Filed 7/8/13 P. v. Fletcher 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                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B234595

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA331552)
         v.

JAMES FLETCHER et al.,

         Defendants and Appellants.



         APPEALS from judgments of the Superior Court of Los Angeles County.
Sam Ohta, Judge. Affirmed as modified.
         David M. Thompson, under appointment by the Court of Appeal, for Defendant
and Appellant James Fletcher.
         Danalynn Pritz, under appointment by the Court of Appeal, for Defendant and
Appellant Jerry Burke.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Victoria B. Wilson and Noah P.
Hill, Deputy Attorneys General, for Plaintiff and Respondent.


                  ___________________________________________________
       A jury convicted defendant James Fletcher of one count of attempted murder (Pen.
Code, §§ 664/187)1 (count 1) and one count of voluntary manslaughter as a lesser
included offense of murder (§ 187) (count 6). The jury found that Fletcher committed
count 1 willfully, deliberately, and with premeditation, and it found the firearm and gang
enhancement allegations true as to that count. (§§ 12022.53, subds. (b), (c), (d) & (e)(1),
186.22, subd. (b).) The jury found that Fletcher personally used a firearm during the
commission of count 6. (§ 12022.5, subd. (a)).
       A jury convicted defendant Jerry Burke of two counts of attempted murder
(§§ 664/187) (counts 2 & 3). The jury found that counts 2 and 3 were committed
willfully, deliberately, and with premeditation, and it found the gang enhancement
allegations to be true (§ 186.22, subd. (b)). In both counts 2 and 3, the jury found true the
allegation that a principal personally discharged a firearm within the meaning of section
12022.53, subdivisions (b), (c), and (e)(1), but not true as to subdivision (d) of that
statute.
       The trial court sentenced Fletcher to life with the possibility of parole in count 1,
plus a consecutive term of 25 years to life pursuant to section 12022.53, subdivisions (d)
and (e)(1). In count 6, the trial court imposed a consecutive upper term of 11 years plus a
consecutive 10-year firearm enhancement pursuant to section 12022.5, subdivision (a).
       The trial court sentenced Burke to life with the possibility of parole in count 2.
The court added a consecutive term of 20 years pursuant to section 12022.53,
subdivisions (c) and (e)(1). The trial court imposed an identical concurrent term in
count 3.




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


                                              2
       Fletcher appeals on the grounds that: (1) the evidence was insufficient to support
the finding that the attempted murder in count 1 was willful, deliberate, and
premeditated; and (2) he is entitled to two additional days of presentence custody credit.2
       Burke appeals on the grounds that: (1) the evidence was insufficient to support the
findings that the attempted murders charged in counts 2 and 3 were willful, deliberate,
and premeditated; and (2) he was denied his Sixth Amendment right to competent
counsel because his trial attorney should have requested an instruction on provocation
and advocated for second degree attempted murder.
       Fletcher and Burke join in any of each other‟s arguments that may accrue to their
benefit.
                                         FACTS
Prosecution Evidence
       The offenses with which defendants were charged are described in chronological
order. We include a brief summary of the offenses that the jury found were not proven
beyond a reasonable doubt, since they played a role in the investigation.
Count 6: Shooting of Victim Rhaburn (Fletcher Convicted of Voluntary Manslaughter)
       Officer Bryan Delavan of the Los Angeles Police Department (LAPD) responded
to a radio call regarding a shooting at the intersection of Coco Avenue and Pinafore
Street in Los Angeles at approximately 5:30 a.m. on August 26, 2007. Officer Delavan
arrived at the scene and saw a car with its lights on and the engine running. The car
contained the body of an individual. The victim, later identified as Eligah Rhaburn, was
sitting in the driver‟s seat and had several gunshot wounds, including one near the back
of the head. The victim‟s car had crashed into a parked minivan at the curb. The driver‟s
side window and left rear window of the vehicle had been shot out, and the right front
passenger window of the vehicle had shattered. An autopsy revealed that Rhaburn died


2     Fletcher has also filed a petition for writ of habeas corpus in case No. B241174 in
which he alleges ineffective assistance of trial counsel. The petition will be considered
concurrently with, but separately from, the instant appeal.


                                             3
of multiple gunshot wounds and had suffered seven such wounds. The pathologist
believed Rhaburn was shot from the driver‟s side of his vehicle.
       LAPD Detectives James Yoshida and Richard Gordon responded to the scene later
that morning. Detective Yoshida found 11 spent .45-caliber cartridge casings at the
scene. Detective Yoshida also found three expended bullets at the scene—two on
Pinafore Street and one near Mr. Rhaburn‟s vehicle.
       LAPD criminalist Vanessa Gould conducted a bullet path analysis on Rhaburn‟s
vehicle. She noted approximately 14 impacts to the vehicle. The pathways of all the
bullets originated on the left side of Rhaburn‟s car and moved from front to back.
       Rhaburn was shot in a residential neighborhood of South Los Angeles that is often
referred to as “the jungle.” The neighborhood is claimed as the territory of the Black P-
Stone Bloods criminal street gang. Rhaburn was a member of the Black P-Stone Bloods.
Counts 2 and 3, Victims Erwin and Mario Alvarado (Burke Convicted of Attempted
Murder; Fletcher Acquitted)
       On September 20, 2007, at approximately 1:45 a.m., Erwin Alvarado was driving
his Ford Explorer on Westhaven Street in Los Angeles. Erwin‟s cousin, Mario Alvarado,
was in the front passenger seat of the vehicle. 3 Erwin and Mario were not gang
members, and they were unarmed. As Erwin approached Redondo Boulevard, he saw
that two cars were blocking the street and not letting cars pass through. There was a
white Toyota Camry with tinted windows double parked in the street directly behind a
white Chevrolet Impala. Erwin moved closer so that people could see he was trying to
get through.
       Erwin recalled that at least three Black males approached him and Mario, and one
of them pulled out a gun and shot at them from a distance of two car lengths. Then the
other two men began shooting at Erwin and Mario also. Erwin put his head down and
began reversing the Explorer. At one point, he looked up and a bullet grazed his



