Filed 3/9/16 P. v. Jenkins CA5




                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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

                                       FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                                           F069275
         Plaintiff and Respondent,
                                                                              (Super. Ct. No. 13CM2857)
                   v.

JAMES DEAN JENKINS,                                                                      OPINION
         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Kings County. Donna L.
Tarter, Judge.
         John Hardesty, under appointment by the Court of Appeal, for Defendant and
Appellant.
         Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Daniel B. Bernstein and
Jennifer M. Poe, Deputy Attorneys General, for Plaintiff and Respondent.
                                                        -ooOoo-
                                    INTRODUCTION
       Defendant James Dean Jenkins challenges his conviction for attempted
premeditated murder of a peace officer. The events giving rise to the multiple charges
against him arose from a traffic stop and subsequent high-speed vehicle pursuit on the
night of June 3, 2013. Defendant was charged with five felony counts: attempted
premeditated murder of a peace officer in violation of Penal Code sections 664,
subdivisions (e) and (f), and 187, subdivision (a), (count 1); two counts of assault with a
deadly weapon on a peace officer in violation of Penal Code section 245, subdivision (c),
(counts 2 and 3); one count of operating a motor vehicle with willful or wanton disregard
for the safety of persons while fleeing from a pursuing police officer in violation of
Vehicle Code section 2800.2, subdivision (a), (count 4); and one count of willfully
operating a motor vehicle in a direction opposite to lawful traffic during flight from a
pursuing peace officer in violation of Vehicle Code section 2800.4 (count 5). Defendant
was also charged with six misdemeanors and one infraction (counts 6 through 12). As to
counts 1 through 5, the information alleged that defendant suffered three prison priors
pursuant to Penal Code section 667.5, subdivision (b); and as to counts 7 through 9, the
information alleged that he suffered a prior conviction for driving with a suspended
license in violation of Vehicle Code section 14601.1. The amended information alleged a
prior serious felony pursuant to the three strikes law (Pen. Code, §§ 667, subds. (b)–(i),
1170.12, subds. (a)–(d)) as to counts 1 through 5.
       The trial court granted the prosecution’s motion to dismiss counts 8 and 9, and the
parties agreed the trial court would decide count 12, the infraction. The jury convicted
defendant of counts 1 through 7, 10, and 11. In a bifurcated proceeding, defendant
waived jury trial on the prior allegations, and the trial court found the three prison term
enhancements true and the prior strike conviction not true. Defendant was sentenced to
an indeterminate sentence of 15 years to life on count 1. The court imposed consecutive
sentences of five years (upper term) on count 3, and eight months on each of counts 4 and

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5 (one-third of two-year midterm), for a total of six years four months. Defendant
received credit for time served on counts 6, 7, and 10. The sentences for counts 2 and 11
were stayed pursuant to Penal Code section 654, and he was fined $100 for count 12 (the
infraction). He was also sentenced to one additional year for each prison prior, resulting
in a total aggregate determinate sentence of nine years four months.
       On appeal, defendant argues there was insufficient evidence to support his
conviction for attempted premediated murder (count 1) and the prosecutor committed
misconduct by misstating the law as well as introducing facts not in evidence.
       We affirm the judgment.
                                   FACTUAL SUMMARY
       Through testimony by the two deputies involved, the People presented the
following evidence concerning the traffic stop and subsequent vehicle pursuit.1 On
June 3, 2013, at approximately 9:00 p.m., Kings County Sheriff’s Deputy Cole Souza
was on assigned patrol in the area of Kansas Avenue and State Route 43, a rural area.
Souza was in uniform and driving a marked patrol car with overhead lights. Following
his completion of a traffic stop involving another vehicle, Souza pulled up behind a 1975
Ford Maverick stopped at a red stoplight on Kansas Avenue. Souza noticed the vehicle’s
registration tags were expired and he ran the plate through the county dispatch center,
which confirmed the registration for that vehicle was expired. When the light changed
from red to green, Souza activated his overhead emergency lights to initiate a traffic stop.
The vehicle yielded and pulled over on the shoulder. Souza exited his patrol car,
approached the driver’s side window, identified himself as a deputy sheriff, stated he
stopped the driver for expired registration, and asked for the driver’s license, proof of
insurance and registration. Defendant stated he had just purchased the vehicle, he did not
yet have insurance, and he did not have his driver’s license on him but he had one,

1        Defendant elected not to testify at trial. His witnesses were his wife, Laurie Jenkins, who
testified as an alibi witness, and Deputy Souza.


