P. v. Perez

Filed 8/12/08 P. v. Perez CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of Riverside County. F. Paul Dickerson III, Judge. Affirmed with directions.

Sally P. Brajevich, 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, Assistant Attorney General, and Lynne McGinnis, Andrew Mestman and Scott C. Taylor, Deputy Attorneys General, for Plaintiff and Respondent.

On June 24, 2006, defendant was at his home in Hemet, drinking beer with his family and friends. That evening, defendant and his brother, Frank Castro, got into an argument because defendant disrespected their mother. Frank jumped on defendant and hit him in the face until other partygoers pulled him off of defendant. Defendant immediately retreated into the house, grabbed a .22-caliber rifle, emerged from the house, and shot Frank in the leg. Defendant then turned the gun on another friend at the party, Michael Schoullis, who was trying to get defendant to calm down, and shot him three times in the chest. Schoullis died instantly.

Defendant was found guilty of the second degree murder of Schoullis and assault with a semiautomatic firearm on Frank.

Defendant now contends:

1. Insufficient evidence supported his convictions of assault with a firearm and second degree murder as he acted in reasonable self-defense when he shot his brother Frank and Schoullis.

2. The trial court erred by failing to instruct the jury with the perfect self-defense instruction (Judicial Council of Cal. Crim. Jury Instns. (2006-2007), CALCRIM No. 505).

3. If this court rejects that defendant acted in perfect self-defense, defendants conviction of the second degree murder of Schoullis should be reduced to voluntary manslaughter.

4. The prosecutors reference to the Virginia Tech college shooting (which occurred one month prior to the trial) during closing argument constituted prosecutorial misconduct.

5. Several errors appear on the abstract of judgment.

We find no prejudicial error; however, we agree that the abstract of judgment must be modified to reflect the properly imposed sentence.

I.

PROCEDURAL BACKGROUND

A jury found defendant guilty of the second degree murder (Pen. Code,  187, subd. (a))^[1]of Schoullis, and found true the allegations that he personally used a firearm ( 12022.5, subd. (a), 12022.53, subd. (d)). In addition, the jury found defendant guilty of assault with a semiautomatic firearm ( 245, subd. (b)) against Frank, and the jury also found true the allegations that he personally inflicted great bodily injury ( 12022.7, subd. (a)), and personally used a firearm ( 12022.5, subd. (a)). The trial court sentenced defendant to a 40-year-to-life indeterminate sentence for the second degree murder, plus a 16-year determinate sentence on the assault with a semiautomatic firearm charge.

II

FACTUAL BACKGROUND

A. Prosecution

On June 24, 2006, Adel Castro lived at a house located at 40660 Stetson Avenue in Hemet, with her children, 21-year-old Frank Castro, Leticia Castro, and 26-year-old defendant.^[2] Michael Schoullis was Franks best friend and had lived with them for a period of time. Frank and defendant got along well.^[3]

On that day, Frank, defendant, Schoullis, and their three friends, Leslee,^[4]Anthony Lara, and Oscar Ponce, were in front of their house drinking beer. Adel was at home, but spent most of the day inside the house. In the early evening, Frank and defendant started slap-boxing^[5]with each other in front of the residence. At some point, they both fell to the ground and were wrestling with each other. Frank was on top of defendant and seemed to be getting the best of him. Eventually they both got up and were laughing.

Laras girlfriend, Priscilla,^[6]arrived in a car with another girl. Priscilla was looking for Lara because she suspected him of being with Leslee. Lara and Priscilla got into an argument in the driveway. Frank was trying to calm Priscilla down. Adel came out of the house because she heard the arguing. Adel told Priscilla to leave.

Defendant then asked Adel if she was causing problems. Frank turned to defendant and said, You fucked up; you got mom involved now.^[7] Defendant responded, Fuck mom. Frank got angry and told defendant to repeat what he had said, or to stop talking like that to their mom. Adel said something to defendant. Defendant told her, Shut the fuck up, or F[uck] you and mom.

