Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCR471817
Jones, P.J.
A jury convicted Gabriel Tafolla and Adan Valdovinos (collectively, appellants) of first degree murder (Pen. Code, § 187) and attempted murder (Pen. Code, §§ 664, 187, subd. (a)). Tafolla challenges his conviction on three grounds. He contends: (1) the trial court erroneously excluded evidence that the victims belonged to a gang; (2) there was insufficient evidence to support his convictions; and (3) the pattern instructions defining reasonable doubt and evidence, CALCRIM Nos. 220 and 222, prevented the jury from considering a lack of evidence to decide whether reasonable doubt existed. Valdovinos contends the court erred by excluding evidence of the victims’ gang membership and joins Tafolla’s arguments to the extent they benefit him.
Valdovinos has also filed a petition for writ of habeas corpus (A122423) raising an ineffective assistance of counsel claim. We deny that petition by separate order filed this date.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
We discuss the facts only where germane to the issues raised on appeal.
The Incident
Between 11:00 p.m. and midnight on September 5, 2005, Jose Tello and his friend, Victor Prado, went to Daniel Camargo-Vieyra’s (Camargo) house in Santa Rosa. The three young men sat outside Camargo’s house for about 20 minutes, talking and drinking beer. Then Camargo drove Tello and Prado to a “lunch truck” to buy tacos. They arrived at the taco truck between midnight and 12:40 a.m. on September 6, 2005.
The three men bought tacos and got into Camargo’s car, Tello in the passenger seat and Prado in the backseat. As Camargo began to drive out of the parking lot, a black Honda containing two people — later identified as appellants — drove into the parking lot. Valdovinos was in the driver’s seat and Tafolla was in the passenger seat. The men in each car stared at each other in a “disagreeable way;” then they “started exchanging words.” It appeared to Tello that Tafolla and Valdovinos were laughing at him and his friends. Camargo spoke first. He said something “in a loud manner” like “what the fuck?” or “what the fuck are you looking at?” In response, appellants yelled at Camargo and Tello.
Valdovinos drove up next to Camargo’s car. Tello said, “what the fuck[;] what the fuck?” The occupants of both cars continued exchanging insults and yelling at each other for about 20 seconds. Then Tello threw a bottle of salsa or hot sauce at the Honda. The bottle hit the Honda and Valdovinos began to drive out of the parking lot. Then Tello threw a bottle of soda at the Honda, but missed.
Valdovinos drove the Honda out of the parking lot, followed by Camargo. Valdovinos ran two red lights and Camargo and Tello lost sight of his car. At that point, Camargo, Tello, and Prado returned to Camargo’s house and ate their food outside. About 10 to 15 minutes later, they saw the Honda driving toward them. As before, Valdovinos was driving the Honda and Tafolla was in the passenger seat. When they saw the car approaching, Camargo and Tello walked toward the street because they thought Valdovinos and Tafolla “were coming to fight.”
Valdovinos stopped the car about seven or eight meters from Camargo, Tello, and Prado. He directed Tafolla to “Get out [of the car] and ask them ‘what the heck’s happening.’” After Tafolla got out of the car, Valdovinos turned the Honda around so that it was facing the direction from which it came. Tafolla got out of the car and said, “what the fuck now[?]” He pumped a sawed-off shotgun to load it; then he raised it to his chest and pointed it at Camargo and Tello. Tafolla took a few steps towards Camargo and Tello.
Camargo approached Tafolla with his hands in the air. When he was about four feet from Tafolla, Camargo asked, “what are you going to do, shoot me[?]” At this point, the muzzle of the shotgun was about two and a half feet from Camargo. Tafolla put the end of the shotgun against Camargo’s stomach. Camargo placed his hands on the barrel of the gun and moved it from side to side in front of his body, like he was trying to “move it from his body.” As he did so, Tafolla “was holding [the shotgun] against [Camargo].” Prado described the interaction between Camargo and Tello as a “struggle.”
