Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of the County of Los Angeles, County. No. KA080205, Tia Fisher, Judge. Affirmed.
Sharon M. Jones, 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, Senior Assistant Attorney General, Paul M. Roadarmel, Jr., Supervising Deputy Attorney General, Michael C. Keller, Deputy Attorney General, for Plaintiff and Respondent.
MOSK, J.
INTRODUCTION
Following a jury trial, defendant and appellant Alexander Alonzo (defendant) was convicted, inter alia, of two counts of premeditated first degree murder. On appeal, defendant contends there was insufficient evidence of deliberation and premeditation to support the first degree murder convictions and the jury instructions relating to first degree murder were inadequate because they failed to advise the jury that, pursuant to Penal Code section 1097, any reasonable doubt as to the degree of murder must be resolved in defendant’s favor, i.e., if the jury entertained a reasonable doubt that the murders were of the first degree, they could only find defendant guilty of murder in the second degree.
All further statutory references are to the Penal Code unless otherwise indicated.
We hold that the evidence in support of the jury’s finding of deliberation and premeditation as to both murder counts was sufficient and that the jury instructions adequately advised the jury that defendant could only be guilty of first degree murder if a unanimous jury found all the elements of that crime, including deliberation and premeditation, beyond a reasonable doubt. We therefore affirm the judgments of conviction.
Because defendant challenges the sufficiency of the evidence only as it relates to the jury’s finding of premeditation, we limit our discussion to the facts relevant to that issue. For example, although identification was a significant issue at trial, and both sides introduced testimony relevant to that issue, defendant does not challenge on appeal the sufficiency of the evidence on identification; therefore, we omit many of the facts relevant to that issue from the factual background.
On November 20, 2005, Joseph Ramirez (Ramirez) attended a party at the Santisteban’s home located at 2210 James Street in West Covina. At some point, Ramirez, his brother, and victim Roberto Ruiz (Ruiz) left the party to purchase more beer at a Food-4-Less store. When they arrived at the Food-4-Less, Ramirez saw a group of seven to ten males (the Food-4-Less group) in the otherwise empty parking lot. As Ramirez and his two companions exited their car, someone from the Food-4-Less group said something provocative, as if trying to make Ramirez and his companions angry. Ruiz exchanged words with someone in the group wearing a Lakers shirt. It was a short encounter, “maybe about five seconds.”
Several witnesses testified that defendant was wearing a Lakers shirt the night of the shooting.
Ramirez and his two companions then entered the store to purchase beer. As they were deciding on a purchase, the man in the Lakers shirt “got in [Ruiz’s] face again.” Ruiz and the man were “getting into each other’s faces like they were going to fight [right] there. Ramirez and his brother “got behind [Ruiz] and... friends [of the man in the Lakers shirt] got behind him.” But, instead of fighting, the two men shook hands. According to Ramirez, at that point “[i]t was cool.” Ramirez, his brother, and Ruiz walked to the check-out counter and paid for the beer. The man in the Lakers shirt and his friends were in line behind them, and Ramirez concluded that “[n]othing [was] going to happen.”
Outside in the parking lot, Ramirez and his friends encountered other members of the Food-4-Less group who asked, “Where the girls at... [?]” Ramirez and his brother “kept it [the location of the party] quiet,” but Ruiz approached the group and told them that the party was at “Hollenbeck and James.”
Ramirez, his brother, and Ruiz returned to the party. About five minutes after he returned to the party, Ramirez saw the Food-4-Less group walk into the backyard. At first, there were no problems with the Food-4-Less group, but about 10 or 15 minutes after they walked in, victim Adam Rodriguez (Rodriguez) walked up to the Food-4-Less group and started arguing with one of its members. That argument appeared to end, but then other arguments erupted between party-goers and members of the Food-4-Less group. According to Ramirez, “there was a certain group at the end of the backyard where you just didn’t want to be.” After his initial argument with one of the members of the Food-4-Less group, Rodriguez did not engage in any of the subsequent arguments that occurred.
