P. v. Campos

Filed 1/21/09 P. v. Campos CA2/2

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION TWO

APPEAL from a judgment of the Superior Court of Los Angeles County. John S. Fisher, Judge. Affirmed.

Verna Wefald, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Lawrence M. Daniels and Eric E. Reynolds, Deputy Attorneys General, for Plaintiff and Respondent.

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A jury convicted Alvaro Campos (defendant) of one count of first degree murder in violation of Penal Code section 187, subdivision (a).[1] The jury found that defendant personally used and intentionally discharged a firearm, causing death, under section 12022.53, subdivision (d). The trial court sentenced defendant to 50 years to life in prison. The sentence consisted of 25 years to life for the murder and a consecutive term of 25 years to life for the firearm enhancement.

Defendant appeals on the grounds that: (1) permitting the prosecutor to impeach him with a prior conviction for carrying a concealed weapon violated due process because the crime did not involve moral turpitude; (2) defendants due process right was violated when the trial court permitted the prosecutor to impeach him with a picture of the tattoo on his neck; (3) the courts refusal to instruct on imperfect self-defense violated defendants due process right to present a complete defense; and (4) the evidence of first degree murder is insufficient.

FACTS

Prosecution Evidence

Sarina Navarro (Navarro) began having a relationship with defendant in November 2005 while she was still living with the victim, Mauricio Fuentes (Fuentes). Navarro and Fuentes had been together for several years. A few months after she met defendant, Navarro moved into the apartment he shared with his mother and sister, which was not far from Fuentess apartment. After approximately two months, Navarro moved back in with Fuentes. Approximately two weeks later, she moved back to defendants apartment. Both Fuentes and defendant knew Navarro was involved with the other, but they never had any physical altercations. At the beginning of 2006, Navarro learned that she was pregnant. She did not know who the father was. Both men knew she was pregnant.

Navarro left defendants apartment while he was at work to move back with Fuentes on April 27, 2006. She took $200 with her and left defendant a note acknowledging that she took the money. That evening, she heard a knock at the door of Fuentess second-floor apartment and saw that it was defendant. Navarro told Fuentes not to open the door. Fuentes said he wanted to hear what defendant had to say, and he opened the door. Defendant asked Navarro for the money, and she went to retrieve it. Navarro gave defendant $160 and told him she would give him the other $40 at the end of the week. Defendant tried to slap her as she handed him the money, but he only slightly touched her forehead above her left cheek. Defendant then walked away. Fuentes said to defendant that instead of hitting Navarro, why dont you hit me? The two men argued as defendant walked away. Both called each other names, including bitch.

Defendant walked down the stairs to the courtyard below. He began to walk out the small corridor leading to a back gate, but he turned around and faced Fuentes while pulling out a gun. He walked back up the stairs while working the gun. Fuentes said, If youre going to shoot me, shoot me. Navarro recognized defendants gun as one she had seen in a backpack in defendants closet. Fuentes did not have a gun and held nothing in his hands. He did not reach for his waistband at any time.

As defendant climbed the stairs, Fuentes said, Put the gun down and fight like a man. When defendant was almost at the top of the stairs, he pointed the gun at Fuentess forehead and fired. Fuentes turned around, grabbed his head, and then fell to the ground. Navarro ran inside Fuentess apartment and closed the door. Through the peephole she saw defendant stand over Fuentes and shoot him while Fuentes lay on the ground. After defendant walked away, Navarro ran to Fuentes. She saw that he had a wound in the back of his head.

Three of Fuentess neighbors testified at defendants trial. Jose Villalobos (Villalobos) heard arguing outside his ground floor window and looked outside to see defendant standing in the courtyard arguing with someone on the second floor, whom he could not see. Defendant walked away, but he returned to the courtyard and walked toward the stairs a couple of minutes later. He pulled out a gun and began working the slide. Villalobos closed his door and, approximately 15 seconds later, heard a gunshot. He then heard about four shots with a pause between each shot. After a few minutes he looked out and saw the victim lying on the second floor walkway and being held by a female.

