Filed 3/27/13 P. v. Mushegyan CA2/5
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 FIVE


THE PEOPLE,                                                          B238583

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BA363298)
         v.

EDMOND MUSHEGYAN,

         Defendant and Appellant.



         APPEAL from a judgment of the Superior Court of Los Angeles County.
Ronald S. Coen, Judge. Affirmed.
         Law Offices of Daniel V. Behesnilian and Daniel V. Behesnilian for Defendant
and Appellant.
         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Senior Assistant Attorney General, Paul M. Roadarmel, Jr.,
and Daniel C. Chang, Deputy Attorneys General, for Plaintiff and Respondent.
                                                 _______________
       Appellant Edmond Mushegyan was convicted, following a jury trial, of one count
of attempted murder in violation of Penal Code sections 187 and 664,1 one count of
shooting at an occupied vehicle in violation of section 246, and one count of assault with
a semi-automatic firearm in violation of section 245, subdivision (b). The jury found true
various firearm allegations within the meaning of sections 12022.5 and 12022.53,
including the allegation that appellant personally used a firearm within the meaning of
section 12022.53, subdivision (d), and also found true the allegation that appellant
personally inflicted great bodily harm within the meaning of section 12022.7,
subdivision (a). The trial court sentenced appellant to 32 years to life in prison,
consisting of the midterm of seven years for the attempted murder plus a 25-years-to-life
enhancement term for the section 12022.53, subdivision (d) firearm use allegation. The
court imposed but stayed sentence on the sections 245 and 246 convictions.
       Appellant appeals from the judgment of conviction, contending that there is
insufficient evidence to support the attempted murder conviction, and further contending
that the trial court erred in instructing the jury with CALCRIM No. 604 on unreasonable
self-defense and failing to instruct the jury on voluntary manslaughter under a heat of
passion theory. He also contends that the trial court abused its discretion in denying his
motion for a new trial. We affirm the judgment of conviction.


                                             Facts
       On October 11, 2009, Timothy Dewitt drove to Hollywood to go out on a second
date with Lea Patrick. After the date, sometime between 2:00 a.m. to 3:00 a.m., the
couple went to Ms. Patrick's apartment complex in Hollywood on Yucca Street.
Mr. Dewitt parked his Ford F-150 truck on Las Palmas Avenue, leaving the front
passenger window open but locking all the doors. He then walked Ms. Patrick to her
apartment door, then began walking back to his truck.



       1
           All further statutory references are to the Penal Code unless otherwise indicated.

                                               2
       As Mr. Dewitt approached his truck, he noticed the cabin light was turned on, the
door had been opened, and someone was inside the passenger side. He shouted, "Hey,
hey, hey" and ran toward the truck. He also said something like, "What the fuck are you
doing?" The person inside the F-150, later identified as appellant, jumped out.
Mr. Dewitt kicked appellant's chest as hard as he could, and appellant fell against the
truck's door and then toward the ground in a sitting position. Mr. Dewitt asked, "What
are you doing? What are you doing?"
       Appellant stood up, pulled out a gun, and pointed it at Mr. Dewitt. The gun
touched the area of Mr. Dewitt's chest over his heart. Mr. Dewitt was afraid when he saw
the gun. Appellant gestured at his uniform and his gun, and told Mr. Dewitt something to
the effect of "Do you see this? Do you see this? You respect this. You respect this gun."
Mr. Dewitt saw appellant wore a tan-colored security guard uniform.
       Mr. Dewitt was afraid appellant might use the gun, and began apologizing and
backing away toward the driver's side of the truck. Mr. Dewitt told appellant that "this
never happened" and he was just going to leave. Appellant stood on the sidewalk near
the rear of the truck and continued to point his gun at Mr. Dewitt.
       Mr. Dewitt got into the truck. Because there was a car parked in front of the F-
150, Mr. Dewitt had to drive the truck in reverse for a foot or two before he had enough
space to drive forward out of the parking space. He intended to go home. As Mr. Dewitt
drove forward, he vaguely remembered hearing a bang and crashing into something. He
also recalled having a wet feeling down his back and not knowing why, and the medical
personnel who tried to help him.
       Mr. Dewitt testified that at no point did he attempt to run appellant over, nor was
he "revving the engine." He did not remember "punching the gas" at any point, he did
not remember yelling anything at appellant as he drove away from the parking space, and
he did not remember attempting to make a three-point turn on Las Palmas Avenue. He
agreed that since the location of the crash was south of where he parked, he must have
turned his truck at some point. He did not remember turning, however.



