Filed 11/19/14 P. v. Bowles CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048542

         v.                                                            (Super. Ct. No. 07NF1324)

JEREMY ROBERT BOWLES,                                                  OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, William
R. Froeberg, Judge. Affirmed.
                   Tonja R. Torres, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney
General, William M. Wood and Paige B. Hazard, Deputy Attorneys General, for Plaintiff
and Respondent.
              Appellant Jeremy Robert Bowles was charged with committing a string of
residential burglaries and shooting at, and attempting to kill, a police officer who tried to
take him into custody. At trial, appellant conceded the burglary charges but insisted he
was not the person who shot at the officer. To prove he was, the prosecution introduced
evidence appellant attempted to murder a drug dealer three days before the officer
shooting. Although appellant was not charged in connection with that prior incident, the
prosecution argued it was relevant to show appellant’s motive and intent to shoot the
officer. Having been convicted on all counts, appellant argues the evidence regarding the
incident with the drug dealer violated his right to a fair trial. He also contends reversal is
required because his expert witness was not allowed to opine about the reliability of
certain identification evidence, and the prosecutor misstated the law in closing argument.
Finding appellant’s arguments unavailing, we affirm the judgment against him.
                                             FACTS
              In February 2007, there was a spate of residential burglaries in and around
Fullerton. Sometimes the perpetrator strong-armed the victims into surrendering their
valuables, and other times he struck when they were not home. The investigation led to
appellant, and following his arrest on February 25, 2007, the police found much of the
stolen property in his motel room. When questioned, appellant admitted being a burglar
and a drug addict. He said he robbed from the rich to give to the poor but ended up
keeping many of the items he stole – such as a Lexus GS430 automobile – simply
because he liked them. He was charged and remained in custody until posting bond in
August 2008. When he failed to appear for his preliminary hearing on September 16,
2008, a warrant was issued for his arrest.
              Appellant had spent the previous evening, September 15, with his friend
Thomas Cho. They were owed money from a drug dealer named Mark Chavez, so they
enlisted Lori Odle, one of Chavez’s regular customers, to help them out. They had Odle
tell Chavez she was interested in buying a large amount of methamphetamine from him.

                                               2
That was enough to convince Chavez to come over to Odle’s home on the night of
September 15. When he showed up, Odle led him to her car, which was parked in her
driveway, and they started smoking methamphetamine together. A short time later, Cho
and appellant arrived in Cho’s car, and Cho confronted Chavez. Standing next to
Chavez’s window, Cho asked him, “You don’t know how to call me back or what?”
Then Cho opened Chavez’s door and tried to pull him out of the car. While that was
happening, appellant appeared with a gun and shot Chavez. As Chavez’s body lay
motionless on the ground, Cho and appellant fled the scene, and Odle called the police.
Although she identified appellant as the shooter, he was never charged with attempting to
murder Chavez. Instead, the prosecution in the instant case argued the Chavez shooting
was relevant to prove appellant’s motive and intent with respect to an incident that
occurred a few days later, on September 18, 2008.
              That morning, appellant’s photo was displayed on a wanted flier that was
shown to members of the Buena Park Police Department, including Patrol Officer Pedro
Montez. The flier stated appellant was wanted for failing to appear in court, but it did not
include any information about the recent Chavez shooting. The flier also included the
picture of a suspect named Marcel Barajas.
              Having recently seen Barajas at the Walden Glenn Apartments, Montez
drove there and set up surveillance in the parking lot. However, instead of finding
Barajas, Montez spotted Cho driving a black Honda Accord with a front passenger who
resembled appellant. After Cho noticed Montez, he said something to his passenger, who
then looked over at Montez. At that point, Montez believed the man was in fact
appellant, so he followed Cho’s car out of the parking lot.
              Cho’s car accelerated quickly and began weaving in and out of traffic, but
Montez was able to keep up with it. At one point, while Cho was stopped at a traffic
light, Montez pulled behind him and turned on his overhead lights. However, when the
traffic light turned green, Cho kept driving. Montez activated his siren and followed Cho