When Camargo and Tafolla were “very close” to each other, the gun went off. Tello heard the shot and saw Camargo fall to the ground. Tello yelled, “What the fuck did you do?” Then Tafolla turned around and — with the gun pointed at Tello — looked at him. Seeing that Tafolla had pointed the gun at him, Tello bent down and ran between a parked Ford Explorer and another car. Tafolla took a few steps toward Tello and then shot at him. Tello heard the sound of glass breaking. As Tafolla walked towards the cars Valdovinos yelled, “lLet’s go” and Tafolla got into the Honda. The car drove off “pretty fast.”
An evidence technician from the Santa Rosa Police Department found shotgun pellets inside the Explorer and noticed that the back window of the Ford Explorer was “completely shattered.”
Tello kneeled down next to Camargo, held Camargo’s head, and waited for the paramedics to arrive. A short while later, Camargo’s mother ran outside and found Camargo “sprawled by the sidewalk.” Camargo was “gripping his chest” and moaning. Camargo died from a shotgun blast to his lower lateral chest. There were over 100 birdshot pellets in his body.
Two detectives from the Santa Rosa Police Department, Robert Scott and Rainer Navarro, investigated the incident. Scott found the Honda in front of a house on Eardley Street and determined that the car was registered to Valdovinos at that address. Scott saw what looked like salsa stains on the front hood and passenger area of the Honda. Navarro searched the house on Eardley Street pursuant to a search warrant. In a bedroom, Navarro found a shotgun wrapped in a towel or blanket. The gun was not loaded but there were live shotgun shells next to the gun. Navarro found evidence indicating that Tafolla and Valdovinos resided in the bedroom where the gun was found.
Appellants’ Attempt to Introduce Evidence Relating to the Victims’ Purported Gang Membership
At a pretrial conference on January 26, 2006, Tafolla’s counsel informed the court that he had subpoenaed records from law enforcement agencies which pertained to Tello, Prado, and Camargo. Tafolla’s counsel asked the court to review these records in camera to “determine if there’s anything that’s dealing with these individuals that . . . might be important in this particular case.” According to counsel, Tello and Prado were “self-admitted gang members from a gang from Healdsburg [and Camargo] was not only [ ] a gang member but was the [ ] originator, the leader, [and] organized the gang. . . .” Counsel noted that the victims’ conduct “seemed to [ ] be consistent with the type of conduct that gang members do.” The prosecutor opposed Tafolla’s request and moved to quash the subpoenas. The court granted the motion and quashed the subpoenas.
At another pretrial hearing on January 31, 2006, the People moved to preclude defense counsel from mentioning Tello’s gang affiliation during trial. In response, counsel for Tafolla contended that Tello’s gang affiliation was “very substantially important to this case” because the incident was set into motion by Tello’s “aggressiveness” and because Tello, Prado, and Camargo were gang members. Counsel’s theory was that appellants “just tried to scare” the victims, not kill them; according to counsel, one of the appellants made a statement to the effect that the victims, “those . . . ‘cholos, those gang members, like to threaten people and we just didn’t want them to threaten us again. . . .’” Counsel stated that an expert “would testify that this is the way the gang culture is. [Gang members] act on intimidation and they don’t forget things and they act in more — when there’s more than one person involved.” And Valdovinos’s counsel argued that the evidence was “relevant to explain the whole story to the Jury.”
Over the prosecutor’s objection, the court concluded that “if gang motivations played a role in the conduct that ought to be presented to this Jury, then that would open that very, very subject matter to be addressed by both sides, including potentially gang experts to explain how certain retaliations, conduct and demands for respect might be made in that world that might be different from [the one that] potential jurors normally exist in.” The court then ruled that, during voir dire, the parties could make “mini opening statement[s]” and tell prospective jurors that gang evidence would be presented during trial to explain the parties’ motivations. None of the parties referred to gang evidence during their mini opening statements.
During opening statements, however, both the People and Tafolla referred to gang evidence. The prosecutor stated:
“[Y]ou will hear [ ] Mr. Tello was in a gang and Mr. Tafolla was in a gang. And you will hear generally about gangs and how they approach things such as pay back, that if someone does an act of disrespect, such as throwing a bottle of hot sauce on your car, that a gang member has to retaliate or lose respect. . . . And that is why when Mr. Tello . . . started with staring, escalated with some words, typical gang behavior, escalating to . . . throwing hot sauce, [ ] Mr. Tafolla and Mr. Valdovinos had nothing to retaliate with. They come back with a gun, and that’s the ultimate retaliation. It’s pay back time. It’s time to get my respect back. You did something to me. I do something to you. [¶] And you will hear from an expert about gangs, and that’s how they operate. You do something to me. I do something to you.”