                                             3
       Mr. Dewitt was in the hospital for about a week, receiving medical care for a
gunshot wound to the back of his head. Surgery removed the bullet from his brain. As a
result of this injury, he lost 50 percent of his vision in both eyes, and he lost his driver's
license because he is legally blind.
       Los Angeles Police Department Officer Magdalena Chun arrived at the 1700
block of Las Palmas Avenue about 3:30 or 3:50 a.m. Officer Chun saw a truck that had
crashed into a block wall, and a man who appeared to be wounded lying next to the truck.
Appellant came up to Officer Chun, told her that he worked as a security guard for 1776
Las Palmas, and had seen what happened.
       Appellant said he was on his routine patrol in the parking lot next to 1776 Las
Palmas when he had an "exchange of words" with someone inside a truck. As appellant
walked away from the truck, he saw a second car pull out from behind the truck.
Appellant heard gunshots and took cover. Appellant then heard the sound of a car
crashing into a wall.
       Officer Chun told appellant to stay where he was while she put up the crime scene
tape. Officer Chun then heard a police radio broadcast describing the shooting suspect as
a male Hispanic security guard. When she returned to the location where she had spoken
with him, he was no longer there.
       In the meantime, Los Angeles Police Officer Jason Marquez had also arrived at
the crime scene. Mr. Dewitt was lying next to his truck, and blood was coming from his
head. Mr. Dewitt said a security guard shot him.
       Officer Marquez interviewed appellant, who wore a brown-colored security guard
uniform with patches. Appellant said that as he was on patrol, he saw the door to a Ford
F-150 was open. He exchanged words with the shooting victim and then left. As he was
leaving, he heard a loud screeching noise and then saw a black Dodge Charger pull up
next to the victim's vehicle. He heard two gunshots and then saw the F-150 crash into a
parked vehicle.
       Los Angeles Police Department Sergeant Enrique Mendoza found spent casings or
fragments on Las Palmas Avenue. They came from a .40 caliber Glock Model 23.

                                               4
Appellant was subsequently arrested and a .40 caliber Glock Model 23 was seized from
him.
       Events surrounding the shooting were heard or seen by two witnesses. John Gean
overheard an argument about 3:00 a.m. which involved a lot of profanity-laced shouting.
The only statement he could understand was, "You be on your way and I will be on
mine." About five minutes after that statement, he heard the sound of a truck
accelerating, followed by the sounds of gunfire and a crash. Eden Spairow who lived in
an apartment on North Cherokee, heard three gunshots at 3:30 a.m, looked out her
window and saw a man dressed in what appeared to be a security uniform leisurely
walking up and down the sidewalk. She saw the man reach down, pick up three things
off the ground, and place them in his pocket.
       The next day, Los Angeles Police Department Detective Sue Brandstetter and her
partner, Detective Timo Illig, interviewed appellant at the Hollywood police station.
Portions of the recorded interview were played for the jury. Appellant stated he
understood his Miranda rights and agreed to speak with the detectives about the incident.
       Appellant told the detectives the following, among other things: During
appellant's encounter with Mr. Dewitt, he asked appellant, "What the fuck you doing to
my car?" Appellant explained to Mr. Dewitt that he was a security guard, and he looked
into his car because his window was open and he wanted to know whether he needed to
call the police. Mr. Dewitt "cussed [him] out" and entered the car. Mr. Dewitt closed the
door, drove straight a little, and then made a U-turn. Mr. Dewitt yelled at appellant, "I'm
going to run you over motherfucker." Mr. Dewitt then tried to run over appellant, at
which point appellant jumped onto the sidewalk and fired twice. Appellant's shots hit the
car on the driver's side. The car then crashed into another parked car. Appellant denied
that he was attempting to shoot the driver, and instead said he shot at the truck because he
was afraid for his life. Appellant also said he fired because he wanted to scare the driver.
       Detective Brandstetter asked appellant why he picked up the casings. Appellant
said he picked up the casings because they were his, and he planned to do nothing with
them. When appellant was asked why he told the responding officers that the shots came