3       Because Erwin and Mario Alvarado have the same last name, we refer to them by
their first names.

                                            4
forehead. Erwin collided with a couple of cars as he reversed. When he looked up, the
shooting had stopped and it looked like the shooters had gone. Erwin drove to his aunt‟s
house and she called the police. He and Mario were taken to a hospital.
        Mario recalled that a Black male approached the car and asked Mario what he was
doing there. When Mario said he was going home, the man said, “Just leave.” Erwin
began to reverse the Explorer, and some other man got out of a vehicle and said, “Yeah.
It‟s them,” and “They‟re from 18th Street.” Mario recognized that man because he used
to be Mario‟s next-door neighbor. Mario knew him as “Jerry.” At trial, Mario indicated
that the man was Burke. The man on the sidewalk was dark-skinned and wore braids.
There was a third man as well. After Burke made the remark about 18th Street, he and
the man on the sidewalk, whom Mario identified at trial as Fletcher, started shooting at
Mario and Erwin with a .45-caliber weapon. Burke shot into the front of the Explorer,
and the other man into the passenger side. The Explorer was hit by 12 bullets. Mario
was struck by a bullet from the man on the sidewalk. Mario suffered a through-and-
through wound in his forearm and one just above his stomach. A bullet is still inside his
body.
        LAPD Officer Alfredo Ibanez responded to a radio call regarding the shooting and
arrived at the scene at approximately 1:50 a.m. Officer Ibanez recovered 17 spent .45-
caliber shell casings and four expended .45-caliber bullets from the intersection.
        Although Mario was not a gang member, he knew that the 18th Street gang
claimed the area where he lived, and he knew some of the gang‟s members. He knew
that the Geer Street Crips inhabited the same area. Mario had seen Burke almost daily
when they were neighbors. He described their former relationship as a friendship. Mario
was shown a six-pack and circled Burke‟s photograph. He wrote that “The person, No. 4,
was the one that said, yes, they‟re from 18th Street and started shooting at us.”
        At trial, Mario at first denied that he had previously told police he could not
identify Burke. He later acknowledged that he told police at first he did not remember
anything and could not identify anyone. He delayed because he was scared. The first
time he identified Fletcher was at trial. He then said he was “kind of” not really sure

                                               5
Fletcher was there. Mario testified that the Chevrolet Impala depicted in the photograph
that LAPD Detective Charles Geiger had shown him was not the same vehicle that had
been parked in front of the Camry on the night of the shooting.
       Detective Geiger heard about the Alvarado shooting a couple of days after it
occurred. When he interviewed Mario at his residence, Mario was cooperative but
scared. He told Detective Geiger that he did not get a very good look at anyone during
the shooting. In a second interview, when shown a picture of a Chevrolet Impala, Mario
said it looked like one of the cars used by the suspects. Mario changed his story that day
and told Detective Geiger that he had been afraid to say anything, but he recognized one
of the people involved in the shooting as a person he knew as Jerry, who had lived next
door to him. Mario knew Jerry was a Geer Gangster Crip. Detective Geiger showed
Mario a six-pack containing a photo of Fletcher, but Mario was unable to identify
anyone.
       Mario had previously lived in the 2300 block of South Ridgeley Drive in
Los Angeles. In 2004, Burke told police officers that he lived in the 2300 block of South
Ridgeley Drive in Los Angeles. Mario had moved away from Burke‟s neighborhood
sometime prior to the shooting.
Count 1: The Shooting of Victim Campos (Fletcher Convicted of Attempted Murder)
       On the same day as the Alvarado shootings, at approximately noon, Victor
Campos was standing and speaking with a neighbor outside his apartment building,
which was located near the intersection of Carlin Street and Hauser Boulevard in
Los Angeles. This area is 18th Street gang territory, although the Geer Street Crips share
some of the same area. Campos is not a gang member. A silver or gray Impala with two
Black occupants approached. Campos stared at the car. He clearly heard one of the
occupants say, “Fuck 18th Street.” The passenger shot at Campos with either a .45-
caliber or a .22-caliber handgun. Campos looked at the shooter‟s face, but at the
preliminary hearing and at trial he was unable to identify anyone. He denied being afraid
because it was a gang case. Campos suffered a through-and-through wound in the back
in the area of his shoulder.

                                            6
       A few days later, Campos looked at some photographs after being admonished by
detectives. Campos chose picture No. 3 in a photographic lineup (six-pack) (People‟s
Exh. No. 95), and wrote, “person picture 3, the shooter.” Picture No. 3 was a picture of
Fletcher. At trial, Campos stated that “it looked like him at the moment.” At the
preliminary hearing, Campos testified that he identified the person in the picture from the
braids the person wore rather than the face. Campos was shown a picture of a gray
Impala (People‟s Exh. No. 74). He testified that he told police “it looked like the car of
that day.”
       Detective Geiger responded to a radio call regarding the Campos shooting. He
found a blood trail and one expended .45-caliber shell casing under a truck parked on the
street. Detective Geiger met with Campos at the hospital, and he later interviewed
Campos and showed him a six-pack. Campos circled Fletcher‟s picture and indicated
that Fletcher, in picture No. 3, was the person who shot him. Campos did not say
“„maybe.‟” When Campos saw the picture of the gray Impala, he said, “That‟s the car.”
       The jury heard a recording of a 911 call reporting the shooting, and jurors were
given transcripts of the call. The anonymous caller told the 911 operator that someone
had shot two to three times from a silver Chevrolet with no license plate.
Counts 4 and 5, Victims Rudy Chavez and Gustavo Guzman (Fletcher Acquitted of
Attempted Murders)
       Five days after the Alvarado and Campos shootings, at approximately 1:46 p.m., a
911 dispatcher received an anonymous call about shots fired on Westhaven Street near
Redondo Boulevard. The caller saw a white Chevrolet Malibu fleeing the area. The car
appeared to have two male Black occupants. LAPD Officer William Corona responded
to the shooting scene. He saw debris from an auto accident, including the grill assembly
and rear bumper from a Chevrolet sedan. The bumper had a black paper plate on it. The
license plate frame read, “Torrance, Martin Chevrolet.” Officer Corona found eight shell
casings in the intersection. Seven of the casings were from a nine-millimeter handgun
and one was from a .45-caliber handgun. Officer Corona located 11 more shell casings
farther down the street.

