub. Although Popovich asked for a drink, the bartender did not serve him alcohol because he appeared intoxicated.
The victim, who had been at the nightclub most of the night, got up and went out the back exit. After greeting and hugging the owner of the nightclub, Popovich and the owner exited the club into the parking lot behind the nightclub. The victim was outside and commented about Popovich's jacket. The victim was a friend of the nightclub owner and occasionally did odd jobs at the nightclub. The victim came over to speak to Popovich. The club owner continued walking to another bar a couple of blocks away.
Shortly after leaving the club, the owner heard an explosion. The owner called the bartender and said he heard a loud bang or gunshot explosion near the nightclub. The bartender and another patron went out into the parking lot and found the victim on the ground. The victim was on his back with blood coming out of his mouth. They initially thought he had been punched. When the patron rolled the victim onto his right side they saw a large pool of blood underneath the victim's head. The victim was not responsive. The bartender told the owner he needed to hang up and call 911 because the victim was "leaking."
The bartender called 911 and flagged down a law enforcement officer who was passing the rear entrance of the bar. The officer observed the victim lying on his side with a lot of blood pooled around his head. Thick blood was coming out of his mouth.
As the bartender and the patron were tending to the victim, they saw Popovich standing near the nightclub's dumpster. He was peeking his head around the corner and appeared to be hiding. The bartender and the patron yelled to Popovich and told the officer Popovich was the last person seen with the victim.
The victim died from a single gunshot wound to the chest. The bullet struck both the aorta and the left lung. These injuries likely caused blood to come through the victim's mouth within seconds. He died within a matter of minutes. The victim also had a fresh bruise on his forehead.
B
When an officer interviewed Popovich in the nightclub, he appeared nervous. He had some shortness of breath and his mouth became very dry as he was speaking.
During a search of Popovich's nearby retail business, detectives located a pistol hidden inside a vent between a bathroom and a makeshift living area. The pistol, a .22-caliber revolver, was loaded. One cartridge had been fired. The pistol appeared consistent with the murder weapon. The ammunition was consistent with the bullet recovered from the victim's body. Popovich did not have a permit to carry a concealed weapon.
C
Surveillance video collected from cameras in the surrounding area showed Popovich enter the nightclub about 1:03 a.m. After talking briefly with the bartender and some patrons for a couple of minutes, Popovich greeted and hugged the nightclub owner before going out the back door at 1:06 a.m.
The victim, who was smoking in the parking lot, turned and approached Popovich as he exited the building. The bar owner walked out the back door behind Popovich and crossed the parking lot.
The victim and Popovich were not visible from the camera angle for several minutes. The victim walked around in the parking lot and appeared to be talking in an animated or agitated manner. Popovich then lunged toward the victim, shoving and trying to strike him. Popovich followed the victim jabbing his finger at the victim's face several times as the victim backed away. When Popovich turned and walked away, the victim walked after him still talking with arms and palms outspread. Popovich walked out of the scene again as the victim followed. At approximately 1:10 a.m. a muzzle flash appeared on the video and the victim fell backward onto the ground.
Popovich put the gun behind his back under his jacket and walked around the victim, smoking a cigarette. Popovich leaned down and appeared to strike the victim. He then circled the victim again before standing next to him and smoking. He bent down again near the victim before walking and then jogging out of the parking lot. Approximately a minute passed between the shooting and when Popovich left the parking lot. Surveillance footage showed Popovich jogging and walking around the surrounding buildings and through an alley with the gun. He appeared to head toward his car before turning around and jogging toward his shop. Several minutes later he walked back to the parking lot. The officer contacted Popovich at the scene approximately eight minutes after the shooting.
D
The defense presented evidence that Popovich owned a family retail shop near the nightclub. The shop sold native American products and reproductions of endangered species claws. It also had a magic shop in the back of the store. Popovich's son and wife worked in the shop periodically. Popovich lived at the shop after he separated from his wife and filed for divorce in February 2016.
The victim did artwork and woodworking for the shop occasionally. He was friends with Popovich, although they argued frequently. The victim was also friends with Popovich's wife. The victim had coffee with Popovich's wife after Popovich moved out of the family home. The victim asked about her relationship with Popovich. She believed the victim was trying to act as an intermediary to get her and Popovich to work things out to get back together.
