Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County, No. BA287091, William R. Pounders, Judge. Affirmed.
Dan Mrotek, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
SUZUKAWA, J.
Defendant Ricardo Rivera appeals from the judgment entered following his conviction of first degree murder, two counts of attempted willful, deliberate, and premeditated murder, and possession of a firearm by an ex-felon. (Pen. Code, §§ 187, subd. (a), 664/187, subd. (a), 12021, subd. (a).) The jury also found that he and a principal personally used and intentionally discharged a firearm causing great bodily injury or death to the victims. (§§ 12022.53, subds. (b), (c), (d), and (e)(1).) After the verdict, defendant admitted that he had suffered two prior serious felony convictions and had served a prior prison term. (§§ 1170.12, subds. (a)-(d), 667, subds. (b)-(i), 667, subd. (a), 667.5, subd. (b).) The court sentenced defendant to 100 years to life plus a consecutive six-year term for the murder and 46 years to life plus a consecutive one-year term for each of the attempted murders and ordered that the terms run consecutively. The sentence for the firearm possession was stayed pursuant to section 654.
All other undesignated statutory references are to the Penal Code.
Defendant contends: (1) the trial court erred by denying his motion to suppress a statement taken in violation of his Miranda rights; (2) the trial court erred by overruling his objection to the prosecutor’s power point presentation during closing argument; and (3) one of his prior serious felony convictions should be stricken, as it was based on a juvenile adjudication. We affirm the judgment.
Miranda v. Arizona (1966) 384 U.S. 436.
FACTUAL AND PROCEDURAL BACKGROUND
On September 27, 2003, Kevin Harris met with a group of friends that included Johnny and Harris’s girlfriend, Anna Vasquez, to decide what to do that night. Harris, Johnny, and Vasquez were 17 years old. The friends met at a liquor store, arriving in three or four cars. Once there, they decided to attend a party in South Los Angeles. The cars caravanned to the location.
Later testimony revealed that Harris was referring to the named victim of the attempted murder in count 3, Juan Anda.
The group arrived at the party, which was being held in the backyard of the location. They paid a cover charge to someone who was collecting money at the gate to the yard and entered. Once inside, Harris and Vasquez stayed together and Johnny went with some of the other friends. Partygoers were drinking alcohol and inhaling nitrous oxide.
After Harris and Vasquez had been at the party for about an hour to an hour and a half, Vasquez tapped Harris on the shoulder and directed his attention to an area about five to six feet away. Harris looked down and saw Johnny on the “floor.” One heavyset man was standing at Johnny’s side and kicking him in the ribs and shoulders. A slimmer man, dressed in a white tank top, was standing at Johnny’s feet and kicking him.
Harris went toward the heavyset man to stop him from kicking Johnny. When Harris tried to push him away from Johnny, the man struck Harris in the face with a closed fist. Harris did not strike back, choosing instead to repeat, “It’s cool.” The man hit him a second time, and when he swung a third time, Harris lowered his shoulder and pushed him into a table. The man stood up and charged Harris with a beer bottle in his hand. Harris noticed that Vasquez had picked up a chair, as if she was preparing to throw it. The man hit Harris in the head with the bottle, causing the bottle to break. Harris felt blood running down his cheek and he thought he was going to pass out.
Harris then heard four to five gunshots. He looked to his right and saw the man in the white tank top shooting a gun in a downward direction toward the area where Harris had last seen Johnny on the ground. The shooter was about nine feet from Harris and was backing up toward the entrance of the home as he fired.
After the shooter was out of view, Harris walked toward the entrance of the house to make certain he was gone. The shooter reappeared in the entrance, and while facing Harris from a distance of about six feet, he fired and struck Harris in the chest. As Harris turned and tried to get away, he heard more gunfire. He was struck in the legs. Harris staggered inside the house and fell to the kitchen floor, where people tried to render aid. As a result of the shooting, Harris suffered seven wounds. He underwent two surgeries and six months of therapy.