                                                 3.
although he believed it was expired. Defendant provided a name of James G. Buchholtz
and a birthdate of April 29, 1968. Souza returned to his patrol car and ran the
information, which did not match a driver’s license. Souza returned to the Maverick and
informed defendant he did not believe he was being truthful. Defendant hung his head,
admitted to giving Souza a false name, and said he might have a misdemeanor warrant
out of Tulare County. Souza told defendant that misdemeanor warrants did not
necessarily require being jailed and due to jail overcrowding, “a lot of times” he was able
to issue just a ticket and a new court date. Defendant then told Souza his name was
James Dean Jenkins and his birthdate was April 29, 1969, and he provided a driver’s
license number from memory. Remaining by the driver’s side window, Souza relayed
the information to the dispatcher and was informed there were two warrants out for
defendant’s arrest, one of which was a no bail warrant.
       Souza ordered defendant to step out of the car. Defendant did not comply and
asked if he was being taken in. Souza informed him he was under arrest and going to jail.
Souza again ordered him to get out of the car. Defendant began revving the motor at a
very high RPM while looking Souza directly in the eyes. Defendant ignored Souza’s
repeated commands to shut off the car and get out, and repeatedly revved the motor.
Souza then attempted to pull defendant from the vehicle through the driver’s side window
by grabbing his left arm with both hands. However, defendant moved toward the center
of the car and began to reach under the seat with his right hand. In Souza’s experience, it
is very common for people to keep firearms under the seat and, fearing defendant might
be reaching for a gun, he took one or two steps back from the vehicle and withdrew his
firearm from its holster. Souza yelled at defendant that he was under arrest, and to shut
off the car and get out. With the motor still revved up to a high RPM, defendant took off,
the wheels of his car burning out and kicking up a lot of dust and debris. Defendant
made a U-turn in the road and headed in the opposite direction. Souza holstered his
weapon, radioed dispatch, and began pursuing the car with his lights flashing. At that

                                            4.
point, approximately five minutes had elapsed since Souza first pulled defendant’s car
over.
        Kansas Avenue was a rural, undivided two-lane road with a speed limit of
55 miles per hour. It was dark at 9:00 p.m. and there were few street lights in the area.
After defendant took off with Souza in pursuit, they reached speeds between 90 and 100
miles per hour. Two or three times, defendant turned off his vehicle’s lights, leaving the
car completely dark and undetectable to passing motorists, and crossed over into the
oncoming traffic lane. On two or three occasions, oncoming vehicles were forced to
make sudden turns and leave the roadway to avoid being hit head-on by defendant. One
incident involved a Jeep Grand Cherokee and another incident involved a big rig truck,
which fishtailed and went off the road when the driver had to lock up his brakes suddenly
to avoid defendant, who was traveling with his headlights off at the time. Defendant
subsequently turned on Road 28. The speed limit remained at 55 miles per hour, and the
pursuit continued at between 90 and 100 miles per hour. Approximately one-half mile
along Road 28, defendant slammed on his brakes for no apparent reason, causing Souza
to have to lock up his brakes to avoid colliding with the rear of defendant’s car. The
chase then continued down a dry, dusty farming access road. Defendant’s vehicle was
kicking up so much dust that Souza could not see the front of his car. At that point,
Souza turned off his flashing lights and siren and proceeded at a slow pace. Souza caught
up to the Maverick again when it turned on Road 36, and he picked up the pursuit and
notified dispatch.
        Defendant and Souza continued to travel at speeds averaging between 80 and
90 miles per hour. Defendant repeatedly turned his lights on and off and drove in and out
of his traffic lane. After defendant turned on Avenue 248, he drove onto a residential
property with a dirt driveway. Defendant continued toward a shop area on the property
and began spinning “brodies” in the dirt, kicking up so much dust that Souza could not
see anything. Periodically, Souza could see defendant’s headlights and taillights through