In his opening statement, counsel for Tafolla responded:
“. . . [T]he defense will be calling a witness, George Collard . . . one of the top gang experts in the State of California. . . . And what he will tell you is based on the evidence in this case, only the victim and the other two young men that were involved in this case . . . were gang members. He will tell you that neither one of these two individuals — neither of the defendants was a gang member. And he will tell you that the facts of this case are inconsistent, that what Mr. Tafolla did and the way he did it. . . .” At that point, the prosecutor objected and the court sustained the objection.
The People began their case in chief on February 3, 2006. The parties revisited the issue of Collard’s proposed testimony four days later, on February 7, 2006. At a hearing outside the presence of the jury, the prosecutor complained that she had not received any discovery regarding the opinions Collard intended to give. In response, counsel for Tafolla stated that “Mr. Collard may end up saying — completely disagreeing with what I said to the jury. In other words “I don’t know what [Collard is] going to say. . . .” The court stated that it seemed as though “Collard wasn’t prepared to come in and say anything of the kind that had been related by [counsel for Tafolla] in his opening statement” and concluded that an Evidence Code section 402 hearing would be required before Collard could testify. The parties discussed when counsel for Tafolla would make Collard’s report available to the prosecution. At the conclusion of the colloquy, the court explained:
Unless otherwise stated, all further statutory references are to the Evidence Code. Section 402 provides, “When the existence of a preliminary fact is disputed, its existence or nonexistence shall be determined as provided in this article. [¶] The court may hear and determine the question of the admissibility of evidence out of the presence or hearing of the jury; but in a criminal action, the court shall hear and determine the question of the admissibility of a confession or admission of the defendant out of the presence and hearing of the jury if any party so requests. [¶] A ruling on the admissibility of evidence implies whatever finding of fact is prerequisite thereto; a separate or formal finding is unnecessary unless required by statute.” (§ 402, subds. (a)-(c).)
“I think what this juncture reflects is a problem that I continue to have intellectually with this trial, which is the actual relevance of gang information. And other than vague offers as to how this somehow might be relevant, it is quite possible that none of this would come in irrespective of what any expert would say, because I’m frankly unconvinced at this point that a sufficient showing has been made that this case is about gang involvement or that any theory of the defense so far proffered relates to something that could be presented to a jury for their consideration. [¶] . . . I’m frankly unconvinced that they’re really going to come to any fruition as far as any truly relevant issue in front of this jury. And I have yet to hear a theory that would satisfy that ultimate decision, but I’ll let counsel choose the ways in which they prepare their case.” The court then ordered Tafolla’s counsel to provide the prosecution with any information “that will be shared or has been shared with Mr. Collard” by a specific date.
The next time counsel for Tafolla raised the issue of gang evidence was on February 8, 2006, after the conclusion of Tello’s testimony on direct examination. Counsel for Tafolla asked to cross examine Tello and Prado “on various issues related to gangs and gang membership.” Outside the presence of the jury, the court requested an offer of proof on the admissibility of the evidence. Tafolla’s counsel explained that counsel had questioned the jury during voir dire about gang issues and had mentioned gang evidence during opening statements. As his offer of proof, counsel stated that both Tello and Prado admitted belonging to a gang that Camargo founded and that the men had “gang paraphernalia [and] gang tattoos.” Counsel explained that “as an offer of proof I will indicate [that] in the original statements[,] even a number of statements to Detective Harrington[,] both Mr. Tello and Mr. Prado admitted they were gang members, they both have gang-related tattoos. I will indicate that . . . there was gang paraphernalia in their vehicle.” Counsel continued, “as a further offer of proof, maybe the Court would like to hear from a gang expert first as a [section] 402 issue. . . .”