                                             5
from a black car, appellant replied that he said, "I just saw the black car zooming in." He
did not know why the black car was relevant. Detective Illig asked appellant why he
attempted to cover up his involvement in the shooting and why he did not tell the
responding police officers that he shot Mr. Dewitt. Appellant said he did not believe that
information was important, then said that information was important, but he "didn't think
of it." Appellant also did not think to tell the officers that he picked up the casings.
When Detective Illig told appellant that it seemed like he was trying to cover up his
crime, appellant replied, "Probably I was afraid."
       During the interview, appellant again denied that he was trying to hurt Mr. Dewitt.
Appellant said, "If I try to hurt the guy, I would beat the crap out when he kicked me. I
just didn't do it. I just verified who I am. I told him, you know, just let it go, bro. Just go
have a good night and I'll close the door even for you . . . ."
       Appellant told the detectives that when he returned to his car to put the casings
inside his truck, he removed the magazine from his gun and replaced it with the magazine
inside his belt. Appellant admitted that he should not have done this, and did not know
why he did. Detective Brandstetter believed the magazine replacement was significant
because it gave the appearance that the gun had not been recently fired. The magazine
with two missing bullets was found in appellant's trunk. It was not until appellant was
directly asked, "Where are the casings?" that he admitted they were inside his trunk.
       Los Angeles Police Department Criminalist Marissa Bowen performed a bullet
path analysis of the bullet impacts found on Mr. Dewitt's F-150. She determined that the
projectile responsible for the impacts came from the rear and came from the left side of
the vehicle toward the right side. She also observed three separate "defects" that arose
from a single projectile. She explained that the projectile impacted the F-150 and then
ricocheted to hit two other portions of the vehicle. She opined that the general direction
of the projectile went from the back of the vehicle to the front, and it was not possible
that the impact came from a gun that was in front of the vehicle.
       In his defense, appellant offered the testimony of John Tyson, a vehicle accident
reconstruction specialist. Mr. Tyson opined that after appellant's encounter with Mr.

                                               6
Dewitt, Mr. Dewitt drove the F-150 north on Las Palmas Avenue. Mr. Dewitt then
performed a three-point turn and drove south toward appellant. He passed appellant and
stopped south of Franklin Place and in the driveway of an apartment complex. Mr.
Tyson calculated that the F-150 was travelling between 22 and 30 miles per hour when it
crashed.
       Mr. Tyson reviewed the police report, which included schematics showing two
bullet trajectories; one to the bed of the F-150 and one to the door area behind its cab. He
opined that at the time the shots were fired, the F-150 was travelling 33 to 44 feet per
second, and the two shots were fired within a half-second of each other. The path of one
bullet was toward the tire. The path of the second bullet entered just behind the F-150's
door and entered the rear of the cab. When defense counsel asked Mr. Tyson whether the
"higher dimension" of the second bullet's impact was the result of recoil, he replied,
"Well, if it's within half a second it's certainly very close to the first discharge." The tires
were not flattened by the bullets.
       Mr. Tyson admitted he had no training in guns and he was not a gun expert. He
could not determine where appellant stood in relationship to the F-150, and that all he
knew was that appellant was in "close proximity" to where the F-150 started.
       Patricia Fant, a forensics firearm examiner, also testified for the defense. Her
testimony was primarily concerned with the operation of the Glock 23.
       Debra Glaser, a psychologist, also testified for the defense. She testified about the
effects of stress, fight or flight, and tunnel vision.


                                           Discussion
       1. Sufficiency of the evidence
       Appellant contends that there is no evidence that he had a specific intent to kill
and so there is insufficient evidence to support his conviction for attempted murder. He
further contends that such a conviction violates his federal constitutional right to due
process. We do not agree.