                                             3
as he drove toward the I-5 freeway. When Cho reached the freeway on-ramp, he stopped
his car, and Montez stopped behind it. Cho’s passenger then opened his door and
extended his arm toward Montez. Noticing the man was holding a dark object in his
hand, Montez exited his vehicle and took cover behind his car door. Then he heard a
gunshot and saw Cho’s car take off down the on-ramp.
              Montez radioed for backup and followed Cho. Just before Cho reached the
freeway, his passenger stuck his arm and head out of his window and fired another shot at
Montez. At that time, Montez noticed the man was wearing a white T-shirt and a black
baseball hat. The chase continued onto the freeway, as Cho dodged traffic and reached
speeds up to 100 m.p.h. At one point during the pursuit, Cho’s passenger positioned
himself so he was sitting on his window frame facing Montez and fired three more shots
toward the officer. Montez engaged in evasive driving to avoid getting hit. He noticed
the passenger’s hat come flying off as Cho exited the freeway at the Valley View Avenue
off-ramp.
              The chase continued at high speed as Cho proceeded north on Valley View.
He ran several red lights before eventually slowing down at Bora Drive, in a residential
area of La Mirada. At that point, Cho’s passenger exited the vehicle and fled on foot, still
holding his gun. Cho continued on a short distance to Mansa Drive, where he stopped his
car and tried to run away. However, Montez caught him and placed him under arrest.
Montez waited with Cho as other officers arrived on the scene and a police perimeter was
established around the area.
              A short time later, Yojhan Pinzon was detained nearby because he fit the
description of Cho’s passenger and witnesses saw him running in the area. At the time he
was taken into custody, Pinzon was shirtless, sweaty, and carrying a black T-shirt in his
hands. The police transported him to the scene and asked Officer Montez if he was the
shooter. At that point in time, Montez indicated Pinzon matched the description of the
shooter. However, in his mind, Montez was not entirely positive Pinzon was the gunman.

                                             4
Describing his feelings at trial, Montez said that while Pinzon “resembled” the shooter,
he was not sure Pinzon was the guy because “there was just something about his facial
appearance that did not seem the same.” Nonetheless, Pinzon was arrested and taken into
custody.
              When Montez got back to the police station, his uncertainty about Pinzon
persisted. So he went to the detective bureau and looked at some in-house photographs
of appellant and compared them in his mind to the person who had fired at him during the
chase. Through this process, Montez came to the realization appellant was the shooter,
not Pinzon. Montez proceeded to inform his supervisors of this, so Pinzon – an “innocent
man” – would not have to suffer.
              Meanwhile, appellant was still on the loose. Shortly after the car chase
ended, he entered a home near Valley View and Mansa, where 23-year-old Victor
Ramirez lived with his parents. Ramirez was getting ready for school when he noticed
appellant inside his house. Appellant motioned for Ramirez to keep quiet and asked if he
could stay at his house. Hearing helicopters overhead and police activity outside,
Ramirez figured appellant was a fugitive. Although he refused to let appellant hide in his
house, he did help appellant out. After gaining appellant’s assurance that he would never
return to his house, Ramirez sneaked appellant past the police in the trunk of his car and
dropped him off in Fullerton. Ramirez did not tell anyone about this incident until two
years later, after his mother found a gun in their house. At that point, Ramirez told his
parents about his encounter with appellant, and they turned the gun over to the police.
              When police investigators searched the area of the I-5 where the shootings
occurred, they found one live round of ammunition and a small bullet fragment. They
also discovered the black baseball hat that had flown off the shooter’s head during the
pursuit. Forensic testing revealed appellant was a major contributor of DNA found on
the hat. In addition, appellant’s DNA matched DNA that was found in the passenger
compartment of Cho’s car. Pinzon, on the other hand, was effectively excluded as a

                                             5
source of this DNA. Although gunshot residue was found on his hands after he was
taken into arrest, there was testimony suggesting the residue could have come from the
police officers who arrested him.
                  Testifying for the defense, identification expert Dr. Mitchell Eisen spoke
about the factors that affect the reliability of eyewitness identification. He said that all
witnesses, including police officers, are subject to making mistaken identifications, and
the degree of confidence a person expresses in a particular identification is not
necessarily indicative of its reliability. He warned that, over time, people tend to become
more and more confident in their identifications, even if they are not correct.
                  In closing argument, defense counsel conceded appellant was a “thug and a
thief” and plainly guilty of all 19 theft-related charges. However, defense counsel
posited appellant was not guilty of attempting to murder Officer Montez for two reasons:
1) appellant was not the shooter (Pinzon was), and 2) even if he was, he was only trying
evade the officer, not kill him. The jury was not persuaded. In addition to convicting
appellant of the theft-related charges, it found him guilty of attempted premeditated
murder, shooting from a vehicle, shooting at an occupied vehicle, assaulting a police
officer with a firearm, recklessly evading the police and possessing a firearm as a felon.
At sentencing, the trial court sentenced appellant to 53 years in prison, plus a life term
with the possibility of parole.1
                                    Admissibility of the Prior Shooting
                  Appellant contends the trial court abused its discretion and violated his
right to a fair trial by allowing the prosecution to introduce evidence regarding the
Chavez shooting. We disagree.