Counsel’s theory was that “what those individuals did out there . . . is consistent with gang members. What do gang members do, intimidate and threaten . . . some of the actions out on the scene . . . with primarily [ ] Camargo, the way he proceeded after seeing the shotgun may also be consistent with what gang members do when confronted with a situation like that. And I think that especially since we went through all this, and the jury heard all this voir dire at this point . . . based on my offer of proof . . . I think [the gang evidence] should come in.” Counsel for Valdovinos joined counsel for Tafolla’s request.
The prosecutor opposed the request, arguing that counsel for Tafolla had not demonstrated the relevance of the gang evidence. She contended that the only reason the evidence would come in would be to “dirty up [the] victim[s] and the witness[es] because they’re gang members.” In response, counsel for Tafolla offered to call upon a gang expert to give an opinion on whether the homicide was “consistent with gang members.”
The court concluded that the offer of proof was insufficient and determined that the parties could not refer to gangs without a further hearing pursuant to section 402. The court explained: “At this juncture the simple ruling is that the offer of proof fails. It could change. There could be something presented during the course of the defense, Mr. Tello’s continuing presence on the witness stand . . . but at this juncture, just because I allowed some voir dire and allowed opening statements to be made . . . does not . . . make that evidence somehow relevant. There is no offer [of proof] before this court that the court could base such a determination on.”
Counsel for Tafolla asked whether the court would “allow that issue in if certain parameters are met with other witnesses.” The court responded, “yes.” Counsel also asked the court to interrupt the prosecution’s case to allow him to call an expert to “lay a further foundation to see if I can show as an offer of proof, information to enable me to cross-examine Mr. Tello . . . on the gang testimony.” The court denied that request as well.
After the prosecution rested its case on February 16, 2006, counsel for Tafolla acknowledged that the court had concluded that his earlier offer of proof regarding gang evidence was insufficient. He asked whether the court might change its ruling “should there be further offer of proof[.]” Specifically, counsel stated, “When the court made its ruling as to the admissibility of any reference to gangs as to any of . . . the civilian witnesses [who] testified, specifically Mr. Tello and Mr. Prado, as well as any evidence in the area of gangs as to either defendant and the court indicated that at that time I had given an insufficient offer of proof to allow that [evidence] in. [¶] I would like to inquire that my assumption or my understanding of the Court’s ruling was that should there be further offer of proof that the Court might change its ruling. And may I inquire that as an offer of proof if my client were to testify in this particular matter as to various items that [] might result in the required offer of proof?” The court responded, “I’d have to say yes to the question in general terms, sure.”
Both appellants rested without presenting any evidence. The jury convicted appellants of first degree murder and of attempted murder. The jury also determined that various enhancements were proven beyond a reasonable doubt. The court sentenced both men to state prison.
DISCUSSION
Appellants’ Argument Regarding Gang Evidence Has No Merit
Appellants devote a substantial portion of their briefs to the contention that the court erred by refusing to admit evidence that Camargo and Tello belonged to a gang. Specifically, Tafolla argues that a “defendant cannot be forced to elect between competing constitutional rights” and that the court’s order impermissibly forced him to choose between presenting a defense (with the gang evidence) and remaining silent. Valdovinos phrases his argument slightly differently, but the substance of his argument is the same. He contends that the court made the “admission of proposed gang evidence conditional on [appellants’] waiver of their constitutional privileges against self-incrimination” and thereby precluded them from presenting a defense.
The fundamental problem with this argument is that the court did not preclude appellants from presenting evidence of the victims’ gang membership unless or until appellants testified. When counsel for Tafolla asked the court whether his client’s testimony might be sufficient to make the gang evidence admissible, the court responded by stating, “I’d have to say yes to the question in general terms, sure.” The court’s response to counsel’s question was not a ruling. And because there was no ruling, “no review can be conducted here.” (People v. Rowland (1992) 4 Cal.4th 238, 259; People v. Samayoa (1997) 15 Cal.4th 795, 827 [“provisional ruling” could not be challenged on appeal (original italics)]; People v. McPeters (1992) 2 Cal.4th 1148, 1179, superseded by statute on another point in Verdin v. Superior Court (2008) 43 Cal.4th 1096, 1106-1107 [“the absence of an adverse ruling precludes any appellate challenge”]; (3 Witkin, Cal. Evidence (4th ed. 2000) XI, Presentation at Trial, § 402, p. 491 [failure to renew offer of proof or seek final ruling may waive error].)