Ramirez was friends with Ruiz, but he did not know Rodriguez.
According to Jose Contreras (Contreras), a member of the Food-4-Less group, Anthony Troncoso (Troncoso) was the first member of that group to argue with one of the party-goers. According to Ramirez, the man with whom Rodriguez argued was not wearing a Lakers shirt.
Ramirez was standing with a friend he had not seen since high school, and there was a “big... group” of people—the Food-4-Less group and other people, including Ruiz—“mixed together” on the cement. The patio area had been lighted earlier, but at that point it was dark. As Ramirez talked to his high school friend, he looked towards the group of people on the patio and “all of a sudden [he] heard [what he thought were] firecrackers.” Ramirez started walking toward the sound, but he “noticed that everyone was running and then the shooter came out of nowhere.” Because it was dark, Ramirez could not see the shooter’s face, but he could see that the shooter “was shooting pretty much at everyone” and that Rodriguez was on the ground underneath the shooter. The shooter, who wore a white shirt and dark jeans, was standing at the edge of the grass shooting toward the patio. Ramirez heard six or seven shots fired. Ramirez saw the shooter run to the side of the house, jump a gate, and exit the backyard.
After the shooting, Ramirez saw at least four shell casings on the patio. He described the shooter to the police as a male Hispanic, about 21 years old, with a shaved head and wearing a white t-shirt, “possibly a jersey.”
Earlier in the evening on November 20, 2005, Contreras had been at a party in Diamond Bar with several friends—the Food-4-Less group. In addition to defendant, Contreras was with Louie and Frankie Paris, Eric and Ricky Quinones, Mario Ibarra (Ibarra), and Troncoso. After leaving the Diamond Bar party, they drove in two cars to a Food-4-Less store to buy beer. At the Food-4-Less store, defendant engaged in verbal altercation with “a carload of guys sitting down in the parking lot....” Contreras was inside a car and did not hear what was said. He remained in the car while defendant, Eric Quinones, and one other member of the Food-4-Less group went inside the store. When defendant, Quinones, and the other member of the Food-4-Less group came out of the store, they told Contreras that there had been another altercation inside the store with friends of the man with whom defendant had the initial confrontation in the parking lot. But then the man with whom defendant had initially argued invited the Food-4-Less group to the party.
Contreras identified defendant and Eric Quinones in a photograph taken from a security videotape of the interior of the Food-4-Less store from that night.
The Food-4-Less group followed the other group to the party and parked on the street. As they walked to the party, Contreras saw a friend, Diana Sandoval, on the street and he introduced her to his friends, including defendant. Defendant was wearing a black Lakers “baseball type jersey.” The group then walked to the party. After Contreras arrived at the party, he realized that the party was at Shannon Santisteban’s house, an acquaintance from high school. Shannon was standing outside her house and did not recognize Contreras at first. But once Contreras reminded her that he knew her from school, she allowed the Food-4-Less group to enter the party.
The Food-4-Less group went straight to the backyard and began drinking beer they brought with them. Contreras noticed that “a lot of people were inside the house, but [that] there [were] still quite a few people outside, as many as 30 or 40.” The party was in West Covina just around the corner from where Contreras grew up; he recognized approximately 15 people that he knew growing up and started reminiscing with some of them. He was talking to them close to the door to the house where a “little D.J.” was set up. The Food-4-Less group was “pretty much right next” to where Contreras was conversing. Contreras could “feel a little bit of tension with the guys that [the Food-4-Less group] had the... altercation with at the Food-4-Less [store].... [Contreras] could see people mad dogging and... talking shit.” But he “wasn’t really paying attention... [because he] was talking to... [his old] friends... [and just] shining it off at first.”
Contreras defined mad dogging as “giving [his group] dirty looks, talking shit, throwing their hands up....”