         1
                   Cho was tried separately and convicted of shooting from a vehicle, shooting at an occupied
vehicle, assaulting a police officer with a firearm and recklessly evading the police. (People v. Cho (July 29, 2013,
G047006) [nonpub. opn.].)


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              Under Evidence Code section 1101, evidence of a defendant’s uncharged
conduct is generally inadmissible to prove his behavior on a specific occasion or his
propensity for criminal activity. (Evid. Code, § 1101, subd. (a).) However, such
evidence may be admitted if it is relevant to some other issue that is material in the case,
such as identity, plan, motive or intent. (Id., subd. (b).) While evidence of uncharged
conduct may be excluded under Evidence Code section 352 if its probative value is
substantially outweighed by its prejudicial effect, the trial court has considerable
discretion in making this determination. (People v. Ewoldt (1994) 7 Cal.4th 380, 404-
405.) In fact, rulings made under Evidence Code sections 1101 and 352 will not be
disturbed on appeal unless they are arbitrary, capricious or patently absurd. (People v.
Rogers (2013) 57 Cal.4th 296, 326.)
              In the present case, the evidence showing appellant shot Chavez was
admitted for the limited purpose of showing his motive and intent in shooting at Officer
Montez. The prosecution theorized the Chavez shooting gave appellant “all the motive in
the world” not to surrender to Montez, which is why he fired so many shots at, and tried
to kill, him. In accepting this theory, the trial court rejected appellant’s claim the Chavez
shooting was unduly prejudicial. The court ruled “on balance, it’s probative and it’s not
inflammatory in comparison to what is alleged in this case.”
              Appellant contends the Chavez shooting was irrelevant to the issue of intent
because it was “completely dissimilar” from the Montez shooting. However, during both
incidents appellant used a firearm and was accompanied by Cho. The record shows Cho
was the one who drove appellant to and away from the scene of the Chavez shooting, and
he was also behind the wheel while appellant was shooting at Officer Montez. While the
two shootings occurred under different circumstances, we must remember that to be
admissible on the issue of intent, uncharged conduct need not be virtually identical to the
charged offense. (People v. Demetrulias (2006) 39 Cal.4th 1, 16-17.) While there must
be some similarity between the two, the more important question is whether the

                                              7
uncharged conduct sheds any light on why the defendant may have committed the
charged offense. (Ibid.)
              Here, the fact that appellant fired a shotgun at Chavez at close range less
than 72 hours before the chase with Montez was logically relevant to his intent in
shooting at Montez. According to eyewitness Odle, Chavez fell to the ground and was
motionless after appellant shot him. Although Chavez ultimately survived the shooting,
appellant could very well have thought that he had killed Chavez and that he was wanted
for murder when Montez started chasing him and Cho. Such a belief would have
provided appellant with a tremendous incentive not to let Montez catch him and take him
in. It would certainly help explain why appellant took such extreme measures to avoid
capture by repeatedly firing at Montez during the chase. (See People v. Mendoza (2011)
52 Cal.4th 1056, 1091-1092 [evidence the defendant was on parole and did not want to
go back to jail at the time he shot and killed a police officer was properly admitted to
show he committed premeditated murder in order to avoid being arrested and returned to
custody].)
              Appellant also argues the evidence of the Chavez shooting was cumulative
on the issues of motive and intent because the jury knew he was a fugitive from justice at
the time of the shooting. Given that he was already facing multiple burglary charges
when the shooting occurred, appellant contends it was “completely unnecessary” to
introduce evidence he shot Chavez. However, burglary is not the same as murder or
attempted murder. It is not unreasonable to presume that a person who is wanted for
shooting someone at close range would have a greater incentive and be more inclined to
resort to deadly violence in order to avoid police capture than a person who is wanted
solely for theft-related activity. Granted, the distinction is a matter of degree, but it was
enough to justify evidence of the Chavez shooting in this case. (See People v. Fuiava
(2012) 53 Cal.4th 622, 669 [trial court did not abuse its discretion in admitting evidence
concerning both appellant’s prior convictions and his status as a parolee because, taken