To the extent that appellants contend the court erred in concluding that Tafolla’s offer of proof on February 8, 2006 was inadequate, we find no abuse of discretion. (People v. Foss (2007) 155 Cal.App.4th 113, 126-127.) An offer of proof must inform the trial court of the “‘purpose, and relevance of the excluded evidence.’ [Citations.]” (People v. Guerra (2006) 37 Cal.4th 1067, 1144, disapproved on other grounds in People v. Rundle (2008) 43 Cal.4th 76, 151.) “‘It is the burden of the proponent of evidence to establish its relevance through and offer of proof or otherwise. . . .’” (People v. Brady (2005) 129 Cal.App.4th 1314, 1332, quoting People v. Schmies (1996) 44 Cal.App.4th 38, 51, 53.) “‘An offer of proof . . . must be specific. It must set forth the actual evidence to be produced and not merely the facts or issues to be addressed and argued.’ [Citations.].” (Foss, supra, 155 Cal.App.4th at pp. 127-128, quoting Schmies, supra, 44 Cal.App.4th at p. 53.)
As his offer of proof, counsel stated that both Tello and Prado belonged to a gang that Camargo founded and that the men had “gang paraphernalia [and] gang tattoos.” As stated above, counsel for Tafolla’s theory was that the victims intimidated and threatened appellants and that this behavior was consistent with gang members. The offer of proof was inadequate for two reasons. First, it was speculative and unspecific. Counsel for Tafolla stated that the victims were gang members and suggested that appellants might have been intimidated and threatened by the victims. But counsel did not offer any evidentiary support for these assertions, nor did he specify what specific testimony any of the witnesses — including Collard — would provide to support these assertions. Instead, counsel merely stated that Tello and Prado admitted to a police officer that they were gang members and had gang tattoos. As a result, the trial court properly rejected the offer of proof. “The judge may properly reject a general or vague offer [of proof] that does not indicate with precision the evidence to be presented and the witnesses who are to give it.” (3 Witkin, Cal. Evidence (4th ed. 2000) Form of Offer, § 402, p. 492; see also People v. Carlin (2007) 150 Cal.App.4th 322, 334.)
The offer of proof was inadequate for the additional reason that it failed to demonstrate how evidence of the victim’s gang membership was relevant. In a gang-related case, evidence pertaining to a defendant’s gang membership may be admissible if relevant to a defendant’s motive or identity. (See, e.g., People v. Williams (1997) 16 Cal.4th 153, 193-194 [evidence of defendant’s membership in a gang was relevant to prove his motive for killing the victim, who was dressed like a member of a rival gang].) Here, counsel for Tafolla wanted the court to admit evidence of the victim’s gang membership where there was no evidence then before the trial court or set forth in appellants’ proffer that appellants were members of a gang. Tafolla’s counsel made a vague reference to subjects about which gang expert Collard might testify, but counsel had no discovery to share or other showing to make the victim’s gang association relevant at that point in the trial. As a result, evidence that the victims belonged to a gang would not have a “tendency in reason to prove” appellants had a motive to kill because of gang hostility, nor would the evidence tend to prove “any disputed fact that [was] of consequence to the determination of the action.” (§ 210; see, e.g., Williams, supra, 16 Cal.4th at p. 194; see also People v. Contreras (1983) 144 Cal.App.3d 749, 755.) Moreover, the court made it clear that should the state of the evidence change, such as through the proffer of, or presentation by, the defense of gang expert testimony, the court would reconsider its ruling, and appellants were free to recall Tello or any other prosecution witness when gang testimony became relevant.
In his opening statement, counsel for Tafolla told the jury that neither Tafolla nor Valdovinos were gang members. On appeal, appellants do not contend otherwise.