                                             7
       A witness approached Officer Corona at the crime scene and said he heard five to
six rapid shots from his second-floor apartment. He saw a silver sedan speeding
eastbound on Westhaven Street. At the intersection with Redondo Boulevard, the silver
car collided with a green car. The driver of the green car, a male Black, got out and shot
at the silver car. The driver of the silver car, a male Hispanic, started shooting back.
       At approximately 2:00 p.m. on the day of this incident, LAPD Officer Sung Yoon
went to a hospital located one mile from the intersection of Redondo Boulevard and
Westhaven Street on an unrelated matter. Upon leaving the emergency room, Officer
Yoon saw Rudy Chavez and Gustavo Guzman walking towards the hospital from a tan
Lincoln LS. Chavez had his arm around Guzman and appeared to be in pain. Guzman
told Officer Yoon that Chavez had been shot in his right leg. Chavez and Guzman told
Officer Yoon differing versions of what had occurred.
       Neither Chavez nor Guzman, who were 18th Street gang members, testified at
trial. Detective Geiger was unable to locate either victim for trial or for Fletcher‟s
preliminary hearing.
The Investigation Leading to Defendants
       On September 19, 2007, Detective Geiger interviewed Demario Green, a member
of the Geer Gang Crips who had been arrested for robbery. Detective Geiger asked
Green for information about members of the Geer Gang Crips who were committing
shootings in the community. Green told the detective that one of them was known as
“Smurf.” Detective Geiger determined that Fletcher was a Geer Gang Crip known as
“Smurf.”
       The day before the Chavez shooting, Detective Geiger conducted surveillance
outside of 3460 Hyde Park Boulevard in Los Angeles.4 Detective Geiger photographed a
silver Chevrolet Impala outside of the residence. He also saw a gray Chevrolet Monte
Carlo parked outside. Detective Geiger saw Fletcher get into the Impala later that day. A



4      Fletcher‟s girlfriend testified that Fletcher lived at this address.


                                               8
bumper found at the intersection of Redondo Boulevard and Westhaven Street following
the shooting of Chavez appeared to be the same bumper the detective saw on the
Chevrolet Impala parked in front of Fletcher‟s apartment building. It was the same color
and had the same license plate frame and paper plate.
       Fletcher was the registered owner of a Chevrolet Monte Carlo. The address listed
on appellant Fletcher‟s vehicle registration was 3207 West Adams Boulevard in
Los Angeles.5 On September 27, 2007, LAPD Sergeant Kenneth Schmidt executed a
search warrant at an apartment located at 3207 West Adams Boulevard. Sergeant
Schmidt found a semiautomatic .45-caliber firearm underneath a couch cushion. It was a
Millennium .45-caliber Taurus. He also found a letter bearing the name of James
Fletcher. The firearm was fully loaded, with 10 rounds in the magazine and one in the
chamber.
       LAPD criminalist Stella Chu examined the weapon recovered from Fletcher‟s
residence and test-fired the weapon. Chu compared the expended bullets and casings to
those recovered during the shootings charged in the instant case. The testing showed that
the gun found in Fletcher‟s residence had discharged all of the ballistic evidence found
after the shootings of Rhaburn and Campos. Seven of the 17 shell casings recovered in
the Alvarado shooting had been discharged from the weapon found in Fletcher‟s
residence, and 10 of those shell casings were fired from a second weapon. Chu
determined that the .45-caliber casing found at the Chavez shooting scene had been fired
from the weapon found in Fletcher‟s residence.
       On November 16, 2007, LAPD Detectives Sean Hansen and Richard Gordon
interviewed Green, who was in custody. The jury saw still photographs taken from the
video of Green‟s interview and heard a redacted audio-recording of the interview. Green
said that on the morning of Rhaburn‟s shooting, Fletcher, known as “Smurf” and “Little
Smiley,” asked Green if he could leave his gun at Green‟s house because the gun was