On October 2, 2003, while Harris was in the hospital, police detectives showed him two 6-pack photo displays. On one, he circled the photograph of the person he believed was the heavy set man who had struck him with the beer bottle. Harris remembered that the man was collecting the cover charge at the entrance to the party. Harris was shown another six-pack. He selected a photograph and told officers that he recognized the person in the photo as the man who shot him. The picture Harris chose was not a photo of defendant. Three weeks later, Harris was shown another six-pack and he circled a photograph of defendant, stating that he was the shooter.
At the preliminary hearing, Harris said that defendant looked similar to the shooter. Harris explained that on the day of the incident, the shooter had a shaved head and a mustache. In court on the day of the preliminary hearing, defendant had longer hair and his mustache had grown thicker. At trial, Harris identified defendant as the shooter.
Jesus Aguilar was the host of the party on September 27. The site of the party was the backyard of his parents’ house. He was in the street when he heard gunshots that appeared to be coming from the area of the party. He estimated that he heard 10 shots. After the shooting stopped, Aguilar saw a person he knew as “Trouble” running with a man whom Aguilar had seen in Trouble’s company on prior occasions. Earlier, Trouble and the man arrived at the party together. Trouble’s companion had an “Orange County” tattoo on the left side of his head. As Trouble and the man ran from the location, Aguilar saw that Trouble’s companion had a gun. At trial, Aguilar identified defendant as the man with the tattoo who had the gun.
At various times during the trial, he is also referred to as “Troubles.”
Aguilar ran to the backyard. He saw a female on the ground who was bleeding and a male (Harris) lying on the floor inside of the house who had been shot. The police were called and they arrived at the location. Nine expended nine-millimeter casings were found in the backyard. A cell phone was also found at the scene.
While the police were at the home, Aguilar received a telephone call. A detective directed Aguilar to place the call on speaker. Aguilar recognized defendant’s voice on the telephone. Defendant told Aguilar that he had better not say anything to the police because defendant knew where he lived. A detective testified that Aguilar informed him that defendant told Aguilar to throw away the cell phone defendant had dropped at the scene. At trial, Aguilar did not recall making this statement. After the call ended, Aguilar told police that defendant was the caller.
Los Angeles Police Department Detective Warren Porche heard the call placed to Aguilar. The call came in at approximately 2:30 a.m. on September 28. At Porche’s direction, the call was placed on speaker. Porche said the male who spoke to Aguilar seemed nervous and excited. He asked Aguilar if the police were at the scene. Porche directed Aguilar to tell the caller that the police were not there. The caller asked if someone had been shot, and Aguilar said yes. When the caller asked Aguilar what he told the police, Aguilar responded that he told them he did not see anything. The male warned Aguilar not to say anything to the police because he knew where Aguilar lived. The caller told Aguilar that if he found a cell phone to throw it away and to wipe the cash box down “really good.” Aguilar told Porche that the caller was “the fool with the O C tattooed on his head.”
Ruben Padilla attended the party. When he arrived, he paid a cover charge to two men who stood at the entrance to the party. Defendant was one of those men. Later, Padilla saw defendant showing a gun to two females. He was waving it around. Defendant pointed the gun toward Padilla, said, “I should shoot this fool” or “I feel like shooting somebody, ” and immediately pointed the firearm downward.
At the time of trial in July 2008, Padilla had been an officer with the Los Angeles Police Department for a year and a half.
At around 1:30 a.m., Padilla observed the other man who had been collecting money with defendant at the gate arguing with another male. Johnny was backing away from the man and saying, “I’m sorry. I’m sorry.” Defendant was standing next to the male with whom Johnny was having the argument.
This is the person Harris identified as Johnny, the named victim in count 3, Juan Anda. For the sake of clarity, we will refer to the male described in Padilla’s testimony as Johnny.