Popovich's son located blank gun cartridges in a drawer in the shop. He had seen a gun in one of the drawers previously, but did not know if it was loaded. He did not touch the gun. The son learned blanks could be relevant to his father's case based on letters Popovich wrote to his ex-wife. After he found the blanks, a defense investigator came to the shop to take photos of the blanks.
Another friend who worked for Popovich was aware Popovich kept a gun filled with blanks. Popovich discussed using guns in illusions. The friend speculated the shooting was an illusion gone bad. He said the victim could have been drinking and loaded Popovich's gun with live bullets instead of blanks.
Popovich testified on his own behalf. He considers himself a "magicalist" because he is an actor who plays the part of a magician and does magic. Popovich said he had a good relationship with the victim, who came in to the store frequently. Popovich sold some of the victim's artwork. Popovich said he did not mind when the victim occasionally took items from the store. Popovich denied any physical altercations with the victim. He said the victim got into physical altercations with another artist who did work for the store.
Popovich kept several firearms in the store, including a .22-caliber revolver that he kept in a drawer. He said several people knew he had the revolver. He showed them it was loaded with blanks because he used it as a magic prop when he was working on a routine. He also said he had it as a security deterrent. The revolver did not have a safety. Popovich said he loaded the revolver with live rounds and took it to a shooting range one time when he first got the gun to see what it felt like.
Popovich claimed he previously fired the revolver with blanks at the victim and then at his own head when they were playing around. He said he fired the gun with blanks at other individuals as well. He kept the blanks in the same desk as the revolver.
Popovich saw the victim several times on April 11, 2016. The victim came to the store in the afternoon and said he was going to do some work at the nightclub to earn money for new shoes. The victim came by again around 7:00 p.m. to show Popovich his new shoes. After closing the store, Popovich said he worked on art for a series of Native American joke books. The victim came to the store again around 11:30 p.m. Popovich showed the victim what he was working on and said he was going to take some new pictures for the books. The victim said he was going to the nightclub to meet someone. Popovich took pictures of himself in different clothing for the cover of a book.
Popovich finished around 1:00 a.m. and prepared to go to the nightclub. He said he dressed up to show off how to wear a Native American belt he recently fixed. He also carried some magic props. Since he was working on a book entitled "The American Indian Hit List" he said he thought it would be "interesting" to carry a gun as part of his act. He decided to take the .22-caliber revolver because it fit in his waistband.
Popovich denied he previously took the gun out in public other than to the shooting range. He said he had taken other weapons to the nightclub, such as swords and a large pocket knife, because he thought they were funny.
Popovich liked magic and brought card tricks or items that popped to the nightclub. The bartender told him he could not bring things that exploded because it was illegal. The bartender testified he would not have allowed Popovich to bring a sword or other weapon into the nightclub.
Popovich denied he had been drinking. Popovich said he was in excellent spirits because he recently saw his girlfriend and he had eight books in the works.
Popovich said he went to the nightclub to find a person he wanted to talk to about business. After hugging the owner of the nightclub, he went out the back door to purportedly find the person. He instead saw the victim in the parking lot.
The victim complimented Popovich's jacket, they talked about what he was wearing, and Popovich asked about the other friend. He said the victim asked for a cigarette.
Popovich said he lit his own cigarette and then joked around with the victim by pointing the lighter at the victim and clicking it back and forth. He said the victim slapped the lighter out of his hand twice and started laughing. Popovich said he tried to punch the victim in the shoulder in a friendly way, but the victim backed away. Popovich claimed he never actually touched the victim.
The victim asked if Popovich was concerned about the victim talking to Popovich's wife. Popovich said they were all friends and the victim could talk to her since she was having problems with the divorce. Popovich said he was happy and had no problem with the victim's relationship with the wife. He said the victim was trying to be an intermediary.
Popovich told the victim, "Hey, just remember. It's bros before hoes." He said the victim laughed. Popovich explained he loved his wife, but could not be with her. Popovich claimed the victim challenged him repeatedly to say he loved his wife. Popovich denied he pointed his finger aggressively at the victim, saying he only gestured with his hand. He claimed they were "horsing around."