Frank then rushed at defendant and started swinging hard at defendants face with his fists. They both fell to the ground in the driveway. Frank ended up on top of defendant and was swinging at him. Frank was winning the fight.

Lara, Schoullis, and Ponce pulled Frank off of defendant after about one minute. Frank got free and hit defendant again before the fight was finally over. Frank kept saying things to defendant, like he should have never been born and that he was a piece of crap.

Defendant got up, said Fuck it, and then went inside the house. Defendant had a crazy look on his face. Frank heard defendant say that he was going to come back. Believing that defendant was going to come back out with a weapon, Frank quickly went to his car and pulled a medium-sized knife from underneath the front seat. Frank stood in the driveway with the knife at his side; he did not hide it behind his back or rush inside to get defendant.

Adel followed defendant into the house. She saw defendant grab a .22-caliber rifle out of Franks bedroom. Adel ran outside of the house and told everyone to run. Defendant exited the house with the gun. Defendant pointed the gun up in the air and shot it. Frank told defendant, If youre going to bring that out, you might as well just use it.

Defendant then pointed the gun at Frank, and shot at him one or two times. Frank was hit in the leg. Frank fell to the ground and dropped the knife.

Defendant then turned and faced Schoullis. Schoullis was telling defendant to calm down. Defendant then shot Schoullis three times.^[8] Schoullis and defendant were about 10 feet apart. Defendant said something like, You too, Mike, prior to shooting him, but none of the witnesses were sure as to the exact words spoken by defendant.

Frank got up and ran toward defendant. Defendant tried to turn the gun back at Frank. Frank tackled defendant and punched him in the face. Frank tried to wrestle the gun away from defendant. Ponce was able to grab the gun. He ran inside and hid the gun between two mattresses in Franks room.

Ponce came back outside and pulled Frank off of defendant. Ponce and Frank got in Ponces car and they drove to the hospital. Frank was on crutches for three weeks and the bullet eventually worked itself out of his leg.

Ponce described Frank as a hothead and someone who liked to fight. Ponce indicated that Schoullis was never a threat to defendant; he was trying to calm him down. Frank believed that defendant had just lost it.

Riverside County Sheriffs Deputy Jerry Osterloh responded to a shots fired call from the Castro house. Deputy Osterloh arrived at the house around 9:55 p.m., and encountered Adel sitting outside the house. Adel was hysterical and crying. Schoullis was on the ground and had a bullet wound in his chest. He died within a matter of seconds as a result of the bullet wound.

Adel told Deputy Osterloh that defendant had been the shooter. Defendant emerged from the house, covered in dirt, bleeding from his nose, and had bruising on his face. While Deputy Osterloh was taking defendant to the patrol car, defendant fell and hit his face on the car. Defendant refused to get in the police car and had to be forced inside. Deputy Osterloh heard Adel say to defendant, Look what you did, look what you did to my son. Defendant responded, I aint going out like no punk. Lara also told Deputy Osterloh that defendant had shot Schoullis.

Defendant was transported by ambulance to the hospital. During the trip, defendant stopped breathing, but was revived. When defendant was at the hospital, he appeared intoxicated and a little unsteady on his feet. Defendant had a blood alcohol level of .21 percent approximately two hours after the shooting.

During a search of the Castro house, a semiautomatic .22-caliber rifle was found between two mattresses in Franks room. There were two magazines in the rifle; one was empty and the other had 10 rounds in it. A knife was also found.

Detective Jeff Buompensiero interviewed Adel at approximately 4:00 a.m. on June 25, 2006. Adel told Detective Buompensiero that when defendant came out of the house with the rifle, he said, Fuck you, mother-fuckers, fuck you guys, Ill show you. He also said, Fuck you too, to Schoullis. Schoullis was telling defendant to put down the gun and stop just prior to being shot.

Detective Gary LeClair interviewed defendant after he was released from the hospital. During the interview, defendant admitted that he drank every day. Defendant acknowledged that he went back into the house and grabbed the gun. No one followed after him. He went back outside, shot into the air, and then shot Frank, who was 10 to 15 feet from him. Frank did not rush at him until he had already shot him in the leg. Defendant shot Frank because he was pissed at him for hitting him in the face. He was not trying to kill him.