As Johnny continued to back away, the man struck him with a closed fist. Johnny fell to the ground and the male started kicking him in the ribs. A second male began kicking Johnny. Defendant stood about eight feet away from the area where Johnny was being kicked. Padilla saw Harris attempt to push the male who had punched Johnny. A female (Anna Vasquez) stood between Johnny and the second man who was kicking him. Padilla saw the man strike Harris with his fist and Harris push the man into a table. The man got up, grabbed a beer bottle, and hit Harris in the head with it. Harris staggered back, and Vasquez tried to grab the man by the back of his jersey. The male swung at Vasquez with a closed fist and missed. Vasquez picked up a plastic chair and followed the man, who was walking away from the area. The man and Vasquez went through the gate and out of view.
After about 15 seconds, Vasquez ran into the backyard. Defendant entered behind Vasquez, pointed a semiautomatic handgun at her, and fired two or three rounds. Padilla hit the ground. When he looked up, he saw Harris diving into the kitchen through the sliding glass door. Defendant fired five to eight rounds into the house. Padilla believed defendant was shooting at Harris.
Juan Anda also attended the party on September 27. He acknowledged that some of his friends called him Johnny. Earlier that evening, he met with Harris and Vasquez and the three drove to a liquor store. At the store, they joined other friends and the group decided to go to the party. About 20 of them drove to the location in different cars.
While at the party, he and Harris went into the house to see if they could use the bathroom. A person standing near the entrance gave them permission. Later, Anda wanted to use the bathroom again. He approached the entrance and encountered a group. Anda asked if the person who had let him use the bathroom was still around. One of the males said, “You don’t know my homeboy, ” and hit Anda in his head or face with a closed fist. Anda took a step back and explained that he only wanted to use the bathroom, and the male struck him again. Anda hit him back and several males began to fight him. Someone hit Anda with an object and he landed on his back.
As he lay on the ground, Anda was kicked. He covered his face with his hands. At some point, the kicking stopped. Anda waited a moment and lowered his hands. He saw a person holding a gun. He saw the person’s arm move and the gun was pointed at Anda’s head. Anda put his hand up. He heard two to three gunshots and felt his arms or hand swelling and saw blood. Anda noticed feet running by. He stood up, heard two more shots, and felt his legs buckle. He walked out of the yard looking for his friends. He saw people running on the street and heard more gunshots. Anda suffered gunshot wounds to both legs.
Natalie Rico and her friend Lisa Rios met defendant and his friend Trouble on Labor Day weekend in 2003. On September 27, 2003, the night of the shooting, Rico and Rios were picked up by Trouble and defendant in a blue Ford Thunderbird. The four went to a casino and then to the party. After they arrived, defendant stood near the entrance of the party and collected money from guests. Rico observed defendant drinking at the party and he appeared to be getting drunk. At some point, Trouble became upset with another guest. Trouble and his friends, one of whom Rico saw with a handgun, followed the guest as he left the party. At trial, she could not recall who had the weapon. Rios pulled Rico inside the house and into a bathroom. While inside, Rico heard gunshots.
Lisa Rios gave substantially the same testimony regarding how she met Trouble and defendant and the events at the party. Additionally, she stated that Trouble dropped his cell phone during the altercation with the guest.
After the shooting, Rico was interviewed by police. After she spoke to detectives, they drove her home. Rico received a call from defendant. He said if they asked her anything about a cell phone, she should say that it was hers. Rico told him she did not want to get involved.
Rico gave Detective Robert Solorza two phone numbers that she said she used to contact defendant. Solorza discovered that the numbers came back to a subscriber named Arash Safai. Using department resources, Solorza was able to obtain Safai’s photograph. After some follow-up, the detective located Safai’s parents’ home. When detectives arrived at the home, they saw a blue Ford Thunderbird that was registered to Arash Safai. Solorza later determined that Safai and Trouble were the same person.