                                             5.
the dust, followed by loss of visibility due to thick dust in the air. Souza cracked his
window and could hear defendant revving the motor. During one of the revolutions,
defendant’s car came within a few feet of hitting Souza’s patrol car. Defendant
eventually made his way back onto the roadway, with Souza following behind once he
realized defendant had left the residential property.
       Kings County Sheriff’s Deputy W. Brabant, Jr., was also on duty that night,
patrolling an area approximately eight miles from Souza’s pursuit of defendant. At
9:35 p.m., he headed toward Souza’s location to assist with the pursuit. Brabant was also
in a marked patrol car, and the flashing lights and siren were activated. He was traveling
at approximately 80 miles per hour when he caught sight of a silhouette in the dark.
Once his headlights caught the silhouette, he saw it was a vehicle traveling toward him.
When the unlit vehicle was approximately 100 to 150 yards away from him, the driver
switched on the headlights and swerved into Brabant’s traffic lane, coming toward him
head-on. Brabant reflexively jerked the steering wheel to the right and his patrol car went
onto the shoulder of the road. Brabant lost some control of the car due to the loose dirt
on the shoulder and he saw he was heading directly for a power pole. Brabant “whipped
the wheel” back to the left to regain control. Defendant’s vehicle remained on the wrong
side of the road in Brabant’s lane. Brabant did not observe brake lights and he heard the
vehicle continue to accelerate away, building speed.
       After Brabant was back on the roadway, he was the first vehicle in pursuit of
defendant, with Souza following behind.2 Brabant could see a 1970’s model Ford
Maverick, subsequently identified as defendant’s, ahead of him traveling at
approximately 100 miles per hour. Souza and Brabant continued pursuing defendant at
speeds between 60 and 70 miles per hour. Defendant continued to turn his lights on and


2       Brabant was a K-9 handler, and K-9 units generally take the first position in a vehicle
pursuit, in the event the dog is needed to apprehend a fleeing driver.


                                                6.
off and cross over into the oncoming traffic lane. After turning on yet another road,
defendant ran a stop sign in excess of 100 miles per hour. Defendant then turned on
another dirt road and kicked up so much thick dust that Souza and Brabant were forced to
discontinue the pursuit. It was approximately 10:00 p.m. when they discontinued their
pursuit of defendant. Souza, Brabant, and other law enforcement officers subsequently
canvassed the area for defendant, without success.
       When Souza returned to the substation that night, he pulled up the DMV photo on
the computer using the information defendant had provided during the traffic stop. The
photo for James Dean Jenkins matched the driver he had been pursuing in the Maverick.
Several hours later, Souza was notified by a Tulare County Police Department sergeant
that defendant’s vehicle had been located behind a Walmart in Tulare.
                                       DISCUSSION
I.     Sufficiency of the Evidence
       Defendant was convicted of the willful, deliberate, and premediated attempted
murder of Deputy Brabant (count 1). As to this count, he argues that the evidence was
insufficient to support the jury’s findings of either intent to kill or deliberation and
premeditation.
       A.     Standard of Review
       On appeal, the relevant inquiry governing a challenge to the sufficiency of the
evidence “‘is whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’ [Citation.]” (People v. Nguyen (2015) 61 Cal.4th 1015,
1055.) “The record must disclose substantial evidence to support the verdict—i.e.,
evidence that is reasonable, credible, and of solid value—such that a reasonable trier of
fact could find the defendant guilty beyond a reasonable doubt. [Citation.]” (People v.
Zamudio (2008) 43 Cal.4th 327, 357.) “In applying this test, we review the evidence in
the light most favorable to the prosecution and presume in support of the judgment the