Defendant said that what he did was [f]ucking . . . stupid, but he did not regret shooting Frank in the leg. Defendant admitted that if he had just stayed in the house, nothing would have happened. Defendant never saw the knife. Defendant, when asked why he shot Frank, said, Just to show him youyou cant just fuckingfucking hit on me like Im just some fucking little punk or something.

Defendant initially said nothing about shooting Schoullis. He then stated that he never intended to intentionally shoot Schoullis. Defendant then told Detective LeClair that Schoullis was walking into the house. Defendant turned and shot him because he thought he was coming up behind him to hit him or something. Defendant also thought Schoullis may have been trying to take the gun. Defendant was fucking mad, when he shot both Frank and Schoullis. Defendant ended the interview by stating, I have to take responsibility for what I did.

B. Defense

Dr. Michael Kania, a clinical psychologist, testified that someone with a .21 percent blood alcohol level would have impaired judgment.

III

PERFECT SELF-DEFENSE

In arguments I and II, defendant contends that insufficient evidence supported his convictions of the second degree murder of Schoullis and the assault with a deadly weapon of Frank because the shooting and killing were done in reasonable self-defense. His convictions should be reversed.

A. Standard of Review for Sufficiency Claims

We often address claims of insufficient evidence, and the standard of review is settled. A reviewing court faced with such a claim determines 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. [Citations.] We examine the record to determine whether it shows evidence that is reasonable, credible and of solid value from which a rational trier of fact could find the defendant guilty beyond a reasonable doubt. [Citation.] Further, the appellate court presumes in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence. [Citation.] (People v. Moon (2005) 37 Cal.4th 1, 22.)

In deciding the sufficiency of the evidence, a reviewing court resolves neither credibility issues nor evidentiary conflicts. [Citation.] Resolution of conflicts and inconsistencies in the testimony is the exclusive province of the trier of fact. [Citation.] Moreover, unless the testimony is physically impossible or inherently improbable, testimony of a single witness is sufficient to support a conviction. [Citation.] (People v. Young (2005) 34 Cal.4th 1149, 1181.) Conflicts and even testimony which is subject to justifiable suspicion do not justify the reversal of a judgment, for it is the exclusive province of the trial judge or jury to determine the credibility of a witness and the truth or falsity of the facts upon which a determination depends. [Citation.] (People v. Guerra (2006) 37 Cal.4th 1067, 1141, quoting People v. Maury (2003) 30 Cal.4th 342, 403.)

B. Substantial Evidence Supported That Defendant Committed the Second Degree Murder of Schoullis, and Not Justifiable Homicide

Second degree murder is the unlawful killing of a human being with malice aforethought, but without the elements of willfulness, deliberation, and premeditation that would support a conviction of first degree murder. (People v. Robertson (2004) 34 Cal.4th 156, 164.) Malice may be express or implied. (Ibid.) Malice is express when there is manifested a deliberate intention unlawfully to take away the life of a fellow creature. ( 188.) It is implied when no considerable provocation appears, or when the circumstances attending the killing show an abandoned and malignant heart. (Ibid.) More specifically, malice is implied when the killing results from an intentional act, the natural consequences of which are dangerous to life, which act was deliberately performed by a person who knows that his conduct endangers the life of another and who acts with conscious disregard for life. [Citation.] [Citation.] (Ibid.)

In the instant case, the jury was fully instructed on the concepts of second degree murder. Prior to the shooting, Schoullis had little interaction with defendant. Defendant had been fighting with Frank, and immediately retreated into the house to obtain a gun. He came out and told everyone, Fuck you, mother-fuckers, fuck you guys, Ill show you. Defendant then aimed and fired at Frank. Schoullis tried to calm defendant. Defendant then said either, Fuck you too, or You too, Mike and then shot him in the chest three times.