Solorza was able to obtain the records for the phone numbers Rico used to contact defendant. The records revealed that at 2:37 a.m. on September 28, 2003 (the early morning hours after the shooting), one of the phones was used to make a six-minute call to Jesus Aguilar. Defendant’s name was not connected to either of the numbers Rico said she used to contact him.
On November 17, 2003, Detective Gregory McKnight interviewed defendant, who was in custody in Las Vegas. After advising defendant of his Miranda rights, McKnight gave him details of the murder investigation, including the fact that defendant had been identified. After initially denying any knowledge of the incident, defendant abruptly said, “Fuck it, ” and admitted that he was at the party.
Defendant said he went to the party with two girls and his friend Trouble. While there, defendant learned that Trouble was in an altercation. He ran to the backyard, saw Trouble on the ground, pulled out a gun, and started firing into the crowd. Defendant claimed that he was pretty drunk and did not really know what he was doing. After the shooting, defendant left the location and went to a friend’s house.
We note there are two individuals known as Johnny. As we discussed, one is Juan Anda. The other is Trouble, defendant’s friend who went to the party with him and the person who Detective Solorza learned also went by the name of Arash Safai. Although defendant referred to Trouble as Johnny in his statements to Detective McKnight, in order to avoid confusion, we will substitute the name Trouble.
At the conclusion of the interview, the detective prepared a handwritten document that included defendant’s statement. After each paragraph, defendant signed his name.
On July 28, 2004, McKnight flew to Las Vegas to bring defendant to Los Angeles. After arriving with defendant at Newton Station in Los Angeles, McKnight conducted a second interview. McKnight produced the document defendant had signed after the first interview in 2003 and told defendant that he wanted to go over what they had discussed. The second interview was audio taped and the recording was played for the jury.
During the second interview, defendant told McKnight that whenever he went some place with Trouble, Trouble would start fights. The fights would cause defendant to “get down with” Trouble. Based on his training and experience, McKnight knew that “[g]etting down is getting involved, being part of the fight, doing what has to be done to deal with the situation.”
Defendant said that he was drunk on the night of the shooting, and got involved in two fights with Trouble. At first, Trouble had the gun, however, defendant asked Trouble to let him hold it because “at that time... [defendant] knew what [he] was doing. [He] wasn’t too drunk.” When he learned Trouble had become involved in the second fight, defendant went toward the backyard. At this point, defendant was drunk. When he looked into the yard, he could barely see because it was so dark. Defendant claimed that he “panicked” because he saw a number of people around Trouble. “Out of nowhere” he got the feeling that he should start shooting. Defendant fired the weapon, but did not see anyone get hit. After the shooting, defendant went to a friend’s house. Later, defendant gave the gun to the friend. Defendant believed the friend and another man took the gun apart and disposed of it.
The parties stipulated to the following: (1) Anna Vasquez died from a gunshot wound to the head and neck; and (2) a public defender investigator interviewed Jesus Aguilar and Aguilar said he was at the party, heard the shooting, did not see who was shot or who fired the weapon, did not know anyone who was allegedly involved, and did not see anything.
DISCUSSION
I. The Alleged Miranda Violation
Defendant does not take issue with the admission of his November 2003 interview. He contends, however, that his July 2004 statement should have been suppressed because Detective McKnight did not readvise him of his Miranda rights. Defendant claims the error was prejudicial because he provided inculpatory details in the second interview establishing that he deliberated and premeditated before committing the murder and attempted murders.
The Evidence Code Section 402 Hearing
At trial, defendant’s counsel sought to have both statements excluded on the ground that the police did not adequately advise defendant of his right to remain silent. The following testimony was elicited at the hearing.
On November 17, 2003, Detective McKnight and his partner interviewed defendant in a Nevada jail where defendant was in custody. After introducing himself to defendant and explaining that he was there to discuss a homicide and attempted homicide, McKnight gave defendant his Miranda rights. Defendant acknowledged that he understood his rights, and the two began talking about the case. The ensuing interview was not tape recorded. After the interview was completed, defendant’s statement was put in writing and he signed the statement after each paragraph. One paragraph read, “On November 17, 2003, at 1240 hours, I was interviewed by Detective McKnight and Detective Thompson. Prior to the interview Detective McKnight advised me of my rights.”