                                               7.
existence of every fact the jury could reasonably have deduced from the evidence.
[Citation.]” (Ibid.) “‘[I]t is the jury, not the appellate court which must be convinced of
the defendant’s guilt .…’ [Citation.]” (People v. Nguyen, supra, at pp. 1055–1056.) “A
reversal for insufficient evidence ‘is unwarranted unless it appears “that upon no
hypothesis whatever is there sufficient substantial evidence to support”’ the jury’s
verdict. [Citation.]” (People v. Zamudio, supra, at p. 357.)
       B.     Specific Intent to Kill
       Unlike murder, “attempted murder is not divided into degrees, but the sentence
can be enhanced if the attempt to kill was committed with premeditation and deliberation.
[Citation.]” (People v. Gonzalez (2012) 54 Cal.4th 643, 654.) Attempted murder
requires specific intent to kill, or express malice, “‘and the commission of a direct but
ineffectual act toward accomplishing the intended killing.’ [Citations.]” (People v. Smith
(2005) 37 Cal.4th 733, 739.) Express malice is shown when the defendant “‘either
desires the victim’s death, or knows to a substantial certainty that the victim’s death will
occur.’ [Citation.]” (People v. Houston (2012) 54 Cal.4th 1186, 1217.) “[E]vidence of
motive is often probative of intent to kill,” but it “is not required to establish intent to
kill.” (People v. Smith, supra, at p. 741.) Intent “may in many cases be inferred from the
defendant’s acts and the circumstances of the crime.” (Ibid.)
       Deputy Brabant testified that he was driving along a rural two-lane road at
approximately 80 miles an hour with his patrol car emergency lights and siren activated.
It was nighttime and the area was completely dark. Brabant caught sight of a silhouette
in the road, and a vehicle’s headlights then turned on and it crossed over into Brabant’s
lane, moving straight toward him, head-on and at high speed. Brabant reflexively yanked
the wheel to the right, avoiding a collision.
       The jury could have reasonably inferred from the events that defendant was in full
control of his vehicle, was well aware Brabant was approaching at a high speed, and
intentionally concealed his vehicle’s visibility by keeping the lights off until Brabant was

                                                8.
approximately 100 to 150 yards away, at which time he changed lanes and aimed directly
for Brabant’s rapidly approaching car. Further, given these actions and the high speed
involved, the jury could have reasonably inferred that defendant desired to kill Brabant,
or knew to a substantial certainly that Brabant’s death would occur. That Brabant “may
have escaped death” in a head-on collision by virtue of his reflexive reaction in jerking
his steering wheel to the right does not “necessarily establish a less culpable state of
mind.” (People v. Lashley (1991) 1 Cal.App.4th 938, 945.) Even if these facts might be
reconcilable with a contrary finding, as defendant argues, that is not grounds for reversal.
(People v. Booker (2011) 51 Cal.4th 141, 172). There was sufficient evidence to support
defendant’s conviction for attempted murder, and the jury’s finding is affirmed.
       C.     Deliberation and Premeditation
       Defendant next argues there was insufficient evidence to support the enhancement
for deliberate, premediated attempted murder of a peace officer. More than a specific
intent to kill is required to support a finding of deliberation and premeditation. (People v.
Koontz (2002) 27 Cal.4th 1041, 1080.) “‘Deliberation’ refers to careful weighing of
considerations in forming a course of action; ‘premeditation’ means thought over in
advance. [Citations.]” (Ibid.) “‘The process of premeditation and deliberation does not
require any extended period of time. “The true test is not the duration of time as much as
it is the extent of the reflection. Thoughts may follow each other with great rapidity and
cold, calculated judgment may be arrived at quickly.…” [Citations.]’ [Citation.]” (Ibid.)
       “In People v. Anderson (1968) 70 Cal.2d 15, 26–27, [the Supreme Court]
reviewed earlier decisions and developed guidelines to aid reviewing courts in assessing
the sufficiency of evidence to sustain findings of premeditation and deliberation.
[Citation.] [The court] described three categories of evidence recurring in those cases:
planning, motive, and manner of killing. [Citations.]” (People v. Halvorsen (2007) 42
Cal.4th 379, 419–420.) “[H]owever, ‘[u]nreflective reliance on Anderson for a definition
of premeditation is inappropriate.’” (People v. Koontz, supra, 27 Cal.4th at p. 1081.)

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The “guidelines are descriptive and neither normative nor exhaustive, and … reviewing
courts need not accord them any particular weight. [Citation.]” (People v. Halvorsen,
supra, at p. 420.)
       Here, defendant’s actions toward Deputy Brabant occurred approximately
30 minutes after he fled the scene of the traffic stop and during the course of a high-speed
pursuit that lasted approximately one hour. Prior to changing lanes and speeding directly
toward Brabant, defendant had repeatedly turned his headlights off and on, changed lanes
into the oncoming traffic lane, and caused two vehicles to swerve to avoid being hit by
him head-on. Given the extended passage of time that occurred prior to encountering
Brabant and defendant’s engagement in similar conduct during that time period, there
was sufficient evidence from which a reasonable jury could have concluded that
defendant reflected on his options and determined he would evade capture even at the
cost of life, including his own. This demonstrates planning.
       Evidence of motive is also present. Defendant thought he might have a warrant
out for his arrest and, immediately prior to his flight from Deputy Souza, he had been told
to get out of the car because he was under arrest. The ensuing high speed chase resulted
from defendant’s determination to avoid arrest, and, contrary to his argument, it is
immaterial that he did not know Brabant personally or know the identity of the patrol
car’s driver. (See People v. Stone (2009) 46 Cal.4th 131, 139.) Given the dark
conditions and the approaching patrol car’s flashing emergency lights and wailing siren,
defendant knew the car coming toward him was a law enforcement vehicle, supporting a
reasonable inference that defendant’s actions in changing lanes and driving directly
toward the car at high speed were motivated by his determination to avoid apprehension.
       In sum, although the Anderson factors “‘are not a sine qua non … nor are they
exclusive’” (People v. Koontz, supra, 27 Cal.4th at p. 1081), we nonetheless reject