Maria Rodriguez (Rodriguez) lived on the second floor and heard an argument outside at approximately 6:30 p.m. She saw Fuentes and Navarro upstairs arguing with defendant, who was standing downstairs. Defendant eventually turned around and walked away. Fuentes and Navarro stayed on the second floor landing. Rodriguez then heard Navarro yell, Anthony, what are you going to do? Rodriguez saw defendant carrying a gun while walking toward the stairs and sliding the top part of the gun. Fuentes raised his hands and said, Are you going to shoot me? Defendant walked up the stairs and shot Fuentes. Fuentes fell back, then got on his knees and covered his head. Defendant continued to shoot at Fuentes while walking around him. When he stopped shooting, defendant walked down the stairs and out toward the parking area.

Tiffany Rosales (Rosales) also lived on the second floor. She heard loud shouting and looked outside to see defendant walking on the ground level toward the stairs. Rosales saw Fuentes standing at the top of the stairs. Defendant walked up the stairs and pulled out a gun. Rosales closed her blinds and heard shots. When Rosales looked out again, Fuentes was on the ground and defendant was standing over him with the gun pointing at Fuentes. She closed her blinds when defendant looked toward her. When she looked again, she saw defendant walking quickly down the stairs.

Fuentess autopsy revealed he died of multiple gunshot wounds to the head. There were three woundsone entry wound was in the front and two were in the back. The two wounds on the back of the head had stippling around them, which indicated the gun was fired at Fuentess head from a distance of no more than two and a half feet.

Officer Paul Ricchiazzi of the Los Angeles Police Department responded to the apartment complex. When he arrived on the second floor landing, he saw both the victim and a crying female. The female gave defendants name to police and pointed in the direction he had gone. Officer Ricchiazzi went to defendants apartment and conducted a search, but no one was home. Defendant and his mother eventually arrived carrying food. Defendant was arrested. The gun used in the shooting, a .22-caliber semiautomatic, was later recovered in an unrelated narcotics investigation.

Officer Christopher Chadbourne transported defendant to jail after his arrest. Defendant began to speak to the officer despite not being asked any questions. Defendant said he went to Fuentess apartment to get the money Navarro had taken and to slap her. He took a weapon because he knew Fuentes was much larger than he. When he got his money, he slapped Navarro, called her a bitch, and left. Fuentes asked him why he had slapped Navarro, and Fuentes called defendant names, such as bitch. They did not fight physically. Fuentes said to defendant, Where are you going, bitch? and raised his fist at him. Defendant told Fuentes, You dont want to do that, and raised his shirt to show he had a gun. Fuentes said, You need a gun? Youre a bitch. Pull that shit out and shoot me. Fuentes came toward defendant and held up his fist. Defendant pulled out his gun and cocked it.

When Fuentes came closer, defendant raised the gun to shoot. He pulled the trigger, but the gun did not fire. Defendant cocked the gun again, and it failed to fire. Defendant saw that the clip was out too far. He removed it, slammed it back in the gun, and cocked the gun again. He then pointed it at Fuentess face and shot him. Fuentes turned and began to run away. Defendant shot him again in the back of the head, and Fuentes fell to the ground. He was not moving, but defendant shot him a third time in the back of the head. Defendant said he shot Fuentes seven times, and each time the gun malfunctioned. He was obliged to fix it again before the next shot.

Navarro had some contact with defendant while he was in jail. He apologized to her. He asked her to change her story to police, but Navarro refused.

Defense Evidence

Defendant testified that Navarro moved in with him shortly after they began dating in October 2005. He knew about her relationship with Fuentes. In November 2005, he heard knocking on his door at night and got out of bed. He looked out of the window and saw Fuentes sitting in a van across the parking lot, facing defendants apartment. Defendant was afraid Fuentes would do something to him. Fuentes pulled out a gun and pointed it at defendants window as he drove away. On another occasion, defendant was walking down the street when he saw Fuentes. Fuentes pulled out a gun. Defendant did not mention these incidents to Navarro, and he did not call the police.

Navarro moved in and out of defendants apartment three or four times. Defendant took her back because he loved her. In January 2006, Navarro told defendant she was pregnant with his baby. Navarro moved back to defendants apartment at the end of January 2006.