Contreras then saw Troncoso from the Food-4-Less group approach one man in a group of party-goers, but he did not hear what was said. After that exchange, the two men shook hands and walked away from each other. Following that initial encounter, Contreras’s group “just began drinking, kicking back.” The backyard was not lighted, except for one light “by the door where [Contreras] was hanging out, by where the D.J. was set up.” According to Contreras, “that group of [party-goers] that the altercation... started with, it seemed like they were trying to pick a fight or they kept trying to approach [the Food-4-Less group], trying to start some kind of problems,... [Contreras saw the Food-4-Less group]... in a defense mode,... pretty much worried about what was going to happen.” Contreras told his group “if it’s going to be an issue we should just leave.” The tension between the two groups went on for approximately 30 minutes.
According to Ramirez and eyewitness Richard Madera, Rodriguez was the party-goer who engaged in the initial encounter with the Food-4-Less group.
Contreras went to his high school friends and asked if they knew any of the party-goers that were arguing with the Food-4-Less group, but the high school friends did not know the other men. He then told his high school friends to go inside because defendant had told Contreras, “Don’t trip,... I’ve got your back. I’ll handle this.” (Italics added) As defendant made those remarks, he lifted his shirt and revealed to Contreras the silver gun in his waistband.
While Contreras was talking to his high school friends, he turned back and “it seemed they were going to start fighting and then [Contreras saw defendant] pull out his gun and start shooting.” When the shooting began, everyone ran. Contreras ran into the house and out to the front yard. He joined up with four or five members of the Food-4-Less group and ran to the car. Contreras did not see where defendant went after the shooting. The next time he saw defendant was on “the next street over from [the street on which the party was located].” Defendant was limping; “[i]t seemed like he could barely walk.” Contreras approached defendant who said he needed help, so Contreras helped him to the car. Contreras saw defendant holding the gun, “grabbed it and put it in [his jacket]” to conceal it. Contreras “threw [defendant] in the car and [they] left.” In the car, Contreras gave defendant the gun and defendant “put it away.” Contreras and defendant went back to defendant’s house and “just hung out for a little bit, kind of tripping on what happened, worried, and then after that [Contreras] went home.”
The next day, defendant called to ask if he could leave the gun at Contreras’s house. Contreras told him to bring the gun, which defendant did. Contreras cleaned the gun—a.45 semiautomatic—and put it away; defendant came over the next day and retrieved it.
Sometime after the shooting, Contreras met defendant and other members of the Food-4-Less group at Louie Paris’s house to discuss what their story would be if the police came to talk to any of them. They decided that they would tell the police that they “didn’t know nothing. [They] didn’t hear nothing. [They] just went to the party to have a good time and [they] heard shots and [they] all ran.”
In a tape recorded interview with the police that was played for the jury, detectives asked Ibarra if he knew what happened the night of the shooting, and he replied, “I... went to a party, I don’t know what happened but... went to Food-4-Less, got beer, went to a party... kickin’ it... and [Troncoso] got into it you know what I’m sayin’.... [I was] just trying to calm everybody down. Out of nowhere just... started shooting boom—boom—boom... me and Louis [Paris] just took off runnin,’ [be]cause the... bullets were coming towards our way.” When asked by detectives which of his friends did the shooting, Ibarra responded, “I didn’t—I didn’t really see, but I’m pretty sure it was [defendant]—he was carrying the gun—know what I’m sayin’.” In response to further questioning, Ibarra stated that everybody in the Food-4-Less group knew defendant was carrying a gun. When asked how Ibarra knew defendant had a gun that night, Ibarra explained, “Because I seen the shit with my own damn eyes... when we got into the cars[.]... [I said what is] that shit for—leave that shit here stupid ass....”
Ruiz was shot three times and died at the scene. Rodriguez died from a single gunshot wound. In addition to Rodriguez and Ruiz, party-goers Mark Hinojos (Hinojos) and Jennifer Leos (Leos) were also shot that night at the party. Hinojos was shot in his left leg between the groin and hip. Leos was shot in the middle of her right forearm.