Defendant himself stated that he was pissed off because Frank had made a fool of him by beating him up in front of everyone. Defendant was mad when he shot both Frank and Schoullis. Defendant intended to shoot Schoullis and shot at him three times. This was clearly an intentional act committed with express malice.

Furthermore, there was substantial evidence of implied malice. Defendant acted with a conscious disregard for life. Defendant shot in the direction of Schoullis with a .22-caliber rifle. Clearly, shooting directly at Schoullis endangered his life. Substantial evidence was presented to support the jurys verdict of second degree murder.

In contrast, there was no substantial evidence that this was a justifiable homicide. Self-defense, which is a complete defense, requires an actual and reasonable belief in the need to defend against an imminent danger of death or great bodily injury. (People v. Humphrey (1996) 13 Cal.4th 1073, 1082.) The California Supreme Court has explained self-defense as follows: For killing to be in self-defense, the defendant must actually and reasonably believe in the need to defend. [Citation.] If the belief subjectively exists but is objectively unreasonable, there is imperfect self-defense, i.e., the defendant is deemed to have acted without malice and cannot be convicted of murder, but can be convicted of manslaughter. [Citation.] To constitute perfect self-defense, i.e., to exonerate the person completely, the belief must also be objectively reasonable. [Citations.] As the Legislature has stated: [T]he circumstances must be sufficient to excite the fears of a reasonable person . . . . [Citations.] Moreover, for either perfect or imperfect self-defense, the fear must be of imminent harm. Fear of future harmno matter how great the fear and no matter how great the likelihood of the harmwill not suffice. The defendants fear must be of imminent danger to life or great bodily injury. [Citation.] (People v. Humphrey, supra, 13 Cal.4th at p. 1082, fn. omitted; People v. Hardin (2000) 85 Cal.App.4th 625, 629-630.)

By all accounts, Schoullis was trying to calm down defendant. Schoullis was not rushing at defendant. Even defendant told Detective LeClair that he was coming at him to take the gun, hit him, or something, not that he was coming after him to cause great bodily injury or death. It is undisputed that Schoullis did not possess a knife or other weapon. It simply was not objectively reasonable for defendant, who was armed with a .22-caliber rifle and had just shot someone, to think that he was facing imminent danger to his life from the unarmed Schoullis. Substantial evidence supported defendants conviction for the second degree murder of Schoullis.

C. Substantial Evidence Supported That Defendant Committed Assault With a Deadly Weapon Against Frank

The jury verdict of assault with a deadly weapon was also supported by the evidence. Section 245, subdivision (b) penalizes an assault upon the person of another with a semiautomatic firearm. [A]ssault requires only a general criminal intent and not a specific intent to cause injury. (People v. Williams (2001) 26 Cal.4th 779, 782.)

Here, defendant went inside the house after having been beaten by Frank to retrieve a gun. Defendant emerged and immediately shot Frank in the leg. Defendant clearly possessed the general intent to cause harm to Frank.

Furthermore, perfect self-defense was not shown by the evidence. Although Frank went to his car and got a knife when defendant retreated into the house, he did not go into the house after defendant, but rather, stood in the driveway with the knife at his side. When defendant emerged from the house, Frank did not rush at him and there is no evidence that defendant saw the knife in Franks hand. Defendant admitted that had he stayed inside the house, nothing would have happened to him. Further, although Frank had severely beaten defendant, and Frank was more skilled at fighting than defendant, the fight had ended and the other partygoers were keeping Frank away from defendant.

Defendant shot at Frank because he was embarrassed by Frank beating him up in front of their friends, and because he was mad at him. There was no evidence that at the time he shot Frank, he was in imminent danger of death or great bodily injury from Frank. No objectively reasonable person would believe that defendant had to shoot Frank in the leg to protect himself. As such, substantial evidence supported defendants conviction of assault with a semiautomatic firearm, and there was no substantial evidence of perfect self-defense.