Navarro telephoned defendant at work on the day before the incident to tell him about an argument she had with his sister. Defendant rushed home to make sure his sister was all right. His sister was taken to the hospital because she had tried to commit suicide. When defendant returned from work the next day, Navarro had left him a note saying she had left and taken some money for the baby. The note broke defendants heart.

Defendant went to Fuentess apartment and took a gun to protect himself because of the previous incidents when Fuentes had pulled a gun on him. Defendant wanted to get his money, slap Navarro, and leave. He did not intend to use the gun on anyone. When defendant knocked on the door, Fuentes answered. Defendant saw that Fuentes had hickeys on his neck. When defendant asked to see Navarro, Fuentes said she was sleeping. Defendant told him to wake her up.

Navarro came to the front door, and defendant saw that she had hickeys on her neck also. He felt heartbroken, angry, and jealous. Defendant asked for his money, and when Navarro handed it to him, he slapped her. He turned to leave and Fuentes asked him why he had to slap Navarro. Fuentes said defendant should hit him instead. Defendant continued to walk away and Fuentes walked toward him. Fuentes suggested they go to fight in the parking lot. Defendant said You dont want to do that. Fuentes told defendant that he and his friends would take [him] out. Defendant was frightened and he thought he would die right there.

Defendant left and walked down the stairs. Fuentes shouted at him, calling him a bitch. The two men argued and shouted at each other. Defendant was at the bottom of the stairs when he stopped and turned around because he heard Navarro call his name. Defendant could not hear what she was saying because Fuentes kept calling him names, such as bitch. Everything became too much for him and he lost his mind. Defendant pulled out his gun, and Fuentes told him to pull the trigger and shoot. Defendant began walking up the stairs. He shot the first time before he reached the second floor. The first shot hit Fuentes in the forehead. Fuentes turned and then collapsed. Defendant kept shooting at Fuentes. Defendant kept hearing Fuentess voice going through his head. He shot seven times and hit Fuentes twice in the back of the head. When he stopped shooting, he felt dazed. He walked back to his apartment. He gave the gun to someone on the way back to his apartment.

Defendant said that he recalled talking to Officer Chadbourne. He said that everything Officer Chadbourne said was true.

DISCUSSION

I. Impeachment With Felony Conviction

A. Defendants Argument

Defendant contends the trial court abused its discretion and violated his right to due process by allowing the prosecutor to impeach him with his prior conviction for carrying a concealed weapon. Defendant asserts that the crime is not one of moral turpitude, since nothing in section 12031, subdivision (a)(1) involves dishonesty or shows a defendants readiness to do evil. Defendant maintains he was severely prejudiced. According to defendant, it is reasonably probable he would not have been convicted of first degree murder absent the error, since his case was a classic crime of passion.

B. Relevant Authority

Section 12031, subdivision (a)(1) provides: A person is guilty of carrying a loaded firearm when he or she carries a loaded firearm on his or her person or in a vehicle while in any public place or on any public street in an incorporated city or in any public place or on any public street in a prohibited area of unincorporated territory.

Subject to Evidence Code section 352,[2]any felony conviction necessarily involving moral turpitude may be used to impeach a witness at a criminal proceeding. (Cal. Const., art. I, 28, subd. (f); People v. Castro (1985) 38 Cal.3d 301, 306, 313-317 (Castro).) The admissibility of such a conviction rests with the trial courts discretion. (Castro, supra, at pp. 316-317;see also People v. Maestas (2005) 132 Cal.App.4th 1552, 1556 (Maestas).)

As our Supreme Court recently explained, a trial courts broad latitude in this respect will not be upset on appeal absent a showing of abuse of discretion. (People v. Robinson (2005) 37 Cal.4th 592, 626.) If a felony conviction does not necessarily involve moral turpitude, it is inadmissible for impeachment as a matter of law. [Citation.] Whether an offense constitutes a crime of moral turpitude is a question of law. (Maestas, supra, 132 Cal.App.4th at p. 1556.) According to Castro, a witness may be impeached with a prior felony conviction only if the least adjudicated elements of the conviction involve moral turpitude, i.e., crimes in which dishonesty is an element, or which indicate a general readiness to do evil. (Castro, supra, 38 Cal.3d at p. 317; Maestas, supra, at p. 1556; People v. Rivera (2003) 107 Cal.App.4th 1374, 1380; People v. Feaster (2002) 102 Cal.App.4th 1084, 1091.)