5      Fletcher also used the West Adams Boulevard address.


                                            9
“hot.” Fletcher did not leave the gun at Green‟s because Green told him the police had
recently been there. Fletcher said he would take the gun to his mother‟s house. The gun
was a .45-caliber Millennium. Fletcher told Green he had shot someone. Fletcher said he
had been driving to his girlfriend‟s residence when a Black man in a car “rolled up on
him.” Fletcher thought the man was a Blood and was going to shoot him. Fletcher shot
at the man repeatedly and the man‟s car crashed into another car. Green identified
Fletcher from a six-pack. Green identified a photograph of Burke in a different six-pack
and said he knew him as Jay Loc.
      Green was called to testify at trial but he at first refused and was found in
contempt of court. He later agreed to testify under an immunity agreement. He denied
he was asked about the shooting on Coco Avenue and Pinafore Street. He denied
knowing the defendants. He denied saying everything he told the officers in his
interview. On cross-examination, Green said he made statements to get money and was
promised he would not be charged with a robbery. Green claimed he made up the
information he told the officers. He also claimed he was told what to say.
Gang Evidence
      LAPD Detective David Dilkes testified as a gang expert. He stated that the Black
P-Stones are a Blood gang. The Geer Gang Crips are rivals of the P-Stones and of the
18th Streeters, a Hispanic gang. The primary activities of the Geer Gang Crips are the
sale of narcotics, drive-by shootings, and assaults with deadly weapons. Detective Dilkes
testified about the 2005 felony convictions of two Geer Gang Crips members. Fletcher
and Burke are members of the Geer Gang Crips. Fletcher has the monikers of “Little
Smiley” and “Smurf.” Burke is known as “J-Loc” or “Blue.”
      Detective Dilkes explained that the intersection of Coco Avenue and Pinafore
Street is in Black P-Stone Bloods‟ territory. Rhaburn was a member of the Black P-
Stones, but he was not an active member. The 18th Street gang is a Hispanic criminal
street gang that claims roughly the same territory as the Geer Gang Crips. The 18th
Street gang is much larger than the Geer Gang Crips. The two gangs were at war in



                                            10
2007. Detective Dikes believed that the intersections where the Campos, Alvarado, and
Chavez shootings occurred are all “stronghold” areas of the 18th Street gang.
       Deputy Dilkes explained that, due to the danger involved, a gang member can
greatly raise his status within his gang by going into a rival gang‟s territory and shooting
a rival gang member or someone who appears to be a rival gang member. A gang
member can also raise his status by shooting a rival gang member or
someone he believes to be a rival gang member when that person is present in the
shooter‟s territory. When presented with a hypothetical based on the facts of the instant
case, Deputy Dilkes was of the opinion that each of the shootings was committed for the
benefit of, or in association with, a criminal street gang.
Defense Evidence (Fletcher)
       Dr. Mitchell Eisen , a psychologist, testified as an expert on the subject of
memory. Dr. Eisen explained that we have limits on our attentional capacity. A person
remembers the major features of important events and fills in the gaps by using inference
to complete the picture. At times the inferences are mistaken. Once an individual has
reconstructed a memory, the most recently reconstructed version is the one the person
will access the next time he or she accesses that memory. Traumatic stress causes one to
focus on the central elements of the experience, i.e., what is necessary to surviving the
event. The focus will differ among individuals, but focus on a brandished weapon is very
common.
       Dr. Eisen explained that if someone does not recognize a photograph in a six-pack
immediately, they persevere and pick the closest one. If a witness indentifies someone,
whether correctly or incorrectly, the witness may continue to choose that person in the
future. The memory errors Dr. Eisen described occur when people are doing their best to
be accurate. Dr. Eisen stated that there is no relation between witness confidence and
witness accuracy, and people become more certain about their identification over time.
Dr. Eisen offered no opinion on the accuracy of any identification of Fletcher or Burke
made by any witness in the case.



                                              11
       Ebony Clarke is the mother of Fletcher‟s son. Clarke and Fletcher were not living
together in 2007. Fletcher drove a gray Monte Carlo, and Clarke had never seen him
drive another type of car. Fletcher lived at 3460 Hyde Park Boulevard but he was
sometimes at his mother‟s house. Fletcher always picked up their son at preschool
Tuesdays through Thursdays between 2:30 or 3:00 p.m.
       Kimi Lent is a gang intervention specialist who testified as a gang expert. To her
knowledge, Eligah Rhaburn was not a Black P-Stone gang member. Lent had met with
Fletcher and knew he had a long history of being a Geer Gang Crip member. Lent stated
that the Black gangs engage in less rivalry because their main rival is the 18th Street
gang. It is a common practice for gang members to pass around guns. They also pass
around cars, including rented or stolen cars. She stated there are more personal shootings
than gang-related shootings in the gang neighborhoods, even though a gang member may
be the shooter. Lent said that there is animosity between the Geer Gang and the 18th
Street gang. Lent agreed that if a Geer Gang member saw someone who appeared to be
from 18th Street and then pulled out a gun and shot that person in the back while yelling
“Fuck 18th Street,” it would demonstrate that the Geer Gang member had hostility
towards 18th Street. The same would be true if someone said “They‟re from 18th Street”
and began shooting into a car.
       David Terrell was a member of the Black P-Stone Bloods. He knew Fletcher from
a gang intervention program, from gang banging when they were active, and from being
with him in prison and juvenile hall. Terrell knew Fletcher to be a member of the Geer
Gang Crips who used the moniker, “Little Smiley.” Fletcher had always driven a Monte
Carlo. Terrell and Fletcher had been enemies at one time, but Fletcher had a “pass” to go
to the Black P-Stone‟s area. In other words, Fletcher could enter rival gang territory
without the threat of violence, and he did so on many occasions.
       Terrell stated that gang members pass around guns and cars. To Terrell‟s
knowledge, Eligah Rhaburn was not a Black P-Stone. Rhaburn‟s tattoos were not related
to the Black P-Stone Bloods. According to Terrell, the Geer Gang Crips are not rivals of
the Black P-Stones; rather, they have been allies for about 10 years. At the time of his