For the first time in his reply brief, Valdovinos suggests that he received ineffective assistance of counsel if his attorney could have made the required offer of proof without forcing him to testify. We decline to consider this argument. (People v. Lewis (2008) 43 Cal.4th 415, 536, fn. 30 [“Generally, a contention may not be raised for the first time in the reply brief”]; Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764 (Hoffman).) A court will not consider arguments for the first time raised in the reply brief “‘unless good reason is shown for failure to present them before.’” (Hoffman, supra, at p. 764, quoting Neighbours v. Buzz Oates Enterprises (1990) 217 Cal.App.3d 325, 335, fn. 8.) Here, Valdovinos has not shown a good reason for waiting until his reply brief to raise an ineffective assistance of counsel claim.
We reject Valdovinos’s putative ineffective assistance of counsel claim for an additional reason: the record fails to show why trial counsel acted in the way that Valdovinos claims was ineffective. The California Supreme Court has held that “claims of ineffective assistance are often more appropriately litigated in a habeas corpus proceeding” (People v. Mendoza Tello (1997) 15 Cal.4th 264, 267) because a defendant raising an ineffective assistance of counsel on appeal “must establish deficient performance based upon the four corners of the record.” (People v. Cunningham (2001) 25 Cal.4th 926, 1003.) Where, as here, “‘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.’” (Cunningham, supra, 25 Cal.4th at p. 1003, quoting People v. Kraft (2000) 23 Cal.4th 978, 1068-1069.)
Sufficient Evidence Supports Tafolla’s Conviction for First Degree Murder
Tafolla contends that the evidence was insufficient to sustain his first degree murder conviction because there was “no direct evidence” of a plan or of a “preconceived design” to kill. Specifically, Tafolla contends that the gun discharged by accident when he and Camargo were struggling over it. At oral argument, however, counsel for Tafolla acknowledged that there was sufficient evidence to support Tafolla’s first degree murder conviction. We reach the same conclusion. To evaluate Tafolla’s claim, ““we must ‘review the entire record, and drawing all reasonable inferences in favor of [the judgment] . . . determine whether a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’” [Citations.]” (People v. Manriquez (2005) 37 Cal.4th 547, 576-577, brackets in original.) Reversal for insufficient evidence ““‘is unwarranted unless it appears ‘that upon no hypothesis whatever is there sufficient evidence to support [the conviction].’”” (Id. at p. 577.)
“Murder is the unlawful killing of a human being . . . with malice aforethought” (Pen. Code, § 187) and is first degree murder if committed with premeditation and deliberation (Pen. Code § 189). Three categories of evidence are “relevant to resolving the issue of premeditation and deliberation: planning activity, motive, and manner of killing.” (People v. Bolin (1998) 18 Cal.4th 297, 331-332, citing People v. Anderson (1968) 70 Cal.2d 15, 26-27.) But “Anderson does not require that these factors be present in some special combination or that they be accorded a particular weight, nor is the list exhaustive. Anderson was simply intended to guide an appellate court’s assessment whether the evidence supports an inference that the killing occurred as the result of preexisting reflection rather than unconsidered or rash impulse. [Citation.]” (Bolin, supra, 18 Cal.4th at pp. 331-332.) “[P]remeditation and deliberation must result from “‘careful thought and weighing of considerations’” but California courts ““continue to apply the principle that ‘[t]he process of premeditation and deliberation does not require any extended period of time.’ The true test is not the duration of time as much as it is the extent of the reflection. Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly . . . .’ [Citations.]”” (Bolin, supra, at p. 332, quoting People v. Mayfield (1997) 14 Cal.4th 668, 767.)
Manriquez, supra, is instructive. There, the California Supreme Court concluded that “ample” evidence supported the inference that four murders were committed with premeditation and deliberation. With regard to one murder, the Manriquez court noted that “the evidence at trial revealed that defendant and the victim were engaged in a verbal altercation; several minutes thereafter elapsed, at which point defendant approached the victim, pulled a firearm from his waistband, cocked the weapon, and fired several shots to the victim’s head, neck, and chest areas — conduct that, viewed as a whole, supported the jury’s findings of premeditation and deliberation.” (Manriquez, supra, 37 Cal.4th at p. 557.)