                                            10.
defendant’s argument that there was insufficient evidence as to any of the factors.3 To
the contrary, there was evidence of planning (factor 1) and motive (factor 2) from which
a reasonable jury could have concluded that defendant’s action toward Brabant “‘was the
result of “a preexisting reflection” and “careful thought and weighing of considerations”
rather than “mere unconsidered or rash impulse hastily executed” [citation] .…’” (People
v. Koontz, supra, at p. 1081.) “[A] killing resulting from preexisting reflection, of any
duration, is readily distinguishable from a killing based on unconsidered or rash
impulse.” (People v. Solomon (2010) 49 Cal.4th 792, 813.) Here, evidence of the
timeline of the events and the specific actions taken by defendant is sufficient to support
the jury’s finding of willful, deliberate, and premeditated attempted murder, and the
finding is affirmed.
II.    Prosecutorial Misconduct
       Defendant also argues on appeal that the prosecutor committed misconduct by
misstating the law and introducing facts not in evidence during closing argument, in
violation of his federal right to due process and right to a fair trial.
       A.      Standard of Review
       “‘When a prosecutor’s intemperate behavior is sufficiently egregious that it infects
the trial with such a degree of unfairness as to render the subsequent conviction a denial
of due process, the federal Constitution is violated. Prosecutorial misconduct that falls
short of rendering the trial fundamentally unfair may still constitute misconduct under
state law if it involves the use of deceptive or reprehensible methods to persuade the trial
court or the jury.’ [Citation.]” (People v. Jablonski (2006) 37 Cal.4th 774, 835.) “When
attacking the prosecutor’s remarks to the jury, the defendant must show that, ‘[i]n the
context of the whole argument and the instructions’ [citation], there was ‘a reasonable

3       Respondent concedes the inapplicability of factor 3, manner of killing. We agree the
facts do not evidence “a manner of killing that reflects a preconceived design to kill.” (People v.
Gonzalez, supra, 54 Cal.4th at pp. 663–664.)


                                                11.
likelihood the jury understood or applied the complained-of comments in an improper or
erroneous manner. [Citations.] In conducting this inquiry, we “do not lightly infer” that
the jury drew the most damaging rather than the least damaging meaning from the
prosecutor's statements. [Citation.]’ [Citations.]” (People v. Centeno (2014) 60 Cal.4th
659, 667.)
       “‘As a general rule a defendant may not complain on appeal of prosecutorial
misconduct unless in a timely fashion—and on the same ground—the defendant made an
assignment of misconduct and requested that the jury be admonished to disregard the
impropriety.’ [Citation.]” (People v. Maciel (2013) 57 Cal.4th 482, 541.) “[O]nly if an
admonition would not have cured the harm is the misconduct claim preserved for review.
[Citation.]” (People v. Cook (2006) 39 Cal.4th 566, 606.) However, “‘[a] defendant
whose counsel did not object at trial to alleged prosecutorial misconduct can argue on
appeal that counsel’s inaction violated the defendant’s constitutional right to the effective
assistance of counsel.’ [Citation.]” (People v. Centeno, supra, 60 Cal.4th at p. 674.)
       In this case, trial counsel failed to object to the prosecutor’s statements during
trial, and respondent argues that defendant forfeited his prosecutorial misconduct claims
on appeal as a result. Recognizing this, defendant seeks to excuse trial counsel’s failure
to object on the ground of ineffective assistance of counsel. However, the forfeiture issue
aside, the prosecutor’s statements did not constitute error. It is therefore unnecessary for
the court to determine whether defendant’s prosecutorial misconduct claims are forfeited
or whether trial counsel’s failure to object to the prosecutor’s statements constituted
ineffective assistance of counsel.
       B.     Analysis
              1.     Misstatement of Law
       Defendant argues that the prosecutor conflated the nonexistent crime of second-
degree attempted murder with the attempted murder charge in count 1 when she told “the
jury that [defendant] committed attempted premeditated murder by intentional acts that