                                             12
testimony, Terrell was in custody on a parole violation. He had suffered a conviction for
possession of a firearm and had violated his parole condition that prohibited him from
associating with other gang members. Terrell had seen appellant Fletcher in custody
every day prior to trial, and they had engaged in brief conversations.
       DNA tests performed on swabs taken from the firearm recovered from the
residence of Fletcher‟s mother demonstrated that his DNA was inconsistent with the
profiles obtained from the weapon, which were of two different individuals. Burke could
not be excluded as a contributor to the DNA profile found on the weapon. It was possible
that the criminalist who test-fired the weapon contributed to the DNA profile. DNA is
not always left on the surface of a handgun after it has been used, and DNA evidence can
be wiped away.
       LAPD Criminalist Margaret Kaleuati analyzed the gunshot residue evidence taken
from Rhaburn‟s hands. The tests showed that Rhaburn had particles on his right hand
that were consistent with gunshot residue. This residue could have been the result of
being within 14 feet of a gun being shot. Kaleuati explained that is common to find
gunshot residue on a shooting victim.
       LAPD Detective Brandy Arzate determined that the bumper found in the
intersection of Redondo Boulevard and Westhaven Street following the incident with
Guzman and Chavez bore a license plate frame that read, “Torrance, Martin Chevrolet.”
The paper plate read, “Melika Auto Sales.” The sales records of Melika Auto Sales
showed that a car that was a close match to the silver or gray Impala was sold, but
without the vehicle identification number, there was no ability to compare it to the car
Detective Geiger had seen Fletcher driving.
       Mark Cova managed the account services department at Westcom Credit Union.
Fletcher obtained a loan on March 16, 2007, to purchase a 2005 Chevrolet Monte Carlo
from Melika Auto Sales. A Jason Johnson purchased a 2006 Chevrolet Impala. Fletcher
listed his home address as 3207 West Adams Boulevard in Los Angeles on the financing
contract.



                                              13
Defense Evidence (Burke)
       Burke did not testify on his own behalf and presented no affirmative evidence.
                                       DISCUSSION
I. Sufficiency of the Evidence of Willful, Deliberate, and Premeditated Attempted
Murder (Count 1)
       A. Fletcher’s Argument
       Fletcher contends that, assuming he was the shooter, no rational trier of fact could
have found beyond a reasonable doubt that the attempted murder of Campos was willful,
deliberate, and premeditated. There was no credible evidence of any planning activity or
motive to support the finding. Fletcher asserts that not every drive-by shooting involving
a gang member meets the requirements to impose a life sentence.
       B. Relevant Authority
       Attempted murder requires express malice, and, on appeal, we do not distinguish
between attempted murder and completed first degree murder to determine whether there
is sufficient evidence to support the finding of premeditation and deliberation. (People v.
Herrera (1999) 70 Cal.App.4th 1456, 1462, fn. 8, disapproved on another point in People
v. Mesa (2012) 54 Cal.4th 191, 199.)
       “Review on appeal of the sufficiency of the evidence supporting the finding of
premeditated and deliberate murder involves consideration of the evidence presented and
all logical inferences from that evidence in light of the legal definition of premeditation
and deliberation . . . . Settled principles of appellate review require us to review the
entire record in the light most favorable to the judgment below to determine whether it
discloses substantial evidence—that is, evidence which is reasonable, credible, and of
solid value—from which a reasonable trier of fact could find that the defendant
premeditated and deliberated beyond a reasonable doubt. [Citations.]” (People v. Perez
(1992) 2 Cal.4th 1117, 1124 (Perez).) The hurdle to secure a reversal is just as high
when the prosecution‟s case depends on circumstantial evidence. (People v. Stanley
(1995) 10 Cal.4th 764, 792.) As long as there is reasonable justification for the findings



                                             14
made by the trier of fact, a reviewing court‟s opinion that contrary findings might also
have been reasonable does not require a reversal. (Id. at p. 793.)
       There are three basic, but not exhaustive, categories of evidence that will sustain a
finding of premeditation and deliberation: (1) planning activity; (2) motive; and (3)
manner of the killing. (People v. Anderson (1968) 70 Cal.2d 15, 26-27 (Anderson); see
also Perez, supra, 2 Cal.4th at p. 1125.) These factors are not elements that need be
present to sustain a finding of premeditation and deliberation and are by no means the
exclusive means of showing premeditation. (Perez, at p. 1125; see also People v. Pride
(1992) 3 Cal.4th 195, 247.) 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 Perez, at p. 1125; People v. Thomas (1992) 2
Cal.4th 489, 517.)
       CALJIC No. 8.20 has been held to correctly define “deliberate and premeditated
murder.” (People v. Goldbach (1972) 27 Cal.App.3d 563, 569.) CALJIC No. 8.67,
which addresses willful, deliberate, and premeditated attempted murder is almost
identical to CALJIC No. 8.20 and defines the terms in the same manner. CALJIC No.
8.67 defines “willful” to mean “intentional,” and “deliberate” to mean “formed or arrived
at or determined upon as a result of careful thought and weighing of considerations for
and against the proposed course of action.” The word “premeditated” means “considered
beforehand.” CALJIC No. 8.67 instructed the jury that “[t]o constitute willful, deliberate,
and premeditated attempted murder, the would-be slayer must weigh and consider the
question of killing and the reasons for and against such a choice and, having in mind the
consequences, decides to kill and makes a direct but ineffectual act to kill another human
being.” The instruction also states: “The true test is not the duration of time, but rather
the extent of the reflection. A cold, calculated judgment and decision may be arrived at
in a short period of time, but a mere unconsidered and rash impulse, even though it
includes an intent to kill, is not deliberation and premeditation.”