C. Harmless Error

Castro declined to list those offenses that do or do not involve moral turpitude. (Castro, supra, 38 Cal.3d at p. 314.) Instead, it held that a witness prior conviction should only be admissible for impeachment if the least adjudicated elements of the conviction necessarily involve moral turpitude. (Id. at p. 317.) This means only that the court cannot go behind the conviction and take evidence on or consider the facts and circumstances of the particular offense. Instead, the court must look to the statutory definition of the particular crime and only if the least adjudicated elements of the crime necessarily involve moral turpitude is the prior conviction admissible for impeachment purposes. [Citation.] (People v. Mansfield (1988) 200 Cal.App.3d 82, 87.)

The least adjudicated elements of a violation of section 12021, subdivision (a)(1) are: (1) the defendant carried a loaded firearm on his person or in a vehicle, (2) the defendant knew that he was carrying a firearm, and (3) at that time the defendant was in a public place or on a public street. (See CALCRIM No. 2530.) We believe that a readiness to do evil cannot necessarily be inferred from the least adjudicated elements of this offense. A person may carry a firearm for self-defense, for example. Therefore, defendants section 12031 conviction did not involve moral turpitude, and was inadmissible as impeachment.

Respondent disagrees and cites People v. Garrett (1987) 195 Cal.App.3d 795 (Garrett) in support of its position. In that case, the defendant argued that his prior conviction for conspiracy to possess an unregistered firearm was inadmissible because it was not necessarily a crime of moral turpitude. (Id. at p. 798.) The court disagreed, noting that defendant had been convicted of violating 18 United States Code section 371 and 26 United States Code section 5861(d) by possessing a sawed-off shotgun, an illegal weapon. (Garrett, supra, at p. 798.) The elements of the crime required proof that defendant and another agreed to possess unregistered firearms and that one of the two did an overt act in furtherance of the agreement. (Id. at p. 799.) The court observed that firearm was defined for purposes of the chapter in question in 26 United States Code section 5845. This section listed various modified or altered guns, and the legislative history of the act indicated that Congress intended to promote law and order by proscribing original and converted military-type weapons as well as improvised types of similar devices and weapons of crime, violence and destruction. (Garrett, supra, at p. 799.) The court stated that [t]he weapons required to be registered under 26 United States Code sections 5845 and 5861 are insidious instruments normally used for criminal purposes, and [t]heir mere possession in violation of the statute is indicative of a readiness to do evil. (Garrett, at p. 800.)

Garrett is not analogous to the instant case. The statute defendant violated in his prior conviction ( 12031, subd. (a)(1)) did not define firearms in the manner set out in Garrett, which was key in finding a readiness to do evil in that case. The emphasis in section 12031, subdivision (a)(1) appears to be on the word loaded, since that is the only term in that section that is defined elsewhere in the statute. (See 12031, subd. (g).)[3] Defendant was not convicted of violating section 12020, which makes it a felony to possess certain weapons, such as short-barreled shotguns. ( 12020, subd. (a)(1).) Defendant was not convicted of possession of a firearm by a felon, either. In sum, the statute defendant violated was not necessarily a crime of moral turpitude.

We conclude, however, that allowing the prosecutor to impeach defendant with this conviction was harmless error, since it is not reasonably probable he would have received a more favorable result if the evidence had been excluded. (Evid. Code, 353; People v. Watson (1956) 46 Cal.2d 818, 836 (Watson); see also Castro, supra, 38 Cal.3d at p. 319 [error in admitting prior conviction was harmless under Watson standard].)