Popovich said he turned around, picked up his lighter, put it in his pocket, and then pulled out the gun "for a little bit of drama." He said he cocked the hammer for "dramatic pause," but the gun went off. He claimed the victim was smiling and they both were having a good time. He said he did not intend to shoot because, even though he said he believed the gun was loaded with blanks, he did not want law enforcement to respond to a gunshot at 1:00 a.m.
Popovich said the victim dropped to the ground like he had done before when they were playing around in the store. Popovich thought the victim's performance was "pretty good" and told the victim to get up, but the victim did not move. Popovich said he walked up to the victim and said, "Okay. Come on." When the victim still did not move, Popovich walked around toward the victim's head and said, "Gosh darn it, [victim]. Get up." Popovich denied striking the victim, but said he touched the victim when he told him to get up. Popovich saw a trickle of blood coming out of the victim's nose, but no other trauma. Popovich claimed the victim looked up at him and smiled. Popovich said he told the victim he would be right back.
Popovich said he thought law enforcement would respond because he "accidentally fired off a revolver." Popovich headed toward his car to put the gun away, but decided it should not be there if law enforcement asked to search his vehicle. He instead ran to his shop and put the gun into a vent in the back room.
Popovich said he was stopped more than 20 times in a year by law enforcement officers and he believed they were harassing him.
Popovich retraced his steps to the parking lot behind the nightclub, stopping once because he was winded and to smoke a cigarette. He denied peeking around the dumpster. He claimed he did not know why law enforcement officers were present and expected to see the victim in the nightclub. The officer asked him to go inside. Popovich saw a body, but did not think it was the victim because it was positioned differently. He said he learned the body was the victim from someone inside the nightclub.
Popovich tried to distance himself from the incident and told investigators he briefly spoke with the victim and heard a loud sound after Popovich left. After he was arrested, he told investigators where to find the gun and mentioned blanks. Popovich then wrote a letter claiming the first responding law enforcement officer was involved in the victim's death and manipulated the evidence.
Popovich admitted he knew his wife and the victim were friends and met for coffee. He and the victim talked about the wife behind the nightclub. The victim wore Popovich's wife's ring, but Popovich denied it bothered him. Popovich also denied it bothered him when the victim took things from the shop.
E
In rebuttal, the prosecutor presented audio recordings of Popovich's interviews with investigators. Popovich initially denied any involvement with the victim's death. He said he talked with the victim, but left to get money for a drink. He claimed he heard yelling and the victim was on the ground when he returned. Popovich said he had "no idea" who was responsible. He denied having a weapon. When detectives talked about the victim, Popovich smiled in a way that seemed inappropriate.
After learning there was video surveillance evidence, being placed under arrest for murder, and hearing a detective's suggestion it could have been an accident, Popovich eventually told detectives he shot the victim with a revolver he believed contained blanks. He said he thought the victim was playing when he dropped to the ground. He realized the victim was not playing when he saw blood coming out of his mouth, but Popovich did not call for help. He told the detectives where to find the gun and said it should be loaded with blanks.
Popovich admitted he pulled out the revolver, pointed it "dead center" at the victim's chest, and pulled the trigger after the victim slapped Popovich's lighter from his hand a couple of times. Popovich said they were playing around and there was no anger or aggression. He said he did not mean to shoot his friend. He said he went back to the scene to see if his friend was okay. He admitted he did not call for help because he thought the victim was dead.
Popovich admitted having an altercation with the victim a few weeks earlier in which he grabbed the victim by the shoulder and neck. Popovich claimed he had been drugged at the nightclub and could not recall the incident. He also admitted being angry with the victim for taking things from the shop, but said they resolved the issue.
A detective who interviewed Popovich testified Popovich seemed to second-guess what he told detectives after he learned there were surveillance videos. He paused and used filler words, such as "you know" and "um." He tried to cry when he admitted to killing the victim, but he did not cry when he learned the victim was dead.
II
DISCUSSION
A
Jury Question
During deliberations, the jury submitted a note requesting, "further explanation of [the] definition of premeditation as it applies to first degree murder." The court read the note and advised counsel it intended to re-refer the jury to CALCRIM No. 521, which is the pattern jury instruction for first degree murder. Both counsel agreed. The court responded to the note saying, "Please refer to [CALCRIM No.] 521." Shortly thereafter, the jury returned its verdict finding Popovich guilty of first degree murder.