When detectives arrived at the scene to investigate the shooting, they observed Ruiz’s body inside a gate that leads to the backyard. They recovered five bullet casings and three bullets from the backyard, and also observed bullet strike marks at various locations in the backyard. The five bullet casings were fired from the same.45 semiautomatic handgun. The bullets recovered from the scene, as well as those recovered from the bodies of Ruiz and Rodriguez, were fired from the same gun and consistent with bullets loaded into a.45 caliber cartridge.
Ruiz’s autopsy determined that a bullet entered his right arm, passed through his chest and abdomen, and lodged in his lower left chest from where it was recovered. That wound was fatal. Another bullet entered Ruiz’s right buttock and exited his left groin, but that bullet was not recovered from the body. A third bullet entered Ruiz’s left buttock and exited his left groin, but that bullet was not recovered from the body. Rodriguez’s autopsy determined that he died from a single bullet that entered his outer, upper right arm, passed through to the chest, exited the left side of the chest, and lodged in the outer left arm from where it was recovered.
PROCEDURAL BACKGROUND
The Los Angeles County District Attorney charged defendant in an information in Count 1 with the murder of Rodriguez in violation of section 187, subdivision (a)—a felony; in Count 2 with the murder of Ruiz in violation of section 187, subdivision (a)—a felony; in Count 3 with the attempted, deliberate, premeditated murder of Hinojos in violation of sections 664, subdivision (a) and 187, subdivision (a)—a felony; in Count 4 with the attempted, deliberate, premeditated murder of Leos in violation of sections 664, subdivision (a) and 187, subdivision (a)—a felony; and in Count 6 with possession of a firearm by a felon in violation of section 12021, subdivision (a)(1)—a felony. As to Counts 1 and 2, the District Attorney alleged that the offenses charged in those counts were special circumstances within the meaning of section 190.2, subdivision (a)(3). The District Attorney further alleged as to Counts 3 and 4 that the offenses charged in those counts were serious felonies within the meaning of section 1192.7, subdivision (c). The District Attorney also alleged as to Counts 1 through 4 that defendant personally and intentionally discharged a firearm which proximately caused great bodily injury and death within the meaning of section 12022.53, subdivision (d); defendant personally and intentionally discharged a firearm within the meaning of section 12022.53, subdivision (c); and defendant personally used a firearm in violation of section 12022.53, subdivision (b). n addition, the District Attorney alleged that Counts 1 through 4 were committed for the benefit of, at the direction of, or in association with a criminal street gang with one specific intent to promote, further, or assist in criminal conduct by gang members within the meaning of section 186.22. And, the District Attorney alleged that defendant had suffered a prior felony conviction for which he served a prison term within the meaning of section 667.5, subdivision (b).
In Count 5, the District Attorney charged Contreras with being an accessory after the fact in violation of section 32—a felony.
Defendant pleaded not guilty and denied all allegations. Following trial, the jury found defendant guilty of first degree murder on Counts 1 and 2, the murders of Rodriguez and Ruiz, but acquitted him on Counts 3 and 4, the attempted, premeditated murders of Hinojos and Leos. The jury also found defendant guilty on Count 6, possession of a firearm by a felon. In addition, the jury found the special circumstance and firearm allegations true as to Counts 1 and 2.
At the sentencing hearing, the trial court denied probation and sentenced defendant on Count 1 to life in prison without the possibility of parole, plus an additional 25 years to life sentence pursuant to section 12022.53, subdivision (d); on Count 2 to a concurrent sentence of life in prison without the possibility of parole, plus an additional 25 years to life sentence pursuant to section 12022.53, subdivision (d) to run consecutively with the 25 years to life sentence in Count 1; and on Count 6 to one-third of the middle term of 24 months, or 8 months. The aggregate sentence was life in prison without the possibility of parole, plus a consecutive 50 years, 8 months, to life sentence. Defendant timely appealed from the judgment of conviction.