At the outset, since defendant was shown to have carried a concealed weapon during the period when he committed the instant crime, the evidence was not unduly inflammatory. Defendants prior offense was not a heinous crime, and, as discussed infra, there was overwhelming evidence of defendants guilt of first degree murder. The prosecutor made no mention of the prior conviction during closing argument. The trial court instructed the jury that the prior conviction was admissible solely for the purpose of evaluating defendants credibility, and the conviction did not necessarily impair his credibility. (CALCRIM No. 316.) Thus, any error was harmless.

II. Evidence of Defendants Tattoo

A. Defendants Argument

Defendant argues that his tattoo stating, Fuck a bitch had no tendency to prove that defendant was lying about being provoked by Fuentess name calling and baiting. He claims the trial court abused its discretion and violated due process by admitting the tattoo, and defendants trial was fundamentally unfair as a result.

B. Relevant Authority

We apply the abuse of discretion standard to any ruling by a trial court on the admissibility of evidence, including one that turns on the relative probativeness and prejudice of the evidence in question. (People v. Waidla (2000) 22 Cal.4th 690, 724.)

C. Proceedings Below

Prior to defendant taking the stand, defense counsel informed the trial court that defendant had a tattoo on the back of his neck that read, Fuck a bitch. She asked that the tattoo not be shown to the jury under Evidence Code section 352. The prosecutor responded that he had intended to cross-examine on this issue because the tattoo was relevant to the issues of provocation, defendants attitudes, the willfulness of his conduct, and to one of the reasons defendant shot Fuentes. The trial court stated it would wait to hear defendants testimony before deciding.

After defendants testimony, the trial court ruled in the prosecutions favor. The trial court stated, Well, the name calling was bitch. Your client referred to that several times and I think clearly without any question in my mind the defendants mental state is the issue in this case. And both sides have a right, one, to bring out prior incidents from your clients point of view of threats and possession of guns by the alleged victim here. And now hes claiming ‑‑ the jury will decide ‑‑ but he is claiming that he was more than offended by the word bitch and name calling, the verbal things that were coming out of the alleged victims mouth. And it seems to me the other side now has a right to cross-examine his credibility on why he was offended by the word bitch when hes got it on his ‑‑ on the back of his neck. Without a doubt. I mean, it would be absurd not to let that in in my opinion.

D. Evidence Properly Admitted

Evidence Code section 210 defines relevant evidence as that having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. We believe the evidence of defendants tattoo was relevant to and probative on the issue of the provocation in the instant case, and furthermore, that its probative value outweighed any prejudicial effect.

Defendant said that, after he got his money back from Navarro and was walking away, Fuentes kept calling him a bitch, and defendant called Fuentes a bitch in return. Defendant heard Navarro say his name, and when he turned back to look at her he lost [his] mind right there, right then and there, and it was too much for [him]. Defendant shot Fuentes seven times while he kept hearing his voice in [his] head. Thus, defendant blamed the name-calling by Fuentes, specifically the word bitch, for his losing his mind and shooting Fuentes. By examining defendant regarding the tattoo that he wore on his neck, the prosecutor was able to show that defendant was accustomed to using the word as an insult, which diminished his attempt to portray Fuentess use of it as such an egregious affront that defendant lost his mind and shot him.

Moreover, defendant was not prejudiced by the brief mention of his tattoo. The type of prejudice Evidence Code section 352 seeks to avoid is not the damage to a defense that naturally results from relevant evidence, but the tendency to prejudge a person or cause on the basis of extraneous factors. (People v. Zapien (1993) 4 Cal.4th 929, 958.) Undue prejudice refers not to evidence that proves guilt, but to evidence that prompts an emotional reaction against the defendant and tends to cause the trier of fact to decide the case on an improper basis. [A]ll evidence which tends to prove guilt is prejudicial or damaging to the defendants case. The stronger the evidence, the more it is prejudicial. The prejudice referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. (People v. Karis (1988) 46 Cal.3d 612, 638.)