                                             15
       C. Evidence Sufficient
       Fletcher particularly disputes the existence of the first and second Anderson
factors, which focus on planning activity and motive on the part of the perpetrator. We
disagree with Fletcher and believe there is ample evidence from which a reasonable jury
could conclude that Fletcher acted willfully and with premeditation and deliberation.
       With respect to planning activity, Fletcher armed himself with a firearm and rode
with a companion into the territory of a gang with which his gang was at war. Fletcher is
a Geer Gang Crip, and the territory where Campos lived was claimed as the territory of
the 18th Street Blood gang. When they were within 15 feet of Campos, they shouted
“Fuck the 18th Street” and began shooting at Campos. A reasonable jury could infer that
this excursion into enemy territory by Fletcher and his companion was planned.
Although Fletcher presented evidence that he had a “pass” to go into 18th Street territory,
a reasonable jury could conclude that Fletcher had no purpose for being in the area except
to search for a victim. In any event, the fact that he shouted “Fuck the 18th Street” before
shooting at Campos demonstrates that he had a preconceived willingness to shoot at his
victim, regardless of how long he deliberated his action. As the jury was instructed,
premeditation and deliberation are not measured by the duration of time. (People v. Bolin
(1998) 18 Cal.4th 297, 332; CALJIC No. 8.20.) CALJIC No. 8.67 informed the jury that:
“The law does not undertake to measure in units of time the length of the period during
which the thought must be pondered before it can ripen into an intent to kill which is
truly deliberate and premeditated. The time will vary with different individuals and
under varying circumstances.” Fletcher may have arrived at his decision to commit the
act in a short period of time, but his act does not bear the characteristics of a rash
impulse. (See People v. Sanchez (2001) 26 Cal.4th 834, 849 [in context of shooting
between two armed rival gang members, premeditation can be established even though
the time between sighting and shooting is very brief].)
       Moreover, Fletcher took care not to use his own car in the shooting, and he fled
after the victim ran for cover. (See People v. Morris (1988) 46 Cal.3d 1, 23 [defendant‟s
possession of a weapon in advance of the shooting and his rapid escape support inference

                                              16
of planning activity], disapproved on another point in In re Sassounian (1995) 9 Cal.4th
535, 543-544, fn. 5.) Although there was no evidence of a specific plot, the fact that
elaborate planning activity is not in evidence does not foreclose a finding of sufficient
evidence of premeditation. (People v. Millwee (1998) 18 Cal.4th 96, 134.)
       Furthermore, there was sufficient evidence of motive supplied by Fletcher‟s
shouted slogan, which showed that the shooting was intended to enhance the power and
status of his gang over that of the 18th Street gang. At the time of the shooting, his gang
and the 18th Street gang were enemies. When given a hypothetical that mirrored the
facts of the Campos shooting, the gang expert testified that a shooting of this type
“absolutely was for the benefit of the gang.” The shooter and the driver were
“establishing themselves” and yelling out the gang name for the victim and other
members of the community to hear. The fact that African-American gang members from
the Geer Gang were “rolling through” and shooting at Hispanics raised the fear level of
the community and raised the status of the Geer Gang, showing other gangs and the
neighborhood residents that they are dominant. Although no personal motive for
shooting Campos in particular was shown, the absence of such a motive is not
dispositive. (See People v. Thomas, supra, 2 Cal.4th at p. 519 [even a random, but
premeditated, killing supports a verdict of first degree murder].)
       The nature of the attempted killing also showed premeditation and deliberation.
Fletcher fired at Campos and hit him in the back from a distance of approximately
15 feet. This demonstrates that, although Fletcher may not be a good marksman, “the
manner of killing was so particular and exacting that the defendant must have
intentionally killed [or attempted to kill] according to a „preconceived design.‟”
(Anderson, supra, 70 Cal.2d at p.27; see also People v. Caro (1988) 46 Cal.3d 1035,
1050.) It has been held that the method of killing alone may be sufficient to find
premeditation and deliberation. (People v. Memro (1995) 11 Cal.4th 786, 863-864,
disapproved on another point in People v. McKinnon (2011) 52 Cal.4th 610, 639.)




                                             17
       Under these criteria, the jury reasonably determined that the shooting of Campos
was premeditated and deliberate. Fletcher‟s argument that there was insufficient
evidence of premeditation and deliberation is without merit.
II. Sufficiency of the Evidence of Willful, Deliberate, and Premeditated Attempted
Murder (Counts 2 and 3)
       A. Burke’s Argument
       Burke contends that there was no evidence of planning activity or motive in the
shootings of Mario and Erwin. According to Burke, there was also no evidence that the
nature of the shootings established premeditation and deliberation. Therefore, there was
insufficient evidence of premeditation and deliberation, and the true findings must be
reversed.
       B. Relevant Authority
       In the first portion of this opinion, we recite authority relevant to the issues of
premeditation and deliberation with respect to attempted murder.
       C. Evidence Sufficient
       According to Burke, although the prosecutor suggested that Burke went into the
18th Street gang‟s territory looking to shoot a rival gang member, there is no evidence to
support that theory. There is no evidence Burke drove to Westhaven Street looking to
shoot anyone at all. In addition, the brief time it took for the incident to unfold does not
support a reasonable inference that Burke had formed and was carrying out a plan. There
was no evidence that Burke brought the gun with him for the purpose of shooting
someone. With respect to motive, the record is devoid of evidence establishing a motive
to kill, and in fact establishes the opposite, since Mario testified that he and Burke were
former friends. Burke did not know Erwin and thus had no motive to kill him either.
Moreover, Erwin and Mario approached Burke, and his statement (“That‟s them . . .”)
showed he believed he was being ambushed by rival gang members. He was hastily
reacting to a rapidly unfolding situation. Finally, Burke asserts that he fired in a
haphazard manner, and the manner in which the shooting occurred fits the description of
a rash and impulsive shooting without deliberation or reflection.