IV

FAILURE TO INSTRUCT ON PERFECT SELF-DEFENSE

Defendant, in conjunction with arguments I and II, contends that despite the fact that he did not request instructions on perfect self-defense (CALCRIM No. 505),^[9]that the trial court erred by failing to sua sponte instruct the jury with reasonable self-defense instructions as to both the second degree murder of Schoullis and the assault with a semiautomatic firearm on Frank.

A defendant is entitled to have the court instruct on a defense theory if it is supported by substantial evidence, i.e., if a reasonable jury could conclude the particular facts underlying the instruction existed. [Citations.] (People v. Sullivan (1989) 215 Cal.App.3d 1446, 1450.) A trial court must instruct on a defense only if (1) it appears the defendant is relying upon the defense, or (2) there is both substantial evidence to support the defense and the defense is not inconsistent with the defendants theory of the case. (People v. Breverman (1998) 19 Cal.4th 142, 157 (Breverman).)

A defendants testimony that he believed in the necessity of defending himself is not a prerequisite for the giving of an instruction on self-defense, so long as substantial evidence from other sources may permit that inference. (People v. De Leon (1992) 10 Cal.App.4th 815, 824.) [T]he concepts of unreasonable self-defense and perfect self-defense are independent, and the giving of instructions on the former does not compel instructions on the latter theory of defense. (People v. Hill (2005) 131 Cal.App.4th 1089, 1103.) A trial courts failure to instruct on perfect self-defense will be upheld on appeal where the record contains no substantial evidence to support the instructions. (People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1270.)

As set forth in section III, ante, there simply was no substantial evidence of perfect self-defense. Despite the fact that defendant had been beaten by Frank, the fight was essentially over when defendant decided to shoot him. At the time of the shooting, defendant was not facing imminent danger to his life. Defendant himself admitted that he only shot at Frank and Schoullis because he was mad.

The California Supreme Court has assumed, without deciding, that the failure to instruct on a defense is subject to the harmless-beyond-a-reasonable-doubt standard of Chapman v. California (1967) 386 U.S. 18, 24 [87 S. Ct. 824, 17 L.Ed.2d 705]. Error in failing to instruct the jury . . . is harmless when the jury necessarily decides the factual questions posed by the omitted instructions adversely to defendant under other properly given instructions. [Citation.] (People v. Lewis (2001) 25 Cal.4th 610, 646.)

Here, the jury was fully instructed on the concept of unreasonable or imperfect self-defense. Such determination was identical to the factual determination it would have to make if it had been instructed on perfect self-defense. (See People v. Viramontes (2001) 93 Cal.App.4th 1256, 1262.) The jury here concluded imperfect self-defense did not apply to this case. As such, the jury necessarily resolved, although in a different setting, the same factual question[s] that would have been presented by the missing instruction[s] [citation], in a manner adverse to defendant. We conclude, therefore, that [any] instructional error was harmless under any standard of prejudice. (People v. Wright (2006) 40 Cal.4th 81, 99, fn. omitted.) As such, it is inconceivable that the jury would have found that defendant reasonably believed in the need to protect himself, when they rejected that he had an unreasonable belief in the need to shoot Frank and Schoullis because he was facing imminent danger or great bodily injury.

Finally, we have already concluded that there was substantial evidence that supported defendants convictions of second degree murder and assault with a semiautomatic firearm. (See section III, ante.) Any further instruction on self-defense would not have affected the jurys verdict.

V

DEFENDANTS SECOND DEGREE MURDER CONVICTION SHOULD BE REDUCED TO VOLUNTARY MANSLAUGHTER

Defendant contends in arguments III and IV that there was insufficient evidence presented to support his conviction for the second degree murder of Schoullis because the evidence only supported a conviction for voluntary manslaughter on a theory either of imperfect self-defense and/or heat of passion or sudden quarrel.

We disagree that the evidence only supported a conviction of voluntary manslaughter. There was no showing that the shooting of Schoullis was done in a heat of passion or imperfect self-defense.