In the instant case there was no undue prejudice in allowing the jury to learn about defendants tattoo ‑‑ a tattoo that included a word defendant sought to show was a key factor in his losing his mind. Defendant was given an opportunity to explain that he got the tattoo when he was young and that he meant it to refer to a woman at a time when he was not interested in a relationship. He said that he later realized he was wrong and wanted to have the tattoo removed. The words of the tattoo were unlikely to cause an emotional reaction in the jury against defendant or to cause it to prejudge defendant, since the jury members were unlikely to be shocked by the words themselves. The prosecutors brief questioning about the tattoo did not constitute a burdensome consumption of time or create a danger of confusing the issues or of misleading the jury.

Defendants argument is without merit.

III. Refusal to Instruct on Imperfect Self-Defense

A. Defendants Argument

Defendant contends the trial court erred in refusing to instruct on imperfect self-defense as a basis for manslaughter because the jury should have been permitted to evaluate whether Fuentess previous threats to defendant affected defendants unreasonable belief he was in danger of imminent harm.[4] The trial courts error violated defendants due process right to present a complete defense. According to defendant, the prosecution cannot show that this violation was harmless beyond a reasonable doubt.

B. Proceedings Below

During the discussion of jury instructions, defense counsel requested the imperfect self-defense instruction for voluntary manslaughter. With respect to the evidentiary basis for the instruction, she cited defendants testimony that he believed Fuentes might have been armed with something defendant did not know about. The trial court stated that the evidence did not appear to show that such a belief was the reason defendant fired. There was no testimony from defendant or anyone else that the victim was doing anything aggressive or challenging that warranted being met with deadly force. Defense counsel reminded the court that Officer Chadbourne testified that defendant told him the victim advanced upon him with his hands in the air. Also, defendant said that Fuentes kept coming at him on the walkway, and defendant did not know if Fuentes was armed or not. The trial court pointed out that defendant walked away and then came back.

The prosecutor stated that there was no evidence of imperfect self-defense sufficient to deserve consideration by the jury. The trial court agreed and rejected the requested instruction. The trial court instructed on the heat of passion theory of voluntary manslaughter.

C. Relevant Authority

Manslaughter is the unlawful killing of a human being without malice. Manslaughter is voluntary when the killing occurs upon a sudden quarrel or heat of passion. ( 192, subd. (a).) It is also voluntary when it occurs as a result of imperfect self-defense. Under the doctrine of imperfect self-defense, when the trier of fact finds that a defendant killed another person because the defendant actually, but unreasonably, believed he was in imminent danger of death or great bodily injury, the defendant is deemed to have acted without malice and thus can be convicted of no crime greater than voluntary manslaughter. (In re Christian S. (1994) 7 Cal.4th 768, 771.)

[A] murder defendant is not entitled to instructions on the lesser included offense of voluntary manslaughter if evidence of provocation or imperfect self-defense, which would support a finding that the offense was less than that charged, is lacking. (People v. Rios (2000) 23 Cal.4th 450, 463, fn. 10.) The Supreme Court has made clear that the trial court need not instruct on a lesser included offense whenever any evidence, no matter how weak, is presented to support an instruction, but only when the evidence is substantial enough to merit consideration by the jury. (People v. Barton (1995) 12 Cal.4th 186, 195, fn. 4.)

D. Instruction Properly Denied

In the instant case, the issue is whether the defense presented evidence sufficient to raise a reasonable doubt as to whether defendant acted on an unreasonable belief in the need to defend himself. (In re Christian S., supra, 7 Cal.4th at p. 771.) We believe it did not, and there was consequently no basis for the jury to conclude that defendant unreasonably but sincerely believed he had to act in order to protect himself. (See People v. Rodriguez (1997) 53 Cal.App.4th 1250, 1269-1270 [trial court need not give a requested instruction on imperfect self-defense unless there is substantial evidence to support such an instruction].)

The record contains no evidence in support of an honest but unreasonable belief on defendants part that self-defense justified shooting to death an unarmed man. Navarro testified that Fuentes had nothing in his hands and never reached for his waistband. There was testimony that Fuentes put his hands up at one point and asked defendant, Are you going to shoot me? This does not appear to be an act of aggression, as defendant would portray it, but rather a defensive posture. None of the eyewitnesses saw anything resembling a weapon or that could have been mistaken for a weapon in Fuentess hands. Fuentes did not attack defendant physically.