                                             12.
placed Brabant and his K-9 partner ‘in danger’ due to the possibility of a head-on
collision at high speeds from which ‘it’s reasonable to believe someone’s going to die or
at least get severely injured.’” In response, respondent asserts that defendant’s “real
complaint is that the prosecutor was arguing the facts in such a way that they could
support a lesser degree [attempted] murder charge,” and “[e]ven assuming for the sake of
argument that the prosecutor’s argument to the jury demonstrated that the facts would
support a second degree [attempted] murder conviction, the prosecutor properly argued
that the evidence supported attempted first degree murder and at no time misstated the
law.”
        We find no prosecutorial error. Prior to the remark at issue, the prosecutor told the
jury they were required to follow the law as instructed by the judge and she reiterated the
People’s burden of showing “defendant took at least one direct but ineffective step
toward killing another person, and … defendant intended to kill that person.” The jury
had been instructed by the trial court as to count 1 and no instructional errors are asserted
on appeal. Further, in their closing arguments, the prosecutor and trial counsel both
addressed the need for defendant to have possessed specific intent to kill to support a
guilty finding on count 1; and specific intent was addressed by the prosecutor in her
closing argument both before and after the statement at issue. Under these
circumstances, we reject defendant’s argument that the statement rose to the level of
prosecutorial error. At worst, the statement amounted to poor word choice, and there is
simply no merit to an argument that the statement “infect[ed] the trial with unfairness” or
“involve[d] the use of deceptive or reprehensible methods of persuasion. [Citation.]”4
(People v. Booker, supra, 51 Cal.4th at p. 184.)




4      Moreover, even if we were to assume prosecutorial error, there was no prejudice. (See
People v. Bryant, Smith and Wheeler (2014) 60 Cal.4th 335, 429.)


                                             13.
              2.     Introduction of Facts Not in Evidence
       Defendant also argues that the prosecutor introduced facts not in evidence when,
in her rebuttal argument, she stated to the jury, “[W]hen one is ‘trying to play chicken’ on
the highway, you eventually brake when you get too close to the person or you move
over. That’s not what happened.” Respondent contends that the prosecutor’s statement
was made in direct response to an argument made by defendant’s counsel during his
closing argument and was not an introduction of facts not in evidence.
       Referring to facts not in evidence is misconduct. (People v. Hill (1998) 17 Cal.4th
800, 827–828). Further, “[a]lthough prosecutors have wide latitude to draw inferences
from the evidence presented at trial, mischaracterizing the evidence is misconduct.
[Citations.]” (Id. at p. 823.) Neither occurred.
       The prosecutor’s remark regarding “trying to play chicken” did not refer to facts
not in evidence but instead was a comment responsive to trial counsel’s characterization
of the evidence relating to count 1. During defendant’s closing argument, trial counsel
stated, “I come over, I’m going to try to have a head-on collision with him? That’s my
intent? No. He’s going to get out of my way. That’s what I’m trying to do, I’m trying to
get away, I’m not trying to crash. He’s going to get out of the way. He’s not going to
head-on with me anymore than I want to head-on with him. [¶] I want him to get out of
my way and I want to get on my way. He’s going to hit his brakes, he’s going to pull
over and I’m going to sail on by.…” We agree with respondent that the prosecutor
merely affixed a label to trial counsel’s characterization of defendant’s actions and, in
doing so, the prosecutor used a commonly known term for such actions. The attachment
of this label to trial counsel’s description of events was neither an introduction of facts
not in evidence nor a mischaracterization of the evidence. Thus, no prosecutorial error
occurred.




                                             14.
                                 DISPOSITION
     The judgment is affirmed.


                                               _____________________
                                                     KANE, Acting P.J.
WE CONCUR:


 _____________________
FRANSON, J.


 _____________________
SMITH, J.




                                   15.