An unlawful killing upon a sudden quarrel or heat of passion is voluntary manslaughter. ( 192, subd. (a).) To overcome the presumption of malice and avoid a murder conviction, provocation and heat of passion must be affirmatively demonstrated. [Citations.] (People v. Steele (2002) 27 Cal.4th 1230, 1252.)

Heat of passion has both an objective and a subjective component. The defendant must actually, subjectively, kill under the heat of passion. In addition, the heat of passion must be such as would naturally be aroused in the mind of an ordinarily reasonable person under the given facts and circumstances. (People v. Steele, supra, 27 Cal.4th at p. 1252.) Heat of passion arises when at the time of the killing, the reason of the accused was obscured or disturbed by passion to such an extent as would cause the ordinarily reasonable person of average disposition to act rashly and without deliberation and reflection, and from such passion rather than from judgment. (People v. Barton (1995) 12 Cal.4th 186, 201.) Initially, we note that the jury was fully instructed on voluntary manslaughter under the theory of heat of passion or quarrel. As the verdict indicates, although defendant presented evidence to suggest that he acted under a sudden quarrel or heat of passion, the jury rejected defendants evidence and found that he acted with a deliberate intent to kill. One court has observed: Even if defendants testimony provided some evidence of provocation for the jury to consider, it remains the jurys exclusive province to decide whether the particular facts and circumstances are sufficient to create a reasonable doubt as to whether the defendant acted under a heat of passion. [Citations.] Here, the jury was properly instructed on voluntary manslaughter and heat of passion or sudden quarrel. They found malice, and we conclude the evidence is sufficient to support the finding. (People v. Bloyd (1987) 43 Cal.3d 333, 350.)

Here, as set forth in argument III, ante, substantial evidence supported defendants conviction for second degree murder. Although defendant was clearly angry, his anger was provoked by Frank, not Schoullis. There simply was no evidence that Schoullis did anything to provoke or anger defendant. Furthermore, defendant himself stated that he did not act rashly or impulsively. He shot at Schoullis because he thought Schoullis was going to hit him or take the gun away. Hence, there was no substantial evidence of the subjective component of the heat of passion/sudden quarrel theory of voluntary manslaughter.

Furthermore, no objectively reasonable person would have shot Schoullis in a heat of passion or quarrel when it was clear he was trying to defuse the situation.

Defendants reliance on Breverman is of no moment. In Breverman, a group of boys, armed with baseball bats, destroyed the defendants car and then rushed at him. Fearing for his life, the defendant shot into the crowd, killing one of them. (Breverman, supra, 19 Cal.4th at pp. 148-151.)

Initially, the jury was not instructed in Breverman on the heat of passion/sudden quarrel theory of voluntary manslaughter, unlike the jury here. (Breverman, supra, 19 Cal.4th at p. 153.) Furthermore, in Breverman, the defendant was being attacked en masse by the group of boys, and it prompted him to shoot at the crowd. Here, there is absolutely no evidence that Schoullis personally provoked defendant.

Although defendant claims Schoullis was Franks accomplice, Schoullis had tried to stop Frank from beating defendant. Again, no reasonable person would act in the heat of passion knowing that Schoullis had tried to break up the fight and was trying to calm defendant down. The jury rejected that this was voluntary manslaughter based on the heat of passion/sudden quarrel theory. Such determination was proper.

We also reject that defendant was only guilty of voluntary manslaughter on a theory of unreasonable self-defense.

One who kills another person because he actually, but unreasonably, believed in the need to defend himself from imminent death or great bodily injury is deemed to have acted without malice. (People v. McCoy (2001) 25 Cal.4th 1111, 1116; In re Christian S. (1994) 7 Cal.4th 768, 783.) Under such an unreasonable self-defense theory, the crime committed is manslaughter, not murder. (People v. McCoy, supra, at p. 1116.)

Once again, the jury was fully instructed on imperfect self-defense and rejected that it was present. Defendant himself believed that Schoullis was approaching him to either hit him or take the gun from him. Defendant did not unreasonably believe that he was facing imminent harm or great bodily injury from Schoullis. He admitted he shot Schoullis because he was mad. The jury properly rejected that the murder of Schoullis only constituted voluntary manslaughter.