The court's instruction with CALCRIM No. 521 read 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.
"The requirements for second degree murder based on express or implied malice are explained in CALCRIM No. 520, First or Second Degree Murder with Malice Aforethought.
"The People have the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime. If the People have not met this burden, you must find the defendant not guilty of first degree murder and the murder is second degree murder."
Popovich contends the court erred in failing to provide further instruction in response to the jury question and further contends we should consider this issue even though his counsel agreed with the court's response. He also contends his counsel was ineffective for failing to object to the court's response. We disagree.
First, "counsel's affirmative agreement with the court's reply to a note from the jury forfeits a claim of error." (People v. Salazar (2016) 63 Cal.4th 214, 248.) Additionally, Popovich does not contend the court's instruction with CALCRIM No. 521 provided an incorrect statement of the law. "When the trial court responds to a question from a deliberating jury with a generally correct and pertinent statement of the law, a party who believes the court's response should be modified or clarified must make a contemporaneous request to that effect; failure to object to the trial court's wording or to request clarification results in forfeiture of the claim on appeal." (People v. Dykes (2009) 46 Cal.4th 731, 802.) Because Popovich's counsel did not object to the court's response or request further clarification, the issue is forfeited on appeal.
Second, even if we were to consider the issue, it is without merit. A trial court is obligated under section 1138 to provide the jury with information requested on a point of law. But where the original instructions are full and complete, the court may properly exercise its discretion to answer a question by directing the jury to reread applicable instructions. (People v. Gonzalez (1990) 51 Cal.3d 1179, 1212-1213, superseded by statute on other grounds as stated in In re Steele (2004) 32 Cal.4th 682, 691; People v. Lua (2017) 10 Cal.App.5th 1004, 1016-1017.) Such is the case here. CALCRIM No. 521 stated a defendant acted with premeditation "if he decided to kill before completing the act that caused death." The instruction went on to explain, "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." This instruction met the court's obligation under section 1138. The jury did not request further clarification of any portion of the instruction. Rather, the jury informed the court it had reached a verdict within an hour of receiving the court's response.
Third, and finally, we cannot conclude defense counsel was ineffective in agreeing with the court's proposed response. To establish ineffective assistance of counsel, a defendant has the burden to show counsel's performance fell below the standard of reasonableness under prevailing professional norms and the attorney's deficient performance was prejudicial. In other words, the defendant must establish he would have obtained a more favorable result absent the alleged error. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694; People v. Ledesma (1987) 43 Cal.3d 171, 215-217.) In our review of ineffective assistance of counsel claims, our scrutiny of counsel's performance " 'must be highly deferential' " and a defendant "must overcome the 'presumption that, under the circumstances, the challenged action "might be considered sound trial strategy." ' " (Bell v. Cone (2002) 535 U.S. 685, 698.)
Popovich has not met his burden to establish ineffective assistance. The defense theory was that Popovich believed the gun was loaded with blanks so he did not have an intent to kill. Popovich also stated he carried the gun under his jacket in his waistband to the nightclub only as a "prop" or as an "interesting" part of his outfit. If the jury accepted Popovich's testimony that the gun was merely a prop and he believed it was filled with blanks, the jury could not have found he "decided to kill before completing the act that caused death," as defined by CALCRIM No. 521 and would have acquitted him of the first degree murder charge. Defense counsel apparently made a tactical decision that the court's reference to the pattern jury instruction was beneficial to the defense case. " '[I]f the record on appeal fails to show why counsel acted or failed to act in the instance asserted to be ineffective, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim must be rejected on appeal.' " (People v. Huggins (2006) 38 Cal.4th 175, 206.) We, therefore, reject the claim of ineffective assistance.
B
Prosecutor Statement
Popovich contends the prosecutor in closing statements misstated the law regarding premeditation and deliberation, implicating his constitutional right to a fair trial. We disagree.
" ' "A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." ' " (People v. Jackson (2016) 1 Cal.5th 269, 349.) " ' "To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner." ' " (People v. Woodruff (2018) 5 Cal.5th 697, 765.) "This is not a low standard to meet, since ' "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. Spencer (2018) 5 Cal.5th 642, 684 (Spencer).)