McKnight advised defendant that he had a right to remain silent, to have an attorney present before and during any questioning, and that if he could not afford an attorney, one would be appointed for him free of charge before any questioning if he so desired.
Seven months later, on July 28, 2004, McKnight drove to Nevada to transport defendant to California. After arriving in Los Angeles, McKnight spoke to defendant in an interview room at Newton Station. The interview was tape recorded. After showing defendant the written statement that was prepared in 2003, McKnight asked him if he remembered how McKnight had advised him of his rights prior to their first conversation in Nevada. Defendant answered, “Yes.”
The court found that the Miranda advisement prior to the November 2003 interview was adequate. As to the July 2004 advisement, the court concluded, “it’s sufficient when [defendant is] asked if he remembered the advisement, he says yes, and still talked to the detective.”
Defendant acknowledges that Miranda warnings given prior to one interview need not be repeated at a later contemporaneous interview. He urges that the seven-month gap between the first and second interviews bars the application of that principle in this case. We need not resolve the issue. We conclude that any error in admitting defendant’s second statement was harmless beyond a reasonable doubt. (See People v. Cunningham (2001) 25 Cal.4th 926, 994 [when statement admitted in violation of Miranda, the harmless error analysis of Chapman v. California (1967) 386 U.S. 18, 24, applies].)
Defendant places great emphasis on two statements that he made during the second interview and asserts they were “strongly probative of both criminal propensity and criminal motive, the prosecutor placed great emphasis upon it in her jury argument, and the trial court found that the jury could rely upon it as proof of deliberation. For these reasons, the possibility that the evidence contributed to the jury’s findings of deliberation cannot be rebutted[] beyond a reasonable doubt.” The first statement is when defendant informed the detective that he knew Trouble would get into fights whenever they were together and he felt it necessary to support Trouble. The second is when defendant learned Trouble had gotten into the fight just prior to the shooting. Defendant stated to the detective, “[Trouble] was like my brother, you know? And supposedly I had to get down.” He highlights references the prosecutor made to the last statement in closing argument and suggests she relied heavily on it to prove defendant acted with “a deliberated express malice” because he had supported Trouble in prior fights. We are not persuaded.
In arguing that defendant deliberated and premeditated, the prosecutor asked the jury, “Did the defendant consider his actions beforehand? Did he arrive after careful thought at his decision? That his actions were arrived at after weighing the pros and cons? How much time, as I stated, is legally required? There is no minimum time required.” She argued, “When the defendant armed himself with the gun, he premeditated and deliberated. That is he took his gun from wherever on his person he was holding it, and he took it out. He decided to take that out. He weighed what he was going to do. All eight times the defendant pulled the trigger, he premeditated and deliberated.” Thus, the prosecutor did not rely on defendant’s statements to persuade the jury that he acted with deliberation and premeditation.
We address defendant’s claim that the prosecutor used his second statement to rebut any inference that he was unable to deliberate due to his intoxicated state. It is without merit. Defendant concedes that if his second statement merely duplicated his first, any error was harmless. In his first statement to police, defendant claimed that he was drunk when he fired the weapon. He added nothing new in this regard during his second interview. As a result, any argument the prosecutor made with respect to defendant’s claim of intoxication could have been made even if the second statement had not been admitted.
Nor are we persuaded that defendant’s second statement provided the evidence of deliberation and premeditation. Defendant’s references to prior fights merely explained his motive for becoming involved in the dispute on the night of the shooting. He gave the same reason, albeit with less detail, in his first statement when he told McKnight that he went into the backyard, saw Trouble on the ground, pulled out his gun, and fired into the crowd. With respect to the crucial issues of intent and premeditation defendant’s second statement was entirely exculpatory. He claimed that when he saw Trouble on the ground, he “panicked” and the urge to shoot came “out of nowhere.” He implicitly denied intending to kill anyone, as he said that he fired indiscriminately into the crowd and did not see if any of the bullets struck a target. Defendant also reiterated several times that he was drunk when he fired, thereby attempting to establish he was in no condition to consciously deliberate or premeditate.