                                                7
        "'In reviewing a challenge to the sufficiency of the evidence, we do not determine
the facts ourselves. Rather, "we examine the whole record in the light most favorable to
the judgment to determine whether it discloses substantial evidence—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." [Citations.] We presume in support of the
judgment the existence of every fact the trier could reasonably deduce from the evidence.
[Citation.] [¶] The same standard of review applies to cases in which the prosecution
relies primarily on circumstantial evidence and to special circumstance allegations.
[Citation.] "[I]f the circumstances reasonably justify the jury's findings, the judgment
may not be reversed simply because the circumstances might also reasonably be
reconciled with a contrary finding." [Citation.] We do not reweigh evidence or
reevaluate a witness's credibility. [Citation.]'" (People v. Nelson (2011) 51 Cal.4th 198,
210.)
        Appellant contends that the only possible evidence of intent to kill came from the
two shots fired at the victim's truck, and that the testimony of defense expert Tyson
precluded a reasonable inference that those shots were aimed at the victim. Specifically,
appellant contends that Tyson testified that the two shots were fired within a half-second
of each other, the first shot was fired toward the tire and the second shot was fired
slightly higher due to the recoil from the first shot. He further contends that Tyson's
testimony was uncontradicted.
        Appellant has overstated Tyson's testimony. Tyson's testimony about the order of
the shots and the height of those shots was not contradicted. Tyson was not a firearms
expert, however, and did not testify that the shot to the cab was higher due to gun recoil.
Appellant's attorney asked Tyson if the higher shot "could have been done at the time of
the recoiling?" Tyson replied: "Well, if it's within half a second it's certainly very close
to the first discharge." Testimony about the effect of gun recoil on shot height came from
defense expert Patricia Fant, a forensics firearms examiner. She testified that a gun
recoils after a shot is fired, and that "there is a likelihood" that the shooter's hand goes up.
She also testified that some people "flinch" in anticipation of the recoil and pull the gun

                                               8
down. She further testified that experienced shooters can adjust for recoil and hit their
intended target. Thus, nothing in the testimony of Tyson and Fant precluded an inference
that appellant was aiming at the victim's head.
       There is sufficient evidence to support a finding that appellant had the specific
intent to kill the victim. Appellant shot the victim in the head at fairly close range.2 It is
more than reasonable to infer that a shot to the head is intended to kill. (See People v.
Leon (2010) 181 Cal.App.4th 452, 464-465 [sufficient evidence of intent to kill where
shot fired into car's right taillight hit and killed passenger and so must have been pointed
at passenger]; see also People v. Smith (2005) 37 Cal.4th 733, 742 [intent to kill shown
where shooter fired into vehicle from directly behind it and one car length away].)
Further, appellant fired two shots at the truck, the second one while the truck was moving
away. According to appellant's own expert, it was the second shot which hit Dewitt.
Appellant must have adjusted his position to fire this shot.3 This sort of repeated firing
also supports an inference of an intent to kill. The inference in this case is only
strengthened by the altercation which preceded the shooting. During that altercation,
appellant pulled a gun on the victim and touched the gun to the victim's chest area over
his heart, while demanding respect. Again, this supports an inference of an intent to kill
the victim.
       Since we have determined that "a rational trier of fact could have found the
essential elements of the crime proven beyond a reasonable doubt, the due process clause
of the United States Constitution is satisfied [citation], as is the due process clause of




       2
        According to Tyson, the first shot was fired at the truck at an almost
perpendicular angle, that is while the truck was in the street almost in front of appellant.
The second shot was fired after the truck had travelled 15 feet away from appellant.
       3
        Appellant fired the first shot at an angle almost perpendicular to the truck, which
means that he fired as it was passing him. He fired the second shot from behind the truck
and thus after it had passed him. Thus, he had to turn or move his arm to fire the second
shot.

                                               9
article I, section 15, of the California Constitution." (People v. Osband (1996) 13 Cal.4th
622, 690.)


          2. Voluntary manslaughter instruction
          The trial court instructed the jury on attempted voluntary manslaughter under an
imperfect self-defense theory. Appellant contends that the trial court erred in failing also
to instruct the jury, sua sponte, on attempted voluntary manslaughter under a heat of
passion theory. We see no error.
          "'"It is settled that in criminal cases, even in the absence of a request, the trial court
must instruct . . . ." [Citation.] . . . on lesser included offense when the evidence raises a
question as to whether all of the elements of the charged offense were present [citation],
but not when there is no evidence that the offense was less than that charged. . . .'"
(People v. Breverman (1998) 19 Cal.4th 142, 154.)
          A defendant who commits an intentional and unlawful killing, but who lacks
malice, is guilty of the lesser included offense of voluntary manslaughter. (People v.
Barton (1995) 12 Cal.4th 186, 199.) Lack of malice may be found in limited
circumstances, either when the defendant acts upon "a sudden quarrel or heat of passion"
or when he kills in the unreasonable but good faith belief in the need for self-defense.
(Ibid.)
          Voluntary manslaughter under a heat of passion theory requires both provocation
and heat of passion. (People v. Steele (2002) 27 Cal.4th 1230, 1252.) Thus, in addition
to adequate provocation there must be evidence that the defendant's reason was in fact
obscured by passion at the time of the killing. (People v. Sedeno (1974) 10 Cal.3d 703,
719.)
          Appellant contends that the evidence showed that "the physical confrontation
between Appellant and Mr. Dewitt occurred in the course of a heated argument which
took place after Mr. Dewitt attacked Appellant, left the scene, then turned his truck
around, revved the engine and drove back toward Appellant." He also contends that the
evidence shows that he was "beaten and insulted" by Mr. Dewitt. He further contends