VI

PROSECUTORIAL MISCONDUCT

Defendant contends that the prosecutors reference to the Virginia Tech college shooting (which had occurred just one month prior to trial) during closing argument constituted misconduct.

A. Additional Background

During defense counsels closing argument, she argued the witnesses testified that defendant looked like he had lost it, and that was the key to the instant case. Defendant shot at Frank and Schoullis because he did not know what he was doing.

In rebuttal, in response to defense counsels argument that defendant had lost it, the prosecution advised the jurors: She made comments to the statement by Ms. Castro, that the defendant just lost it. Thats a lay person term. Youre not going to find a definition in the jury instructions that says, If you think he, quote, lost it, that that somehow is a defense of anybody in a circumstance where people are being shot and killed are going to describe the killer as someone who lost it. [] If you went to the Virginia Tech massacre and polled some people who survived that, and said, What did he look like, theyre going to probably say, He looked like hed lost it, hed gone mad. And that guy was submitting videotapes, predicting everything he was going to do, planning it out. [] Losing it is just some phrase thatits just a phrase. The definition, the important consideration is, did he think about what he was going to do. He threatened to get a weapon and come back. He went and got it, and he came back, and he shot two people. There was no objection by defense counsel.

B. Standard of Review

A prosecutors conduct violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.) It violates the United States Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Morales (2001) 25 Cal.4th 34, 44.) To establish prosecutorial misconduct, a defendant need not show that the prosecutor acted in bad faith, but he must show that his right to a fair trial was prejudiced. (People v. Nguyen (1995) 40 Cal.App.4th 28, 35.) In either case, only misconduct that prejudices a defendant requires reversal [citation], and a timely admonition from the court generally cures any harm. [Citation.] (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)

C. Analysis

Generally, a claim of prosecutorial misconduct is not reviewable on appeal unless the defendant makes a timely objection and asks the trial court to admonish the jury to disregard the prosecutors improper remarks. [Citation.] In the absence of an objection, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct. [Citation.] (People v. Tafoya (2007) 42 Cal.4th 147, 176, quoting People v. Earp (1999) 20 Cal.4th 826, 858.)

We find that defendant waived any claim of prosecutorial misconduct based on these arguments by failing to object to the argument in the lower court. Had the trial court been alerted to the fact that defendant found the statements constituted misconduct, it could have admonished the jury to disregard the statements or that this was just argument that should not be considered in the jurys determination of guilt.

In order to explain the lack of objection, defendant contends that even if the trial court had admonished the jury to disregard the comment by the prosecutor, it was so prejudicial that any admonition would have been useless. We disagree. As will be set forth post, the prosecutors statement was not overly inflammatory and the evidence before the jury was not prejudicial. An admonition to the jury would have cured any potential prejudice. (People v. Stansbury (1993) 4 Cal.4th 1017, 1056.)

We also conclude that the prosecutors comments did not constitute misconduct. The prosecutor was trying to explain a concept of lost it to the jury. The prosecutor did not set forth details of the Virginia Tech shooting, he did not argue that defendant was like the shooter in that mass killing, and did not urge the jury to find defendant guilty based on sentiment for the victims. The prosecution was attempting to explain to the jury a possible determination on what lost it meant in response to argument by defendant that several witnesses stated that defendant appeared to have this expression on his face when he committed the shooting. This was not misconduct.

Even if we were to consider that the instant comment constituted misconduct, we may not reverse the judgment if it is not reasonably probable that a result more favorable to the defendant would have been reached in its absence. [Citation.] (People v. Barnett (1998) 17 Cal.4th 1044, 1133.)

Despite defendants claim that the prosecutors statements undoubtedly raised images projected on CNN news of the heartbreak and torment caused by the shooter, the jury returned a verdict of the lesser offenses of second degree murder and assault with a firearm. Furthermore, defendants argument is purely speculative as to what the jurors had been exposed to in regards to the Virginia Tech shooting. He presumes that they watched the CNN news coverage, but there is nothing in the record to support such a claim.