The evidence of defendant’s deliberate and premeditated intent to kill was overwhelmingly established by the testimony of the witnesses, not his statement. Notwithstanding his claim to the contrary, defendant did not shoot indiscriminately without purpose. He intentionally fired separately at his three victims. Vasquez was shot as she returned to the yard after following Trouble toward the street. Deliberation and premeditation were shown by defendant’s decision to track Vasquez as she walked into the yard before firing. Defendant makes much of the fact that Ruben Padilla, who described how Vasquez was shot, gave conflicting statements as to whether he saw Vasquez return to the yard. The fact remains, regardless of whether Padilla saw defendant follow Vasquez into the yard, there is no dispute that he saw Vasquez leave the backyard. Later, he noticed Vasquez once again in the yard and defendant walking behind her. Defendant pointed the handgun at her and fired two or three rounds.
Kevin Harris was shot while he was standing near the entrance of the house and Juan Anda was hit by bullets as he was in the yard. Harris saw defendant aim and fire in the direction where Harris had last seen Anda on the ground. When Harris went toward the entrance of the house, defendant appeared, pointed the gun directly at Harris, and, from a distance of about six feet, fired the weapon. The evidence that defendant committed three shootings at close range separated by time and place established that he had the intent to kill and deliberated and premeditated before firing at each victim.
We have little difficulty concluding that the admission of defendant’s second statement was harmless beyond a reasonable doubt. The other evidence painted the portrait of an individual who committed deliberate and premeditated murder and attempted murder by setting forth the manner in which the crimes were perpetrated. Although defendant goes to great lengths to point out inconsistencies in the testimony, that does not advance his cause. Given defendant’s claim in the second interview that he “panicked” prior to shooting, that the urge to shoot came “out of nowhere, ” and that he did not aim at any person in particular, the jury could not have relied on his admissions to return the verdicts that it did. In finding that defendant acted with deliberation and premeditation, the jury necessarily rejected his self-serving statements and accepted the testimony of the witnesses.
II. Defendant’s Objection to the Prosecutor’s Argument
Defendant contends that the trial court erred by overruling his objection to the prosecutor’s argument as it related to the element of deliberation. We conclude he forfeited the contention by failing to object on the ground advanced on appeal. In any event, the trial court did not err.
Prior to argument, defendant’s counsel informed the court that she had reviewed some of the slides the prosecutor planned to use in her summation to the jury. Counsel stated that she had a problem with the “deliberation and premeditation section, but I think it’s more like a beyond a reasonable doubt type thing, and she seems to be equating the decisions to enter an intersection with premeditation.” After the prosecutor responded that she believed a driver who decided to enter an intersection deliberated before doing so, counsel continued. “And I guess the problem I had with that is that I think it’s analogous to when prosecutors equate a beyond a reasonable doubt standard such as with the decision to marry.”
Counsel informed the court that “there’s a case right on point that came out and said that is absolutely wrong.” After the court agreed, counsel reiterated, “I guess that’s my concern. I don’t have a problem with the analogy of what [the prosecutor] is trying to illustrate. My problem is that they have to show this beyond a reasonable doubt. And I guess that’s just my job to make very clear to them while there must be some weighing going on, it still must be proven beyond a reasonable doubt, and the weighing that we do for beyond a reasonable doubt is substantially different than making a choice of going into an intersection.” (Italics added.) After the court agreed, counsel concluded, “So I guess that’s the distinction. But the blurring could be problematic, and that’s my only concern, and I’ll submit.” (Italics added.)