                                                 10
that these actions by the victim resulted in "a double dose of adrenaline and tunnel
vision" in appellant.
       Even assuming for the sake of argument that Mr. Dewitt's statements to appellant
and his act of kicking appellant in the chest could constitute legally adequate provocation,
there is no evidence that appellant was actually provoked by this. Appellant told
Detectives Brandsetter and Illig that appellant did not kick him that hard. Appellant also
said that he remained calm and courteous after the kick and argument. Appellant also
told the detectives, "If I try to hurt the guy, I would beat the crap out when he kicked me.
I just didn't do it. I just verified who I am. I told him, you know, just let it go, bro. Just
go have a good night and I'll close the door even for you . . . ." There is nothing in these
statements to suggest that the argument and kick aroused feelings of rage or passion in
appellant and obscured his reason.
       Appellant also points to Mr. Dewitt's driving as an act of provocation. Again,
assuming that this could be an act of provocation, there is no evidence that the act
aroused feelings of passion or rage in appellant and obscured his reason. Appellant told
police that he was afraid for his life when the truck drove toward him.4 He also said that
he fired to scare the driver. Neither statement shows rage or heat of passion.
       Further, at no point did appellant's trial counsel argue that appellant was provoked
or acting in the heat of passion. Counsel's arguments focused on appellant's fear and his
self-defense claim.
       Since there was no substantial evidence to support the giving of voluntary
manslaughter under a heat of passion theory, the trial court did not err in failing to give
such an instruction. To the extent that appellant claims that the lack of the instruction
violated his federal constitutional rights, we do not agree. The federal Constitution does
not give the defendant in a noncapital case the right to instructions on lesser included
offenses. (People v. Breverman, supra, 19 Cal.4th at p. 167.) Further, where no


       4
        Based on this statement by appellant, the jury was instructed on self-defense and
imperfect self-defense.

                                              11
substantial evidence supports a proposed jury instruction, refusing the instruction does
not result in fundamental unfairness or an unreliable verdict. (People v. Holloway (2004)
33 Cal.4th 96, 141.)


       3. Motion for a new trial
       Appellant contends that the trial court erred in denying his motion for a new trial.
His claim of error is based on his belief that the evidence is insufficient to support the
jury's verdict, in particular the finding that he had a specific intent to kill. As we discuss,
ante, there is sufficient evidence to support appellant's conviction. Accordingly, the trial
court did not abuse its discretion in denying appellant's motion for a new trial.


       4. CALCRIM No. 604
       Appellant contends that the trial court erred in instructing the jury with CALCRIM
No. 604 because that instruction incorrectly states the law concerning imperfect self-
defense, and that the error was prejudicial under state and federal constitutional law. He
further contends that his counsel was ineffective in failing to bring the error in the
instruction to the trial court's notice.
       The version of CALCRIM No. 604 used by the trial court read: "An attempted
killing that would otherwise be attempted murder is reduced to attempted voluntary
manslaughter if the defendant attempted to kill a person because he acted in imperfect
self-defense. [¶] If you conclude the defendant acted in complete self-defense, his action
was lawful and you must find him not guilty of any crime. [¶] The difference between
complete self-defense and imperfect self-defense depends on whether the defendant's
belief in the need to use deadly force was reasonable. [¶] The defendant acted in
imperfect self-defense if: [¶] 1. The defendant took at least one direct but ineffective step
toward killing a person. [¶] 2. The defendant intended to kill when he acted. [¶] 3. The
defendant believed that he was in imminent danger of being killed or suffering great
bodily injury. [¶] AND [¶] 4. The defendant believed that the immediate use of deadly