                                              8
together, they revealed the full extent to which appellant was motivated to shoot and kill
a police officer in order to avoid being taken into custody].)
              Appellant points out that, before trial, he was willing to stipulate to the
existence of motive and intent. However, “‘[A] criminal defendant may not stipulate or
admit his way out of the full evidentiary force of the case as the Government chooses to
present it.’ [Citation.]” (People v. Rogers, supra, 57 Cal.4th at p. 330.) While the case
against appellant was quite strong – even without the Chavez shooting evidence – “the
prosecution had the right to present all available evidence to meet its burden of proving
the requisite mens rea for [attempted premeditated] murder beyond a reasonable doubt.
[Citations.]” (Ibid.) That included the evidence of appellant’s involvement in the
Chavez shooting.
              That brings us to the issue of prejudice. Appellant argues that because
there was no evidence he was prosecuted for the Chavez shooting, the jury would have
been inclined to punish him for that shooting, regardless of his guilt in the present case.
He also fears the jury may have misused the evidence of the Chavez shooting for the
purpose of proving the issue of identity. But throughout the trial, the judge, the
prosecutor and defense counsel repeatedly told the jurors they could only consider the
Chavez shooting for the limited purpose of ascertaining appellant’s motive and intent.
On at least a half a dozen occasions, the jurors were expressly told that they could not
consider the Chavez shooting for any other purpose.
              In light of these instructions, and given the fact the Chavez shooting was no
more incendiary than the Montez shooting, we do not believe the challenged evidence
was unduly prejudicial. (See People v. Fuiava, supra, 53 Cal.4th at p. 669 [emphasizing
the importance of such instructions in limiting the potentially prejudicial effect of prior
crimes evidence].) Therefore, the trial court did not abuse its discretion or violate
appellant’s right to a fair trial by admitting it. Because the evidence concerning the



                                              9
Chavez shooting was more probative than prejudicial, we have no occasion to disturb the
court’s ruling.
                          Limitations on Defense Expert’s Testimony
              Appellant also contends the trial court erred in refusing to let his expert
witness answer a hypothetical question about the accuracy of Officer Montez’s initial
identification of Pinzon. Again, we disagree.
              After Dr. Eisen testified about the general factors affecting the reliability of
eyewitness identification, defense counsel asked him a lengthy hypothetical question
steeped in the facts of the case. Here is how the questioning unfolded:
              “Q. [by defense counsel]: Assume that a witness to a crime came to a
certain location to find a particular person or persons. Assume that this witness had seen
head shots of these persons earlier that same day and was at this location to find them.
Also assume that, while at the scene, this witness peered into a passing car, and based on
what he saw when he looked into the passing car, he decided at that moment in time that
the passenger was one of the guys he was looking for. [¶] Assume that this was a
definitive, honest and sincere belief on his part. [¶] Now, add to this hypothetical that
what followed was a car chase with this vehicle and that during this chase the passenger
leaned out of the window, sat in the window of the car on the freeway with a gun and
apparently started shooting towards the witness.
              “A. [Dr. Eisen]: Yes.
              “[¶] . . . [¶]
              “Q. . . . Now, add to the hypothetical that right after the chase, while it was
freshest in his mind, the witness was a shown a suspect in an in-field show-up, okay? He
was caught by other police officers within the [perimeter].
              “[¶] . . . [¶]
              “Q. And, according to the officer’s report who conducted the show-up, the
witness immediately and without hesitation identified him as the passenger of the car

