Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County. Ct.No. RIF128560 Joan F. Burgess, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Daniel G. Koryn, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Janelle M. Boustany, Deputy Attorney General, and Peter Quon, Jr., Supervising Deputy Attorney General, for Plaintiff and Respondent.
OPINION
Gaut J.
All statutory references are to the Penal Code unless stated otherwise.
A jury convicted defendant of two counts of attempted wilful, premeditated murder (§§ 664/187); one count of discharging a firearm at an occupied vehicle (§ 246); two counts of unlawfully possessing a firearm (§ 12021, subd. (e)); and one count of possessing stolen property (§ 496). The jury found true the special allegations that defendant personally fired a handgun while committing attempted murder and also when he shot at the occupied vehicle. (§§ 667, 1192.7, 12022.53.) The jury also found true the allegation that defendant committed all the crimes for the benefit of a street gang within the meaning of section 186.22, subdivision (b). The court sentenced defendant to a prison term of 40 years plus 30 years to life.
Defendant argues on appeal there was insufficient evidence of wilful, deliberate, and premeditated murder and the court erred by not giving an instruction about the lesser included offense of attempted voluntary manslaughter. Defendant also accuses the prosecutor of prejudicial error during closing argument. We reject all of defendant’s contentions and affirm the judgment.
2. Facts
Jermaine Spence and Clifford Parks had finished lunch at Alberto’s Mexican Food in Riverside and were leaving in Spence’s white Mustang vehicle when a burgundy-red Expedition SUV drove into the restaurant parking lot and blocked the Mustang. The SUV driver pulled out a gun and made some unintelligible comments that were muted by the Mustang’s closed window. The SUV driver then pointed the gun and fired four to six shots at the two men. Spence and Parks ducked the gunfire and ran back into the restaurant. The shooter, later identified as defendant, was an African-American man with braids, wearing a white skull cap and a black baseball cap. Two other witnesses to the shooting identified defendant. The two victims were also African-American.
The police identified defendant’s residence and conducted a search, finding a shotgun, shells, a white skull cap, and a black baseball cap. The police executed a traffic stop of a car occupied by defendant as a passenger. The police recovered a Jennings firearm concealed in a stuffed toy and a loaded magazine. Expended ammunition found at the scene of the parking lot shooting matched the firearm from the car.
Defendant had previously admitted being a gang member of Geer Street Crips. A gang expert testified about the gang activities of the Geer Street Crips and other evidence confirming defendant’s gang affiliation. The expert asserted defendant was a gang member and the shooting was committed for the benefit of the Geer Street Crips.
3. Premeditation and Deliberation
Defendant challenges the sufficiency of the evidence to support the jury’s findings that the attempted murders were wilful, deliberate, and premeditated. To sustain a finding of premeditation, the evidence must show planning, motive, and manner, meaning either extremely strong evidence of planning, or evidence of motive and planning or manner, or evidence of manner and planning or motive: “The type of evidence which this court has found sufficient to sustain a finding of premeditation and deliberation falls into three basic categories: (1) facts about how and what defendant did prior to the actual killing which show that the defendant was engaged in activity directed toward, and explicable as intended to result in, the killing—what may be characterized as ‘planning’ activity; (2) facts about the defendant’s prior relationship and/or conduct with the victim from which the jury could reasonably infer a ‘motive’ to kill the victim, which inference of motive, together with facts of type (1) or (3), would in turn support an inference that the killing was the result of ‘a pre-existing reflection’ and ‘careful thought and weighing of considerations’ rather than ‘mere unconsidered or rash impulse hastily executed’ [citation]; (3) facts about the nature of the killing from which the jury could infer that the manner of killing was so particular and exacting that the defendant must have intentionally killed according to a ‘preconceived design’ to take his victim’s life in a particular way for a ‘reason’ which the jury can reasonably infer from facts of type (1) or (2).” (People v. Anderson (1968) 70 Cal.2d 15, 26-27; People v. Perez (1992) 2 Cal.4th 1117, 1125-1127.)
Defendant’s manner of committing the crimes, by blocking the Mustang’s exit and targeting the victims for multiple firings, demonstrated he acted intentionally and deliberately. Defendant also had the gang-related motive of increasing his and the gang’s status in the neighborhood. In spite of defendant’s extensive arguments to the contrary, we conclude the combination of manner and motive was sufficient evidence of premeditation and deliberation when viewed in the light most favorable to the prosecution. (People v. Lucero (1988) 44 Cal.3d 1006, 1018.)
4. Instruction on Voluntary Manslaughter
Defendant asserts the court erred by refusing to give a jury instruction on attempted voluntary manslaughter as a lesser included offense of attempted murder. He argues Judicial Council of California Criminal Jury Instructions (CALCRIM) Nos. 603 and 604 were warranted because the attempted killing could have been prompted by a sudden quarrel, heat of passion, or imperfect self-defense. In particular, defendant, who claimed at trial he was misidentified, now asserts on appeal that the jury might have determined he performed the shooting as an act of gang-related rivalry. Using extremely speculative reasoning, defendant argues that the shooter may have perceived the victims to be rival gang members who posed a challenge or threat and upon whom he fired in self-defense. But no such evidence or argument was presented at trial. Having reviewed the record and for all the reasons advanced by the People in the respondent’s brief, we agree with the trial court and the People there was no evidence to justify instruction in this vein and it would have been error to give it. (People v. Cole (2004) 33 Cal.4th 1158, 1218; People v. Barton (1995) 12 Cal.4th 186, 201; People v. Guiton (1993) 4 Cal.4th 1116, 1129.)
5. Prosecutorial Error
Defendant’s final argument is the prosecutor improperly vouched for the credibility of the gang evidence when she mentioned the gang expert’s purported reliance on other law enforcement gang experts who had not testified. (People v. Frye (1998) 18 Cal.4th 894, 971.) The court sustained defense counsel’s objection and immediately admonished the jury that the closing argument was not evidence and the jury should make its decision independently, based on the evidence presented at trial.
We conclude the improper comment was not prejudicial error. We presume the jury followed the court’s admonition not to regard the prosecutor’s argument as evidence. (People v. Sanchez (2001) 26 Cal.4th 834, 852.) It is not reasonably likely the jury construed or applied the prosecutor’s brief statement in an objectionable fashion. (People v. Brown (2003) 31 Cal.4th 518, 553-554; People v. Morales (2001) 25 Cal.4th 34, 44.) Nor, under these circumstances, do we perceive the prosecutor demonstrated intemperate, egregious behavior or deceptive or reprehensible methods, resulting in fundamental unfairness and a denial of due process. (People v. Samayoa (1997) 15 Cal.4th 795, 841, 843; People v. Gionis (1995) 9 Cal.4th 1196, 1214-1215.)
6. Disposition
We affirm the judgment.
We concur:
Hollenhorst Acting P. J., Miller J.