                                              12
force was necessary to defend against the danger. [¶] BUT [¶] 5. The defendant's beliefs
were unreasonable." (Italics added.)
       Appellant contends that the last sentence of the instruction is incorrect, specifically
the use of the plural "beliefs." As respondent points out, appellant's claim appears to be
based on People v. Her (2009) 181 Cal.App.4th 349. In that case, the Court of Appeal
found that the attempted voluntary manslaughter instruction erroneously told the jury that
imperfect self-defense existed only if a defendant had both the unreasonable belief that he
was in imminent danger and the unreasonable belief that the use of deadly force was
necessary to defend himself. The Court held that only one belief need be unreasonable.
(Id. at pp. 352-353.) In October 2010, CALCRIM No. 604 was revised to explicitly state
that "BUT [¶] 5. At least one of the defendant's beliefs was unreasonable."
       The Court in Her, supra, found the error in CALCRIM No. 604 to be, in effect, a
technical one. The Court found no reasonable likelihood that a jury would understand
former CALCRIM No. 604 in the manner suggested by the defendant. The Court looked
at the instructions as a whole, including CALCRIM No. 505 on self-defense. CALCRIM
No. 505 tells the jury that if a defendant had both a reasonable belief that he was in
imminent danger of being killed or suffering great bodily harm and if he reasonably
believed the use of deadly force was necessary to defend himself, then the defendant was
not guilty of any crime. CALCRIM No. 604 told the jury that if the defendant held both
of those foregoing beliefs but those beliefs were unreasonable, the defendant was guilty
of attempted voluntary manslaughter. The defendant in Her, like appellant in this case,
claimed that if the jury found that the defendant held one reasonable and one
unreasonable belief, the jury would believe that they were required to convict him of
attempted murder. "Thus, in his view, the jury could have understood the instructions to
require a harsher verdict for a partially reasonable belief in the need to defend
himself . . . than for a completely unreasonable belief in that regard." (Id. at p. 354,
original italics.)
       The Court in Her rejected the defendant's claim of prejudice, explaining:
"Although CALCRIM No. 604 erroneously stated that imperfect self-defense or defense

                                              13
of another existed only if defendant's 'beliefs' were unreasonable, another part of the
instruction made clear that '[t]he difference between complete self-defense . . . and
imperfect self-defense . . . depends on whether the defendant's belief in the need to use
deadly force was reasonable.' Assuming for the sake of argument that the jury could
have entertained a reasonable doubt as to whether defendant actually believed in the need
to defend himself . . . , we conclude the jury would have understood from the instructions
as a whole that the reasonableness of that belief (or those beliefs, if broken into
components) went to whether defendant was guilty of attempted voluntary manslaughter
or no crime at all, and not to whether he was guilty of attempted murder." (People v.
Her, supra, 181 Cal.App.4th at p. 354.) Appellant offers no critique of the reasoning of
Her.
       Further, even assuming that a jury could understand former CALCRIM No. 604 in
the manner suggested by appellant (and the defendant in Her), appellant's claim would
still fail. Appellant provides no plausible explanation of how, under the facts of this case,
the jury could have found one belief reasonable and the other unreasonable. Appellant
suggests that his belief that he was in imminent danger from the truck might have been
unreasonable, but his belief that he needed to fire at the vehicle to slow it down or
prevent it from turning around was reasonable. In appellant's view, because he actually
believed he was in imminent danger, it was reasonable for him to believe that the use of
deadly force was necessary to defend himself. Reasonableness, however, is not
determined from the defendant's point of view. Since a reasonable person in appellant's
position would not have believed himself to be in imminent danger to begin with, the
reasonable person would not have believed that the use of deadly force was warranted.
       The absence of any prejudice resolves appellant's federal constitutional claims and
ineffective assistance of counsel claims. (See People v. Holt (1997) 15 Cal.4th 619, 703
[ineffective assistance claim].)




                                             14
                                 Disposition
     The judgment is affirmed.
     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS



                                          ARMSTRONG, Acting P. J.


We concur:



             MOSK, J.



             KRIEGLER, J.




                                     15