DISCUSSION
A. Standards of Review
Defendant’s challenge to the sufficiency of the evidence in support of the jury’s finding of premeditation is governed by a substantial evidence standard of review. “‘In reviewing [a claim regarding] the sufficiency of the evidence, we must determine “whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” [Citation.] “[T]he court must 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.] We “‘presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.’”’ (People v. Davis [(1995)] 10 Cal.4th 463, 509-510.) If we determine that a rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt, the due process clause of the United States Constitution is satisfied (Jackson v. Virginia (1979) 443 U.S. 307, 318-319 [61 L.Ed.2d 560, 573-574, 99 S.Ct. 2781]), as is the due process clause of article I, section 15, of the California Constitution (People v. Berryman [(1993)] 6 Cal.4th 1048, 1083).” (People v. Osband (1996) 13 Cal.4th 622, 690.)
Defendant’s challenge to the adequacy of the jury instructions on first degree murder raises a question of law and is therefore reviewed under a de novo standard of review. (People v. Martinez (2007) 154 Cal.App.4th 314, 324 citing People v. Posey (2004) 32 Cal.4th 193, 218 [“The independent or de novo standard of review is applicable in assessing whether instructions correctly state the law...”].)
B. Substantial Evidence of Premeditation
Defendant contends that the evidence did not support the jury’s findings of premeditation and deliberation on the murder counts. According to defendant, there was insufficient evidence of planning and no evidence of animosity or motive. We disagree.
In People v. Burney (2009) 47 Cal.4th 203, the Supreme Court explained the concepts of premeditation and deliberation in the context of first degree murder. “A murder that is premeditated and deliberate is murder of the first degree. (§ 189.) ‘“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.’”’ (People v. Jurado (2006) 38 Cal.4th 72, 118 [41 Cal.Rptr.3d 319, 131 P.3d 400], quoting People v. Mayfield (1997) 14 Cal.4th 668, 767 [60 Cal.Rptr.2d 1, 928 P.2d 485].) ‘“An intentional killing is premeditated and deliberate if it occurred as the result of preexisting thought and reflection rather than unconsidered or rash impulse.” [Citation.] A reviewing court normally considers three kinds of evidence to determine whether a finding of premeditation and deliberation is adequately supported—preexisting motive, planning activity, and manner of killing—but “[t]hese factors need not be present in any particular combination to find substantial evidence of premeditation and deliberation.”’ (People v. Jurado, supra, 38 Cal.4th at pp. 118–119.)” (People v. Burney, supra, 47 Cal.4th at p. 235.)
“‘A verdict of deliberate and premeditated first degree murder requires more than a showing of intent to kill. [Citation.] “Deliberation” refers to careful weighing of considerations in forming a course of action; “premeditation” means thought over in advance. [Citations.] “The 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.]”’ (People v. Koontz (2002) 27 Cal.4th 1041, 1080 [119 Cal.Rptr.2d 859, 46 P.3d 335].)” (People v. Harris (2008) 43 Cal.4th 1269, 1286-1287.)
Contrary to defendant’s assertion, there was evidence of planning beyond the evidence that defendant was armed that night. In addition to Ibarra’s statement to the police that defendant was armed the night of the shooting, Ibarra also told the police that in the car, he saw the gun in defendant’s waistband, asked defendant what the gun was for, and told defendant to leave the gun behind. Defendant nevertheless carried the gun concealed on his person into the party. Moreover, Contreras testified that at the party, the arguments between members of the Food-4-Less group and the group of party-goers flared for at least 30 minutes. And, just before the shootings, defendant told Contreras not to worry, stating “I’ve got your back. I’ll handle this.” As he made those remarks, defendant revealed to Contreras the gun in his waistband. Then, just as a fight was about to break out, defendant began shooting.
From that evidence, a reasonable trier of fact could have inferred that defendant took the gun to the party and planned to use it. Defendant watched the arguments between the Food-4-Less group and the group of party-goers escalate for at least 30 minutes and, just as the arguments were about the erupt into physical confrontation, defendant showed Contreras his gun and stated he would “handle” the situation, evidence that shows he reflected on a course of action in response to the ongoing disputes at the party and chose to make a preemptive strike, presumably to protect the Food-4-Less group.