                                             10
who was leaning out the window and shooting at him. [¶] Now, assume that, according
to available reports, the witness believed that he had just identified the person whose
heads shots he had seen earlier that day.
              “A. Yes.
              “Q. But it turned out that it was not the same guy and that the witness had,
in fact, confused the person he identified with the guy whose picture he had seen earlier
that day. Are you still with me?
              “A. Yes.
              “[¶] . . .
              “Q. Now, finally assume that when the witness learned that the guy who he
just identified was not the guy who he thought he was chasing, he qualified his
identification and recorded that he had only stated, ‘This guy resembled the guy I was
chasing.’
              “A. Yes.
              “Q. All right? [¶] Based on the research and not specific to the I.D.’s of
the witnesses in this case, what’s the best indication of a person’s memory, the report
made right after the event while it was freshest in their mind or a report after some delay
and after the witness had time to rethink his experience?”
              At that point, the prosecutor objected, “improper hypothetical,” and the
court sustained the objection. The court reasoned that while Dr. Eisen could talk about
the issue of memory in general terms, he could not “render an opinion as to which
[identification] is more accurate,” because “that’s the jury’s job at this point.”
              Appellant contends the trial court’s refusal to let Dr. Eisen answer the
hypothetical question infringed his constitutional right to present a defense. He sees no
reason why Dr. Eisen should not have been allowed “to render an opinion regarding the
likely accuracy of the eyewitness identification at issue – Officer Montez’s.”



                                              11
               However, while the trial court has the discretion to allow expert testimony
on the issue of eyewitness identification (see People v. McDonald (1984) 37 Cal.3d 351,
disapproved on another point in People v. Mendoza (2000) 23 Cal.4th 896, 914), there is
a distinction between expert testimony regarding the factors which may lead to an
inaccurate or unreliable identification and expert testimony concerning the particular
identifications at issue in the case. As our high court has explained, expert identification
testimony “does not seek to take over the jury’s task of judging credibility: . . . it does
not tell the jury that any particular witness is or is not truthful or accurate in his
identification . . . . Rather, it informs the jury of certain factors that may affect such an
identification in a typical case; and to the extent that it may refer to the particular
circumstances of the identification before the jury, such testimony is limited to explaining
the potential effects of those circumstances on the powers of observation and recollection
of a typical eyewitness.” (Id. at pp. 370-371.)
               Here, the proposed hypothetical question went beyond that limitation by
seeking to elicit expert testimony about the reliability of Montez’s identifications in this
case. It sought a conclusion about which identification was accurate in this case. The
trial court’s decision to preclude this testimony was therefore proper and correct. The
court’s ruling did not violate appellant’s right to present a defense because Dr. Eisen was
allowed to testify at length regarding the applicable factors affecting the reliability of
eyewitness identification. Having heard Dr. Eisen’s testimony in this regard, the jury was
fully qualified to ascertain whether, and to what extent, those factors affected the
reliability of the identification evidence presented in this case. (People v. Brandon
(1995) 32 Cal.App.4th 1033, 1053; People v. Sandoval (1994) 30 Cal.App.4th 1288,
1298; People v. Page (1991) 2 Cal.App.4th 161, 188.)
                              Alleged Prosecutorial Misconduct
               During closing argument, the prosecutor utilized an analogy about driving a
car in attempting to explain the elements of premeditation and deliberation. Appellant

                                               12
argues the analogy minimized the seriousness of the charges and diminished the
prosecution’s burden of proof on the attempted murder charge, but we do not see it that
way.
              In discussing the attempted murder charge, the prosecutor told the jury a
person deliberates if he carefully weighs the considerations for and against his decision to
kill, and he premeditates if he decides to kill before acting. The prosecutor further stated,
“The length of time [a person] spends considering whether to kill does not alone
determine whether the attempted killing is deliberated and premeditated. . . . [A] cold
calculated decision to kill can be reached quickly. The test is the extent of the reflection,
not the length of time.” Those comments parroted the court’s instructions on attempted
murder and are not challenged on appeal. (See CALCRIM No. 601.)
              However, appellant does challenge what the prosecutor said next. He told
the jurors, “Let me give this example if I can? This probably . . . happened to some of us
coming to work this morning or coming to jury duty this morning. You’re driving down
the street and you’re coming upon an intersection[,] as you get close to the intersection
you see that the light phases from green to yellow. And in your mind you start to make a
determination[,] am I going to go or am I going to stop? And you deliberate and you
premeditate. And you know that you can reach this conclusion pretty quickly. You
know that there’s a danger that if you go through[,] the light may phase to red and there
may be an accident in the intersection or there’s a red light camera or maybe there’s a
highway patrolmen, . . . and maybe you will get a ticket; but you make that decision and
you’re able to weigh those factors pretty quickly. [¶] Okay. That’s kind of the law on
premeditation and deliberation. You can weigh the factors.”
              Defense counsel did not object to these remarks, but in her closing
argument she contended the intent required for premeditation and deliberation was not
akin to the “split second decision” people face at a yellow light. Deriding the
prosecutor’s argument, she asserted, “What’s the consequence of going through a red