See People v. Nguyen (1995) 40 Cal.App.4th 28, 35-36.
Defendant’s complaint on appeal is that the prosecutor misled the jury by claiming that deliberation could be instantaneous, contrary to the holding in People v. Bender (1945) 27 Cal.2d 164, overruled on another ground in People v. Lasko (2000) 23 Cal.4th 101, 110. Nowhere in trial counsel’s objection is that concept addressed. Despite defendant’s assertion that the trial court understood his objection to relate to the issue he now raises (a conclusion we do not draw), at most, counsel expressed the concern that the prosecutor’s argument would not make it clear to the jury that the elements of premeditation and deliberation had to be proven beyond a reasonable doubt. She stated that she had no problem with the prosecutor’s point that deliberation can occur in a short time. Thus, defendant’s contention is forfeited. (People v. Thornton (2007) 41 Cal.4th 391, 454.)
Our conclusion necessarily leads us to reject defendant’s claim that an objection was futile.
On the merits, the court did not err. The case upon which defendant relies, People v. Bender, supra, 27 Cal.2d 164, did not hold that it is inherently misleading to inform the jury, as the prosecutor did here, that one can deliberate in a “split second.” In Bender, the court instructed the jury that in order to find one guilty of first degree murder there need be shown “‘no appreciable space of time between the intention to kill and the act of killing-they may be as instantaneous as successive thoughts of the mind’; that ‘A man may do a thing willfully, deliberately and intentionally from a moment’s reflection as well as after pondering over the subject for a month or a year’; that ‘He can premeditate, that is, think before doing the act, the moment he conceives the purpose, as well as if the act were the result of long preconcert or preparation.’ (Italics added.)” (Id. at p. 182.) The Supreme Court noted, “Of course the instruction that there need be ‘no appreciable space of time between the intention to kill and the act of killing...’ is abstractly a correct statement of the law.” (Ibid.) The court concluded, however, that the instruction given to the jury was misleading because the trial court failed to give it an appropriate definition of the words “deliberate” or “premeditate.” The court stated that if a trial court attempts to define or describe the meaning of those terms, it should do so fairly and completely. As an example of a proper instruction, the court set forth, virtually verbatim, the language contained in CALJIC No. 8.20. (Id. at pp. 182-185.)
Thus, the prosecutor’s argument did not constitute a misstatement of the law. While arguably error under Bender might have occurred if the prosecutor’s statement had been the last word to the jury on the subject, that was not the case. The court informed the jury that it “must accept and follow the law as I state it to you, regardless of whether you agree with it. If anything concerning the law said by the attorneys in their arguments or at any other time during the trial conflicts with my instructions on the law, you must follow my instructions.” (CALJIC No. 1.00.) The court appropriately gave the jury a definition of deliberation that was contained in CALJIC No. 8.20 with respect to the murder and CALJIC No. 8.67 as to the attempted murders.
Defendant urges that the jury instruction did not conflict with the prosecutor’s argument, and concludes the jury was misled. Not so. He focuses on the language in CALJIC No. 8.20 that states: “The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated.” He argues the cited language supports the prosecutor’s claim that one can deliberate in a split second. However, he ignores the portion of the instruction that informs the jury, “The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation as will fix an unlawful killing as murder of the first degree. [¶] To constitute a deliberate and premeditated killing, the slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, he decides to and does kill.” The full instruction ensured that the jury was not misled as to what was necessary to sustain a verdict of murder in the first degree or attempted willful, deliberate, and premeditated attempted murder.
III. The Prior Conviction
Defendant contends that the trial court’s use of a juvenile adjudication as a prior serious felony conviction violated his right to a jury trial. He concedes the Supreme Court decided the issue against his position in People v. Nguyen (2009) 46 Cal.4th 1007, 1022. We are bound by that ruling. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.)
DISPOSITION
The judgment is affirmed.
We concur: WILLHITE, Acting P.J.MANELLA, J.