There was also reasonable and credible evidence from which a trier of fact could infer animosity and motive. Defendant argued with Ruiz twice at the Food-4-Less store, and the second time inside the store defendant “got in [Ruiz’s] face,” almost engaging in a fight. Moreover, another member of the Food-4-Less group, probably Troncoso, argued with Rodriguez shortly after the Food-4-Less group arrived at the party. Arguments then occurred between the Food-4-Less group and the group of party-goers for at least 30 minutes before shots were fired.
From that evidence, a reasonable trier of fact could have inferred animosity, i.e., defendant was angry with Ruiz based on the two incidents at the Food-4-Less store, and that he was also angered by Rodriguez for approaching the Food-4-Less group shortly after their arrival at the party and arguing with Troncoso, an argument that led to further tension and arguments between the two groups. And, Contreras testified that the Food-4-Less group appeared to be “in a defense mode” and that defendant told him not to worry, he would “handle it,” while showing Contreras the gun concealed under his shirt in his waistband. That evidence supports a reasonable inference of motive, i.e., defendant and the other members of the Food-4-Less group were engaged in an escalating conflict, and defendant shot as a result of that conflict.
When viewed under the substantial evidence standard discussed above, the record discloses reasonable and credible evidence supporting the finding that defendant premeditated and deliberated the murders of Rodriguez and Ruiz.
C. Jury Instructions on First Degree Murder
Defendant contends that even assuming, arguendo, there may have been sufficient evidence of premeditation, the trial court committed prejudicial error when it failed to advise the jury that any reasonable doubt about the degree of the murders must be resolved by finding that the murders were of the second degree. According to defendant, under section 1097 and People v. Dewberry (1959) 51 Cal.2d 548, the trial court had a sua sponte duty to instruct the jury to return verdicts of second degree murder if there was any reasonable doubt as to the degree of the murders.
Section 1097 provides: “When it appears that the defendant has committed a public offense, or attempted to commit a public offense, and there is reasonable ground of doubt in which of two or more degrees of the crime or attempted crime he is guilty, he can be convicted of the lowest of such degrees only.”
In People v. Dewberry, supra, 51 Cal.2d 548, 555-556, the Supreme Court stated, “It has been consistently held in this state since 1880 that when the evidence is sufficient to support a finding of guilt of both the offense charged and a lesser included offense, the jury must be instructed that if they entertain a reasonable doubt as to which offense has been committed, they must find the defendant guilty only of the lesser offense. [¶] Section 1097 presupposes that the jury has concluded that the defendant is guilty of some public offense embraced within the pleadings but is in doubt as to the degree of the offense proved. [¶] In every case the principle of reasonable doubt requires an acquittal of an offense when the prosecution has not met its burden of proof. Thus, whether reasonable doubt exists as between degrees of the same offense or as between the inclusive and included offense, the jury can only convict of the crime whose elements have been proved beyond a reasonable doubt. Narrowly construed, section 1097 at most illustrates the application of the [principle of reasonable doubt] in the case of crimes divided into degrees.” (Italics added.)
“Whether instructions are correct and adequate is determined by consideration of the entire charge to the jury.” (People v. Holt (1997) 15 Cal.4th 619, 677.) “We must determine how it is reasonably likely the jury understood the instruction, and whether the instruction, so understood, accurately reflects applicable law.” (People v. Raley (1992) 2 Cal.4th 870, 899.)
Defendant focuses on one of the instructions given by the trial court, CALCRIM No. 640, and argues that, by advising the jury to inform the trial court if it could not reach a unanimous verdict on first degree murder, the trial court violated the requirements of section 1097. According to defendant, informing jurors that they must declare a deadlock if they cannot agree on first degree murder, “does not convey the concept embodied in Penal Code section 1097 which informs the jury that if all members of the jury are in doubt as to the degree of the offense, such doubt must be resolved in the defendant’s favor. The instruction given... is an ‘all-or-nothing’-type instruction, while Penal Code section 1097 dictates an entirely different approach to the decision making process requiring acquittal of the greater degree when there is a consensus of doubt as to degree.”