Even if the jury were to believe defendants testimony about two prior instances when Fuentes brandished a gun at defendant, and defendants statement to Officer Chadbourne that Fuentes raised his fist at defendant, there was still no evidence to support a belief by defendant that he had to shoot Fuentes at that moment. He told Officer Chadbourne that he shot Fuentes after Fuentes raised his fist, but he also said that he had to pull out his gun, cock it, cock it again when it failed to fire, remove the clip, and slam the clip back in when it failed to fire a second time. During all that time, Fuentes did not attack defendant, but defendant shot Fuentes in the face after seating the clip in the weapon.

In sum, there was no substantial evidence that defendant had an honest but unreasonable belief that he was in imminent danger of being killed by Fuentes before he fired the fatal shot from close range into Fuentess head. In fact, the evidence is to the contrary. Defendant repeatedly shot Fuentes after Fuentes collapsed, which contradicts the notion that he was defending himself. And as the trial court noted, defendants trial testimony indicated that defendant was leaving the apartment complex when he returned and shot Fuentes because of Fuentess name-calling from the second floor as defendant walked away.

We thus agree with the trial court that no instruction on imperfect self-defense was justified or appropriate in this case. Regardless of the standard of review employed, no reversible error was caused by the refusal to instruct on voluntary manslaughter based on imperfect self-defense. (Chapman v. California (1967) 386 U.S. 18; Watson, supra, 46 Cal.2d 818, 836.)

IV. Sufficiency of the Evidence of First Degree Murder

A. Defendants Argument

Defendant contends that under the three-part test set out in People v. Anderson (1968) 70 Cal.2d 15 (Anderson), the evidence is insufficient to support a first degree murder verdict under the premeditation and deliberation theory. Defendant argues there was no evidence he planned to kill Fuentes and no evidence from the prior relationship of the two men that defendant had a motive to kill Fuentes, despite feelings of jealousy. The manner of killing did not show a preconceived design, and the fact that defendant shot so many times supported defendants testimony that he was not in his right mind. Defendant asserts that his conviction should be reduced to second degree murder.

B. Relevant Authority

First degree murder requires a finding the killing was deliberate and premeditated. (Anderson, supra, 70 Cal.2d at p. 24.) Anderson set standards for determining whether the evidence is sufficient to sustain a finding of deliberation and premeditation, identifying three types of evidence bearing on premeditation and deliberation: (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 defendants 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 victims life in a particular way for a reason which the jury can reasonably infer from facts of type (1) or (2). (Anderson, supra, at pp. 26-27.)

Later cases from the California Supreme Court have emphasized that the Anderson factors are merely, as stated, categories of evidence to be used as a framework in the analysis of the sufficiency of the evidence of premeditation and deliberation. (See People v. Perez (1992) 2 Cal.4th 1117, 1125 (Perez); People v. Thomas (1992) 2 Cal.4th 489, 517.) The Perez court emphasized that these factors are by no means the exclusive means of showing premeditation. (Perez, supra, at p. 1125.)

It has been repeatedly held that premeditation and deliberation do not require any specific length 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, but the express requirement for a concurrence of deliberation and premeditation excludes . . . those homicides . . . which are the result of mere unconsidered or rash impulse hastily executed. (People v. Velasquez (1980) 26 Cal.3d 425, 435, vacated on other grounds at 448 U.S. 903, reiterated on remand 28 Cal.3d 461.)

In reviewing the sufficiency of the evidence of premeditation and deliberation, we do not substitute our judgment for that of the jury. Rather, we draw all reasonable inferences in support of the verdict and affirm the judgment if any rational jury could find premeditation and deliberation beyond a reasonable doubt. (People v. Pride (1992) 3 Cal.4th 195, 247; Perez, supra, 2 Cal.4th at p. 1124.) Premeditation and deliberation may be shown by circumstantial evidence. (Anderson, supra, 70 Cal.2d at p. 25.)