It is improper for a prosecutor to misstate the law. (People v. Marshall (1996) 13 Cal.4th 799, 831.) However, a prosecutor may argue the case with rigor (Spencer, supra, 5 Cal.5th at p. 688) and " ' "may state matters not in evidence, but which are common knowledge or are illustrations drawn from common experience, history or literature." ' " (People v. Ward (2005) 36 Cal.4th 186, 215; see also People v. Shazier (2014) 60 Cal.4th 109, 127 [prosecutors have wide latitude to draw inferences from trial evidence and it is for the jury to decide if the inferences are reasonable].)
Here, the prosecutor discussed the requirements for first degree murder, including premeditation and deliberation. She stated, "Let me tell you, ladies and gentlemen, premeditation, deliberation—that's just a $10 word for did he think about it before he did it? That's it. That's what premeditation is and deliberation. That's the difference between first degree murder and second degree. Did he think about it before he did it?" The prosecutor then gave an example, "You're driving down the intersection. You're faced with a yellow light. You decide to run the yellow. You can do it instantly. That's premeditation and deliberation. That's all you need." The court overruled defense counsel's objection to the "characterization of deliberation."
The prosecutor did not misstate the law. The California Supreme Court has repeatedly stated premeditation and deliberation can be formed quickly. " 'A murder that is premediated and deliberate is murder of the first degree.' [Citation.] ' "In this context, 'premeditated' means 'considered beforehand,' and 'deliberate' means 'formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action.' " ' [Citation.] ' "An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse." ' [Citations.] '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 ....' " (People v. Potts (2019) 6 Cal.5th 1012, 1027 (Potts); People v. Mendoza (2011) 52 Cal.4th 1056, 1069 [" ' " 'Premeditation and deliberation can occur in a brief interval.' " ' "]; see also People v. Lynn (1984) 159 Cal.App.3d 715, 726 ["premeditation may be instantaneous"].) The Supreme Court rejected a challenge to a prosecutor's similar reference to a decision to go through a yellow light in the context of a discussion of premeditation and deliberation saying it was an "an example of a 'quick judgment' that is nonetheless 'cold' and 'calculated.' " (People v. Avila (2009) 46 Cal.4th 680, 715.) Similarly, the prosecutor's statement here was an illustration of how a judgment can be made quickly.
Additionally, the prosecutor did not actually argue Popovich's premeditation and deliberation occurred instantaneously. After discussing why the defense version of the events was not credible, the prosecutor pointed to the numerous opportunities Popovich had to think about what he was doing over the time leading up to the shooting. The prosecutor argued Popovich loaded the gun and brought it to the nightclub. He went out the back door where he argued and tussled with the victim. After walking away from the victim, he turned, removed the gun from his waistband, cocked the hammer, pointed the revolver dead center at the victim's chest, and pulled the trigger. The prosecutor argued Popovich thought about what he was doing with each of these actions. We conclude the prosecutor did not misstate the law and, even if the statement could be construed as error, there is no reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.
C
Substantial Evidence Supports the Conviction of First Degree Murder
Popovich contends we should reverse his conviction for first degree murder because there was insufficient evidence of premeditation and deliberation. Again, we disagree.
"Upon a challenge to the sufficiency of evidence for a jury finding, we ' " ' "review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence—that is, evidence which is reasonable, credible, and of solid value—such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." ' " ' [Citation.] 'The standard of review is the same in cases in which the prosecution relies mainly on circumstantial evidence.' " (People v. Rivera (2019) 7 Cal.5th 306, 323-324.) We presume the existence of every fact the trier of fact could reasonably deduce from the evidence in support of the judgment. (People v. Clark (2011) 52 Cal.4th 856, 943.) We may not reverse a conviction for insufficient evidence unless " 'it appears "that upon no hypothesis whatever is there sufficient substantial evidence to support" ' the jury's verdict." (People v. Zamudio (2008) 43 Cal.4th 327, 357.)
The reflection necessary for premeditation and deliberation "may be revealed by planning activity, motive, and the manner of the killings, among other things." (Potts, supra, 6 Cal.5th at p. 1027.) " '[T]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation.' " (People v. Jurado (2006) 38 Cal.4th 72, 118-119.)