                                              18
       We disagree and conclude that the record provided substantial evidence of
premeditation and deliberation on the part of Burke and his co-perpetrators. Mario and
Erwin were not gang members and were unarmed. They were merely trying to return
home when they encountered what amounted to a roadblock. As Erwin stated, he moved
the Explorer closer to the obstructing vehicles so that whoever was blocking the street
could see that he was trying to get through. Three African-American males approached
Erwin‟s car. One pulled out a gun and shot at him and his cousin, Mario, and then the
others began shooting at them also. One of the bullets scraped Erwin‟s forehead. Before
the first man shot, he asked Mario what they were doing there. Mario said they were
going home, and the man said, “Just leave.” When Erwin began to reverse, another man,
later identified as Burke, got out of a car and said, “Yeah. It‟s them,” and “They‟re from
18th Street.”
       The fact that Burke stated, “It‟s them,” indicates that the shooting that ensued was
enough of a considered decision to be classified as premeditated and deliberate rather
than a rash act. The fact that the incident happened very quickly does not preclude
premeditation and deliberation on Burke‟s part, especially when Burke identified the
cousins as rival gang members. (See People v. Sanchez, supra, 26 Cal.4th at p. 849.) A
cold, calculated judgment may be arrived at quickly. (People v. Bolin, supra, 18 Cal.4th
at p. 332.) Moreover, the jury could have reasonably drawn the conclusion that the street
was partially blocked as part of a plan to slow down cars in order to identify rival gang
members. Deputy Dilkes testified that the intersection where the shooting occurred was a
“stronghold” of the 18th Street gang. Burke‟s statement that, “They‟re from 18th Street”
is clearly indicative of a gang motive on his part. Finally, the manner of the shooting
decisively reflects premeditation and deliberation. A total of 17 bullets were fired at the
two unarmed men by three persons. According to Mario, this occurred while Erwin was
reversing his vehicle in order to get away. Mario was hit in the torso and Erwin came
extremely close to getting a bullet in the head. The shooting was anything but haphazard.
No reasonable jury could have believed that the three men, including Burke, believed
they were about to be ambushed. Erwin purposely made himself visible so that he might

                                             19
be able to pass the stopped vehicles, and neither Mario nor Erwin brandished a weapon or
said anything to the waiting men except that they wanted to go home.
       Burke‟s argument is without merit, and there was sufficient evidence that the
attempted murders were willful, premeditated and deliberate.
III. Alleged Ineffective Assistance of Burke’s Counsel
       A. Burke’s Argument
       Burke asserts that, if this court does not reverse the true finding on the
premeditation and deliberation enhancement in counts 2 and 3 for insufficient evidence,
the finding must nevertheless be reversed because Burke was denied his Sixth
Amendment right to effective counsel. Burke contends his trial counsel was prejudicially
ineffective in not requesting an instruction on provocation and subjective heat of passion
in the form of CALJIC No. 8.736 and in failing to argue for a second degree attempted
murder conviction based on unreasonable heat of passion. Counsel‟s ineffectiveness was
prejudicial because it resulted in the withdrawal of a potentially meritorious defense.
       B. Relevant Authority
       Provocation that is insufficient to reduce murder to manslaughter may be
sufficient to reduce first degree murder to second degree murder. (See People v. Thomas
(1945) 25 Cal.2d 880, 903.) Only the defendant‟s subjective state of mind must be
considered in determining whether provocation resulting in heat of passion precluded
deliberation and premeditation. (People v. Padilla (2002) 103 Cal.App.4th 675, 678.) A
defendant must show not only that he was provoked but that he acted while his reason
was obscured by passion at the time of the act. (People v. Sedeno (1974) 10 Cal.3d 703,
719, disapproved on another point in People v. Blakeley (2000) 23 Cal.4th 82, 89.)



6      CALJIC No. 8.73 provides, “If the evidence establishes that there was provocation
which played a part in inducing an unlawful killing of a human being, but the provocation
was not sufficient to reduce the homicide to manslaughter, you should consider the
provocation for the bearing it may have on whether the defendant killed with or without
deliberation and premeditation.”


                                             20
       “The standards for ineffective assistance of counsel claims are well established.
„We presume that counsel rendered adequate assistance and exercised reasonable
professional judgment in making significant trial decisions.‟ [Citation.] To establish a
meritorious claim of ineffective assistance, defendant „must establish either: (1) As a
result of counsel‟s performance, the prosecution‟s case was not subjected to meaningful
adversarial testing, in which case there is a presumption that the result is unreliable and
prejudice need not be affirmatively shown [citations] or (2) counsel‟s performance fell
below an objective standard of reasonableness under prevailing professional norms, and
there is a reasonable probability that, but for counsel‟s unprofessional errors and/or
omissions, the trial would have resulted in a more favorable outcome. [Citations].‟
[Citation.]” (People v. Prieto (2003) 30 Cal.4th 226, 261.) Also, “if the record does not
preclude a satisfactory explanation for counsel‟s actions, we will not, on appeal, find that
trial counsel acted deficiently.” (People v. Stewart (2004) 33 Cal.4th 425, 459; People v.
Mendoza Tello (1997) 15 Cal.4th 264, 266.)
       C. No Ineffective Assistance
       Burke asserts that the evidence supports a verdict of second degree attempted
murder because Erwin and Mario “drove up on him and his friends in the middle of the
night.” According to Burke, his statement (“That‟s them. They‟re 18th Street.”)
demonstrates his belief that he and his friends were being ambushed. Because the vehicle
was positioned with the headlights pointed at Burke and his companions, Erwin and
Mario had a visual advantage. Under these circumstances, and considering the gang
rivalry, Burke could have interpreted this conduct as a provocative act. Burke repeats
that he fired quickly and in a haphazard manner and asserts this is consistent with
someone acting in a heat of passion.
       Burke additionally argues that merely trying to impeach Mario‟s identification of
Burke was not a reasonable defense, since Mario had no motive to implicate Burke, with
whom he was familiar, in the shooting. This defense left the jury with the unreasonable
choice between first degree attempted murder and an acquittal. Competent counsel
would have disputed premeditation and deliberation rather than gamble on an acquittal,