                                             13
light? A ticket? That’s the deliberation [required] for [premeditated] intent to kill?
That’s a horrible example. This is not what the law requires.” Alluding to the court’s
jury instructions, defense counsel then proceeded to explain that attempted premeditated
murder requires a careful weighing of the consequences and that “[a] decision to kill
made rashly, impulsively or without careful consideration of the choice and its
consequences” is not deliberate and premeditated.
              The prosecutor returned to this point in his rebuttal argument. He stated, “I
know the defense doesn’t like my examples, but . . . we premeditate and deliberate and
think about the consequences [when deciding] whether [to] take our foot off the
accelerator and put it on the brake or we just stay on the accelerator [and] go through a
yellow light. [¶] You’re weighing the consequences of your actions. It doesn’t mean that
you need to know what the fine is for running a red light. It doesn’t mean that you need
to know whether you’re going to get a ticket or you’re going to strike another vehicle. It
doesn’t mean that when we’re talking about the premeditation and deliberation of an
attempted murder that you know whether or not somebody definitely is going to get hit or
die. It doesn’t mean you know what the actual charges that you’re [going to be] facing or
the consequences of those charges. That’s not what we’re talking about.
              “We’re talking about cause and effect. You pull the trigger in order to
shoot somebody and you know what your actions are doing. You have the intent to kill.
Nobody, nobody picks up a firearm, racks the slide to make sure that there’s a chambered
round, aims it at [a] police officer and pulls that trigger without the intent to kill. And to
do it four more times, four more times. [¶] And if that’s not intent to kill with
premeditation and deliberation when the first shot is a minute and 40 seconds after you
saw the officer for the first time I don’t know what is.”
              There are several reasons why the prosecutor’s comments do not amount to
reversible error. First, defense counsel never objected to them and instead chose to
address them in her own closing argument. Claims regarding alleged prosecutorial

                                              14
misconduct are generally forfeited on appeal absent an objection in the trial court.
(People v. Morales (2001) 25 Cal.4th 34, 43-44; People v. Samayoa (1997) 15 Cal.4th
795, 841.) You cannot parry an opponent’s thrust and then complain it was illegal if you
fail.
              Second, in using the example of a driver facing a yellow light to explain the
concepts of premeditation and deliberation, the prosecutor was simply trying to
emphasize the point that those elements do not require an extended thought process. As
the trial court’s instructions made clear, and our Supreme Court has repeatedly stated,
premeditation and deliberation can indeed occur in a very short period of time.
(CALCRIM No. 601 [“a cold, calculated decision to kill can be reached quickly”];
People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 294 [premeditation and deliberation
“can occur in a brief interval”].) Therefore, the prosecutor’s remarks were not
misleading. (See People v. Osband (1996) 13 Cal.4th 622, 697-698 [prosecutor did not
misstate the law by arguing premeditation simply means considered beforehand].)
              Third, the prosecutor’s comments did not trivialize or misstate the state’s
burden of proof. In arguing otherwise, appellant relies on People v. Johnson (2004) 119
Cal.App.4th 976 and People v. Nguyen (1995) 40 Cal.App.4th 28, but those case are inapt
because they involved prosecutorial comments on the reasonable doubt standard, not the
elements of premeditation and deliberation. The truth is, there was nothing in the
prosecutor’s traffic light analogy that suggested she did not have to prove premeditation
and deliberation beyond a reasonable doubt. That being the case, we fail to see how the
analogy could possibly have led the jury to apply an incorrect standard of proof in
assessing the truth of the attempted murder charge.
              Lastly, appellant could not have been prejudiced by the prosecutor’s
remarks, because the jurors were 1) properly instructed on the prosecution’s burden of
proof and the definition of premeditation and deliberation, and 2) told they must follow
the court’s instructions if they conflict with anything said by the attorneys during

                                             15
argument. (See CALCRIM No. 200.) Given these instructions, it is not reasonably likely
the prosecutor’s challenged remarks actually misled the jury. Therefore, there is no cause
for reversal. (People v. Morales, supra, 25 Cal.4th at p. 47.)
                                      DISPOSITION
              The judgment is affirmed.




                                                 BEDSWORTH, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.




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