Here, the evidence showed planning. Popovich knew the victim was going to be at the nightclub. He carried a loaded gun to the nightclub despite the fact he did not have a permit to carry a concealed weapon and he had never carried the gun in public before other than one time to a shooting range. Although he testified he thought it would be interesting to carry the gun with his outfit, he wore it tucked into the back of his pants and concealed under his jacket. (Potts, supra, 6 Cal.5th at pp. 1027-1028.)
There was also evidence of motive. Beyond evidence that the victim and Popovich argued often and that the victim took things without permission from Popovich's shop, the victim had been spending time with Popovich's wife and was apparently concerned about Popovich's relationship with his wife. Popovich admitted he and the victim talked about Popovich's relationship with his wife before the shooting and Popovich told the victim to remember, "It's bros before hoes." Just before Popovich pulled out the gun, the victim said he hoped Popovich did not have a problem with the victim's relationship with the wife. Although Popovich characterized the conversation as lighthearted joking around, the jury could well have interpreted the video evidence of the conversation as much more serious. After what appears to be a tense conversation, Popovich ran after the victim and attempted to punch him. Popovich then pursued the victim while jabbing his finger aggressively toward the victim's face as the victim backed away. When Popovich walked away, the victim followed Popovich using hand gestures and body language suggesting he was pleading with Popovich moments before Popovich pulled out the gun and shot the victim.
Finally, the manner of the killing supports a finding of premeditation and deliberation. Popovich removed the gun from his waistband and cocked the hammer for dramatic effect. Popovich, who claimed to be an experienced marksman who had been shooting guns since he was a Boy Scout and can hit anything on a target, aimed "dead center" at the victim's chest and fired. After the shooting, Popovich did not appear surprised or upset that the victim had crumbled to the ground. Popovich walked calmly toward the victim as he replaced the gun in the waistband under his jacket and walked around the victim smoking a cigarette. Popovich leaned down and appeared to strike the victim in the head and then circled around the victim and stood over him for nearly a minute smoking a cigarette before leaving the parking area. (Potts, supra, 6 Cal.5th at p. 1028, citing People v. Perez (1992) 2 Cal.4th 1117, 1128 ["the conduct of defendant after the stabbing ... would appear to be inconsistent with a state of mind that would have produced a rash, impulsive killing"].)
Considering the record as a whole, we conclude there was substantial evidence to support the jury's conviction on the charge of first degree premeditated murder.
D
Abstract of Judgment
The court sentenced Popovich to a term of 25 years to life for murder in the first degree (count 1) plus a consecutive term of 25 years to life for the firearm enhancement for a total commitment in state prison of 50 years to life. The court imposed, but stayed enhancements pursuant to section 12022.53, subdivisions (b) and (c).
The abstract of judgment does not accurately reflect the court's pronouncement of judgment imposing a term of 25 years to life for count 1. Section 1 on the first page of the abstract indicates Popovich was convicted by a jury of murder in count 1. Section 2 indicates a term of 25 years was imposed for the firearm enhancement under section 12022.53, subdivision (d). The box for line 5 is checked indicating he was sentenced to life with the possibility of parole. However, no box is checked in line 6, which includes a box for a sentence of 25 years to life (box 6.b.) for count 1. On the second page of the abstract, line 12 for other orders states Popovich was sentenced "for a total indeterminate term of: 50 years to Life."
We may on our own motion direct the clerk of the court to correct clerical errors in an abstract of judgment that does not accurately reflect the oral judgment of the sentencing court. (People v. Mitchell (2001) 26 Cal.4th 181, 185.) Accordingly, we direct the clerk on remand to amend the abstract of judgment to properly indicate the court's pronouncement of judgment.
IV
DISPOSITION
We remand the matter with directions for the clerk of the court to amend the abstract of judgment to reflect the court's sentence of 25 years to life for count 1 along with the firearm enhancement of 25 years to life for a total indeterminate term of 50 years to life. The clerk of the court shall send a certified copy of the amended abstract of judgment to the Department of Corrections and Rehabilitation. In all other respects, the judgment is affirmed.
McCONNELL, P. J. WE CONCUR:
HUFFMAN, J.
AARON, J.