As in Manriquez, there is abundant evidence to support the inference that Tafolla killed Camargo with premeditation and deliberation. After the altercation at the taco truck, Tafolla armed himself with a loaded shotgun and went to Camargo’s house with Valdovinos. When they arrived, Valdovinos encouraged Tafolla to get out of the car and to confront Camargo and Tello. Meanwhile, Valdovinos prepared the car for a quick escape. Then Tafolla confronted the victims. He pumped a round of ammunition into the shotgun chamber, raised the gun to his chest, and pointed it at Camargo. From this evidence, a “jury could infer that defendant ‘considered the possibility of murder in advance’” and intended to kill Camargo. (People v. Young (2005) 34 Cal.4th 1149, 1183-1184, quoting People v. Miller (1990) 50 Cal.3d 954, 993; see also People v. Hughes (2002) 27 Cal.4th 287, 371.) A reasonable juror could also infer that Tafolla had a motive for killing Camargo: to effect revenge for Camargo’s taunts at the taco truck. In connection with this motive, the manner of killing supports a finding of premeditation and deliberation. Tafolla placed the end of the shotgun against Camargo’s stomach. When the gun went off and hit Camargo in the chest, Tafolla answered Camargo’s question —“what are you going to do, shoot me[?]” — in the affirmative.
Tafolla attempts to distinguish Manriquez by arguing that he did not fire several shots like the defendant in that case. But the number of shots fired, i.e. the manner of killing, is not dispositive. (Bolin, supra, 18 Cal.4th at pp. 331-332.) Planning activity and motive are also relevant to determining whether there was premeditation and deliberation. (Ibid.) As discussed above, there was ample evidence that Tafolla planned and intended to kill Camargo. Viewing the record in its entirety, we find sufficient evidence to support the jury’s finding of first degree murder. (Id. at p. 333.)
Appellants urge a different interpretation of the evidence of intent to kill: that Tafallo’s intent “may have been only to threaten Camargo not to provoke him again, or to frighten him.” But the fact that a different inference may be drawn from that found to be true by the jury does not render the evidence insufficient. “‘When a jury’s verdict is attacked on the ground that there is no substantial evidence to sustain it, the power of an appellate court begins and ends with the determination as to whether, on the entire record, there is any substantial evidence, contradicted or uncontradicted, which will support it, and when two or more inferences can reasonably be deduced from the facts, a reviewing court is without power to substitute its deductions for those of the jury. It is of no consequence that the jury believing other evidence, or drawing different inferences, might have reached a contrary conclusion.’” (People v. Castro (2006) 138 Cal.App.4th 137, 140 (original italics), quoting People v. Brown (1984) 150 Cal.App.3d 968, 970.)
Sufficient Evidence Supports Tafolla’s Attempted Murder Conviction
Next, Tafolla contends there is insufficient evidence to support his conviction for attempted murder of Tello with premeditation and deliberation. Specifically, Tafolla claims that he had “no preconceived design to take Tello’s life” and that he “fired at Tello only as an afterthought, in response to Tello’s shouting.”
We disagree. There was sufficient evidence that Tafolla premeditated and deliberated before attempting to kill Tello. At the taco truck, Tello challenged appellants by yelling, “What the fuck” and by throwing two bottles at Valdovinos’s car. After the altercation, Tafolla went to Camargo’s house with a loaded shotgun. From this evidence, a jury could reasonably infer that Tafolla planned to kill Tello to punish him for his taunts at the taco truck. There was additional evidence of premeditation and deliberation once Tafolla realized that Tello witnessed Camargo’s murder. After Tafolla shot Camargo, Tello yelled, “What the fuck did you do?” and in response, Tafolla turned around, pointed the gun at Tello, and shot at him. Accordingly, the evidence “suggest[ed] rapid but purposeful planning activity once [Tafolla] realized the potential consequences” of Tello’s presence at the scene of the murder. (See Bolin, supra, 18 Cal.4th at p. 332.) A jury could reasonably infer that Tafolla was motivated to kill Tello to eliminate him as a witness.