Moreover, the evidence of defendants guilt was overwhelming. (See section III, ante.) These comments by the prosecutor in the face of the clear intentional shootings by defendant did not render his trial unfair. We find no prejudicial misconduct.^[10]

VII

CORRECTION OF ABSTRACT OF JUDGMENT

Defendant requests that this court order that the abstract of judgment be modified. The People agree.

First, defendant was sentenced on count 1 to a 40-year-to-life indeterminate sentence and was additionally sentenced to a 16-year determinate term on count 3. The abstract of judgment erroneously states that defendant was sentenced to a 56-year-to-life sentence. The abstract of judgment should be modified to reflect a 40-year-to-life indeterminate sentence, plus a 16-year determinate sentence. (People v. Mitchell (2001) 26 Cal.4th181, 186-187 [an appellate court can correct clerical errors in the abstract of judgment].)

Additionally, defendant contends that the abstract of judgment should be corrected to delete the stayed section 1192.7, subdivision (c)(8) sentence, because it is duplicative. Since the People concede the error , we shall order that reference be stricken from the abstract of judgment.

VIII

DISPOSITION

The trial court is directed to amend the abstract of judgment to reflect the modifications ordered herein and to send copies of the amended abstract of judgment to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

/s/ Richli

J.

We concur:

/s/ Hollenhorst

Acting P.J.

/s/ Miller

J.

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^[1] All further statutory references are to the Penal Code unless otherwise specified.

^[2] Frank was 5 feet 4 inches tall and weighed 145 pounds. Defendant was 5 feet 6 inches tall and weighed 230 pounds.

^[3] Frank was a member of the Army National Guard and had served six months in Iraq in 2005. Frank had been trained in hand-to-hand combat and was trained in knife use in combat. He also was involved in cage fighting.

^[4] Leslees last name does not appear in the record.

^[5] Slap-boxing was described as each trying to slap the other to see who was faster, but was not aggressive fighting.

^[6] Priscillas last names does not appear in the record.

^[7] Frank was blaming defendant for the fight because he had told Priscilla that Lara was with another girl.

^[8] Adel did not recall telling the police that Schoullis was saying, Just put it down, stop it, dude, what are you doing? Thats your mom and your brother. Calm down, its your brother.

^[9] CALCRIM No. 505 provides, in pertinent part, as follows: The defendant is not guilty of (murder/ [or] manslaughter/ attempted murder/ [or] attempted voluntary manslaughter) if (he/she) was justified in (killing/attempting to kill) someone in (self-defense/ [or] defense of another). The defendant acted in lawful (self-defense/ [or] defense of another) if: [] 1. The defendant reasonably believed that (he/she/ . . .) was in imminent danger of being killed or suffering great bodily injury . . . ; [] 2. The defendant reasonably believed that the immediate use of deadly force was necessary to defend against that danger; [] AND [] 3. The defendant used no more force than was reasonably necessary to defend against that danger. [] Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be. The defendant must have believed there was imminent danger of great bodily injury to (himself/herself/ [or] someone else). Defendants belief must have been reasonable and (he/she) must have acted only because of that belief. The defendant is only entitled to use that amount of force that a reasonable person would believe is necessary in the same situation. If the defendant used more force than was reasonable, the [attempted] killing was not justified. [] When deciding whether the defendants beliefs were reasonable, consider all the circumstances as they were known to and appeared to the defendant and consider what a reasonable person in a similar situation with similar knowledge would have believed. If the defendants beliefs were reasonable, the danger does not need to have actually existed. [] . . . [] The People have the burden of proving beyond a reasonable doubt that the [attempted] killing was not justified. If the People have not met this burden, you must find the defendant not guilty of (murder/ [or] manslaughter/ . . .).

^[10] Defendant additionally states that there was a pattern of misconduct because of the instant misconduct and because the prosecutor had committed an earlier discovery violation. Since we find no misconduct occurred, there was no pattern of misconduct.