                                             21
and such an unsound strategy is not entitled to deference. Burke contends that the jury
would have returned a verdict of second degree attempted murder had counsel requested
the provocation instruction and argued that Burke was subjectively under the heat of
passion when he fired.
       At the outset, in presenting a defense of mistaken identity to the jury, defense
counsel argued vehemently that Mario had lied about his identification of Burke.
Counsel pointed out that nothing corroborated Mario‟s identification and that Mario had
denied three times that he recognized any of the shooters. He argued that Burke knew
Mario was not a member of the 18th Street gang and had no reason to harm him.
Counsel argued that there was possibly someone else with light skin who might be a gang
member and who would say something about 18th Street and start shooting. All of these
arguments would have rung hollow had defense counsel then argued that Burke was
provoked and shot at the cousins in a heat of passion. It is not an unreasonable tactic for
counsel to forgo presenting an inconsistent defense theory to the jury. (See People v.
Weaver (2001) 26 Cal.4th 876, 927; People v. Wader (1993) 5 Cal.4th 610, 643.) There
was stronger evidence in support of defense counsel‟s chosen theory than of any
provocation by Erwin or Mario.
       In any event, to warrant the reading of CALJIC No. 8.73, there must be substantial
evidence from which the jury could find the decision to kill was a direct and immediate
response to provocation such that the defendant acted without premeditation and
deliberation. (See People v. Fenenbock (1996) 46 Cal.App.4th 1688, 1705; People v.
Wickersham (1982) 32 Cal.3d 307, 329, disapproved on another point in People v. Barton
(1995) 12 Cal.4th 186, 200.) In the instant case there was no evidence of any conduct by
Erwin or Mario that could be classified as provocative or that would evoke an emotional
reaction from Burke. As discussed ante, Erwin merely slowed his vehicle to see if one of
the obstructing vehicles would move and let him pass. It was someone in Burke‟s group
who initiated contact by approaching Erwin‟s car and asking Erwin and Mario what they
were doing there. Mario explained that they were going home, and the man on the
sidewalk told Mario and Erwin to leave. As Erwin began to retreat, Burke got out of a

                                             22
car, said “That‟s them” and began firing along with the co-perpetrators. No reasonable
juror would find that the act of retreating could be interpreted as a provocative act.
          Additionally, Burke suffered no prejudice from the lack of an instruction on
provocation. With CALJIC No. 8.66, the trial court instructed the jury on attempted
murder and, using CALJIC No. 8.67, on attempted willful, deliberate, and premeditated
murder. The premeditation allegation was separate from the attempted murder charge,
and the jury was not obliged to find that it was true. Pursuant to CALJIC No. 8.67, the
jury was instructed that the prosecution had to prove beyond a reasonable doubt that
Burke acted willfully and with deliberation and premeditation. CALJIC No. 8.67 defined
“deliberate” as “formed or arrived at or determined upon as a result of careful thought
and weighing of considerations for and against the proposed course of action,” and
defined “premeditated” as “considered beforehand.” Further, the instruction required the
jury to find a deliberate intent to kill that was “not under a sudden heat of passion,” and it
explained that “a mere unconsidered and rash impulse, even though it includes an intent
to kill, is not deliberation and premeditation.” A jury is presumed to contain intelligent
persons capable of understanding and correlating all instructions. (People v. Matshon
(2012) 210 Cal.App.4th 1297, 1311-1312.) Under the instructions given, the jury, by
finding premeditation, rejected the notion that the conditions of the encounter between
the Alvarado cousins and Burke prevented Burke from acting with premeditation and
deliberation. An instruction specifically directing the jury it could consider provocation
in determining whether Burke deliberated and premeditated would not have altered the
result.
          Finally, the jury found true the allegation that Burke committed the offense for the
benefit of, at the direction of, or in association with a criminal street gang and with the
specific intent to promote, further, or assist in any criminal conduct by gang members.
(CALJIC No. 17.24.2.) This clearly indicated that the jury would have rejected any claim
by Burke that he shot at Mario and Erwin because of an unconsidered impulse when he
thought he was about to be attacked.



                                               23
       In sum, the record in the instant case does not preclude a satisfactory explanation
for counsel‟s reliance on the mistaken identity defense and for failure to request an
instruction on provocation. (People v. Stewart, supra, 33 Cal.4th at p. 459.) Moreover,
Burke suffered no prejudice from counsel‟s tactics. Therefore, we conclude counsel was
not ineffective.
IV. Fletcher’s Credit Days
       A. Fletcher’s Argument
       Fletcher points out that he was arrested on December 14, 2007, and he remained in
custody until sentenced on July 11, 2011. He argues that he should have received 1,306
actual custody days instead of 1,304.
       B. Additional Credit Days Warranted
       Fletcher is correct that the actual number of days he spent in custody was 1,306.
This includes the day of his arrest and the day of his sentencing. (See People v. Smith
(1989) 211 Cal.App.3d 523, 526.) Having been convicted of a violent felony, Fletcher is
entitled to conduct credits at 15 percent of his actual days in custody. (§§ 667.5, subds.
(c)(1), (12), 2933.1.) Accordingly, he is to be granted local conduct credit of 195 days,
for a total of 1,501 days of presentence custody credit.




                                             24
                                      DISPOSITION
       The judgment is modified in Fletcher‟s case to award him two additional days of
actual custody credit for a total of 1,306 actual days. In addition, Fletcher is entitled to
195 days of conduct credit for a total of 1,501 days of presentence custody credit. In all
other respects, the judgments are affirmed.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           BOREN, P.J.
We concur:


       CHAVEZ, J.


       FERNS, J.*




_______________________________________________________________

*     Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.


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