The Court Did Not Err By Instructing the Jury with CALCRIM Nos. 220 and 222
The trial court instructed the jury with CALCRIM No. 220, as follows:
“The fact that a criminal charge has been filed against the defendants is not evidence that the charge is true. You must not be biased against the defendants just because they have been arrested, charged with a crime, or brought to trial. [¶] A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt. Whenever I tell you the People must prove something, I mean they must prove it beyond a reasonable doubt. [¶] Proof beyond a reasonable doubt is proof that leaves you with an abiding conviction that the charge is true. The evidence need not eliminate all possible doubt because everything in life is open to some possible or imaginary doubt. [¶] In deciding whether the People have proved their case beyond a reasonable doubt, you must impartially compare and consider all the evidence that was received throughout the entire trial. Unless the evidence proves the defendants guilty beyond a reasonable doubt, they are entitled to an acquittal and you must find them not guilty.” The trial court also delivered CALCRIM No. 222, which defines “[e]vidence” as “the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence.”
Tafolla complains that the definition of reasonable doubt in CALCRIM No. 220, when considered in conjunction with CALCRIM No. 222, prevented the jury from considering a lack of evidence in deciding whether reasonable doubt existed. As the People correctly note, numerous courts have rejected the very argument Tafolla makes here. (People v. Garelick (2008) 161 Cal.App.4th 1107, 1117-1119, review den. July 9, 2008; People v. Campos (2007) 156 Cal.App.4th 1228, 1237-12; People v. Guerrero (2007) 155 Cal.App.4th 1264, 1267-1269; People v. Flores (2007) 153 Cal.App.4th 1088, 1093; People v. Hernández Rios (2007) 151 Cal.App.4th 1154, 1156-1157; People v. Westbrooks (2007) 151 Cal.App.4th 1500, 1509.)
We note that in People v. Zepeda (2008) 167 Cal.App.4th 25, the Third District became the latest court to reject the argument that CALCRIM No. 220 misstates the proof beyond a reasonable doubt standard. As the Zepeda court explained, “[w]e publish our decision primarily to deter the defense bar from continuing to use defendant's line of attack against CALCRIM No. 220, and we urge defense counsel to direct their resources to arguably meritorious grounds of appeal.” (Zepeda, supra, 167 Cal.App.4th at p. 28.) We share the Zepeda court’s exasperation and reach the same conclusion.
For example, in Guerrero, the Third District rejected defendant’s contention that CALCRIM No. 220 “prevented the jury from considering a lack of evidence in deciding whether reasonable doubt existed.” (Guerrero, supra, 155 Cal.App.4th at p. 1267.) The court held that “[t]he instruction neither lowers the prosecution’s standard of proof nor raises the amount of doubt the jury must have in order to acquit a defendant. [¶] Contrary to defendant’s suggestion, CALCRIM No. 220 instructs the jury to acquit in the absence of evidence. In addressing defendant’s claim, we consider whether a ‘reasonable juror would apply the instruction in the manner suggested by defendant.’ [Citation.] The jury is instructed to consider only the evidence, and to acquit unless the evidence proves defendants’ guilt beyond a reasonable doubt. If the government presents no evidence, then proof beyond a reasonable doubt is lacking, and a reasonable juror applying this instruction would acquit the defendant.” (Guerrero, supra, 155 Cal.App.4th at pp. 1268-1269.)
In Campos, the Second District reached a similar result and held that “[t]he only reasonable understanding of the language, ‘[u]nless the evidence proves the defendant guilty beyond a reasonable doubt, he is entitled to an acquittal and you must find him not guilty,’ is that a lack of evidence could lead to reasonable doubt. Contrary to defendants’ claim, CALCRIM No. 220 did not tell the jury that reasonable doubt must arise from the evidence.” (Campos, supra, 156 Cal.App.4th at p. 1238.) And in Flores, the court analyzed CALCRIM No. 220 in conjunction with CALCRIM No. 222 and held that “[n]othing about the instructions given implies to the jury that the defendant must adduce evidence that promotes reasonable doubt or that the defendant must persuade the jury of his or her innocence by evidence presented at trial.” (Flores, supra, 153 Cal.App.4th at p. 1093.)
We agree with every other court that has considered this issue and hold that the trial court did not err by instructing the jury with CALCRIM Nos. 220 and 222.
DISPOSITION
The judgments are affirmed.
We concur: Simons, J., Needham, J.