C. Evidence Sufficient

We conclude that, from the evidence presented at trial, the jury could reasonably have inferred that the shooting was premeditated and deliberate. As the previously recited evidence shows, defendant engaged in planning activity by going to Fuentess apartment armed with a gun, which he concealed on his person. Defendant had ample motive to kill Fuentes because of his relationship with Navarro and the fact that Navarro had run back to Fuentes, taking defendants money with her. Defendant was also angry because Fuentes called him a bitch.

The manner of shooting clearly showed that defendant acted with premeditation and deliberation. Defendant had time to reflect on his actions during the oral confrontation that occurred between the two men and that lasted several minutes. Defendant was on his way out of the complex when he returned to climb the stairs toward his intended victim, take aim at his head, and shoot him. Witnesses testified that Fuentes told defendant to shoot if he was going to shoot. The fact that defendant shot after this remark shows that he had time to reflect on his actions. Further evidence, including from defendant himself, showed that defendants gun jammed and that he had to cock it twice. He then saw that the clip was protruding and had to reinsert it. The time it took to perform these actions establishes sufficient evidence of deliberation to support the verdict. In addition, the evidence that he fired multiple shots at the victim from a short distance while walking around the victim as he lay on the floor is consistent with a willful and deliberate attempt to kill. He continually had to manipulate the slide on the gun before firing, and he fired seven times.

As the jury was instructed in CALCRIM No. 521, premeditation and deliberation are not measured by the length of time a person spends considering whether to kill. Defendant may have arrived at his decision to commit the act in a relatively short period of time, but his act does not bear the characteristics of a rash impulse. Finally, defendants behavior after the murder is telling. He walked home, passing off the gun to an unidentified person on the way, and went out for food with his mother.

Although the jury was fully instructed on second degree murder and on voluntary manslaughter under the heat of passion theory, the jury rejected these theories. Its verdict is supported by substantial evidence, and defendants argument is without merit.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.

____________________________, J.

CHAVEZ

We concur:

_______________________________, Acting P. J.

DOI TODD

______________________________, J.

ASHMANN-GERST

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[1] All further references to statutes are to the Penal Code unless stated otherwise.

[2] Evidence Code section 352 provides: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.

[3] Section 12031, subdivision (g) provides: A firearm shall be deemed to be loaded for the purposes of this section when there is an unexpended cartridge or shell, consisting of a case that holds a charge of powder and a bullet or shot, in, or attached in any manner to, the firearm, including, but not limited to, in the firing chamber, magazine, or clip thereof attached to the firearm; except that a muzzle-loader firearm shall be deemed to be loaded when it is capped or primed and has a powder charge and ball or shot in the barrel or cylinder.

[4] CALCRIM No. 571 on imperfect self-defense reads as follows:

A killing that would otherwise be murder is reduced to voluntary manslaughter if the defendant killed a person because [he] acted in [imperfect self-defense].

If you conclude the defendant acted in complete [self-defense], [his] action was lawful and you must find [him] not guilty of any crime. The difference between complete [self-defense] and [imperfect self-defense] depends on whether the defendants belief in the need to use deadly force was reasonable.

The defendant acted in [imperfect self-defense] if:

1. The defendant actually believed that [he] was in imminent danger of being killed or suffering great bodily injury;

AND

2. The defendant actually believed that the immediate use of deadly force was necessary to defend against the danger;

BUT

3. At least one of those beliefs was unreasonable.

Belief in future harm is not sufficient, no matter how great or how likely the harm is believed to be.

In evaluating the defendants beliefs, consider all the circumstances as they were known and appeared to the defendant.

[If you find that [the victim] threatened or harmed the defendant [or others] in the past, you may consider that information in evaluating the defendants beliefs.]

[If you find that the defendant knew that [the victim] had threatened or harmed others in the past, you may consider that information in evaluating the defendants beliefs.]

[If you find that the defendant received a threat from someone else that [he] reasonably associated with [the victim], you may consider that threat in evaluating the defendants beliefs.]

[Great bodily injury means significant or substantial physical injury. It is an injury that is greater than minor or moderate harm.]

The People have the burden of proving beyond a reasonable doubt that the defendant was not acting in [imperfect self-defense]. If the People have not met this burden, you must find the defendant not guilty of murder.