CALCRIM No. 640 read as follows: “HOMOCIDE. [¶] For each count charging murder, You will be given verdict forms for guilty and not guilty of first degree murder and second degree murder. [¶] You may consider these different kinds of homicide in whatever order you wish, but I can accept a verdict of guilty of a lesser crime only if all of you have found the defendant not guilty of the greater crime. [¶] As with all the charges in this case, To return a verdict of guilty or not guilty on a count, you must all agree on that decision. [¶] Follow these directions before you give me any completed and signed, final verdict form(s). Return the unused verdict forms to me, unsigned. [¶] 1. If all of you agree that the People have proved beyond a reasonable doubt that the defendant is guilty of first degree murder, complete and sign that verdict form. Do not complete or sign any other verdict forms for that count. [¶] 2. If all of you cannot agree whether the defendant is guilty of first degree murder, inform me only that you cannot reach an agreement and do not complete or sign any verdict forms for that count. [¶] 3. If all of you agree that the defendant is not guilty of first degree murder but also agree that the defendant is guilty of second degree murder, complete and sign the form for not guilty of first degree murder and the form for guilty of second degree murder. Do not complete or sign any other verdict forms for that count. [¶] 4. If all of you agree that the defendant is not guilty of first degree murder but cannot agree whether the defendant is guilty of second degree murder, complete and sign the form for not guilty of first degree murder and inform me that you cannot reach further agreement. Do not complete or sign any other verdict forms for that count. [¶] 5. If all of you agree that the defendant is not guilty of first degree murder and not guilty of second degree murder, complete and sign the verdict forms for not guilty of both.” (Italics added.)
In this case, the jury was (i) properly instructed on the elements of first degree murder and of the different degrees of murder; (ii) advised that the prosecution had the burden of proving beyond a reasonable doubt each element of that offense; (iii) specifically advised that the prosecution had “the burden of proving beyond a reasonable doubt that the killing was first degree murder rather than a lesser crime”; and (iv) directed to return a verdict of not guilty of first degree murder if the prosecution did not prove beyond a reasonable doubt each such element. The jury was also advised that all the instruction were to be considered together. These instructions adequately advised the jury that it could not convict defendant of first degree murder if any of its members had a reasonable doubt as to the degree of the murder. In addition, CALCRIM No. 640 contains language suggesting that second degree murder is an alternative to first degree murder.
The trial court instructed the jury on first degree murder as follows: “If you decide that the defendant has committed murder, you must decide whether it is murder of the first or second degree. [¶] 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, intended to kill. The defendant acted with premeditation if he decided to kill before committing 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 or 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 jury thereafter returned unanimous verdicts of guilty of first degree murder on Counts 1 and 2, and the jury was then polled, which polling confirmed that each juror agreed to those verdicts. Given the instructions, those verdicts demonstrated that there was no reasonable doubt in the jurors’ minds as to the degree of the murders. That the jury acquitted defendant on the attempted murder charges shows that the jurors understood and applied the principle of reasonable doubt. Moreover, there is no indication in the record that one or more of the jurors ever entertained a reasonable doubt as to first degree murder. Thus, the prejudice of which defendant complains—that some or all of the jurors may have doubted defendant’s guilt on the first degree murder charges, but nevertheless continued to deliberate because of the instruction regarding a deadlock—is speculative. In view of the above, the trial court’s failure to instruct further on the requirements of section 1097 could not have prejudiced defendant because that section applies only in cases in which the jury has a reasonable doubt as to the degree of the crime committed, which was not the case here.
DISPOSITION
The judgments of conviction are affirmed.
We concur: ARMSTRONG, Acting P. J., KRIEGLER, J.
[¶]... [¶] All other murders are of the second degree. [¶] The People have the burden of proving beyond a reasonable doubt that the killing was first degree rather than a lesser crime. If the people have not met this burden, you must find the defendant not guilty of first degree murder.”