Filed 2/6/14
                      CERTIFIED FOR PARTIAL PUBLICATION*




               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           SECOND APPELLATE DISTRICT

                                    DIVISION FOUR




THE PEOPLE,                                         B242963

        Plaintiff and Respondent,                   (Los Angeles County
                                                    Super. Ct. No. TA119971)
        v.

TRAVION JONES,

        Defendant and Appellant.




        APPEAL from a judgment of the Superior Court of Los Angeles County,
Allen J. Webster, Jr., Judge. Affirmed.
        Edward H. Schulman, under appointment by the Court of Appeal, for Defendant
and Appellant.
        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Lance E. Winters, Assistant Attorney General, Linda C. Johnson and Gary A.
Liberman, Deputy Attorneys General, for Plaintiff and Respondent.


        *
        Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is
certified for publication with the exception of parts II and III of the Discussion.
       Travion Jones appeals from his judgment of conviction of first degree murder with
personal firearm use and street gang allegations. We find no error and affirm.
       In the published part of this opinion we conclude the trial court properly instructed
the jury on the provocation doctrine as a basis for second degree murder. The balance of
our discussion concerns claims of error based on a witness statement referencing
appellant’s prior prison incarceration, and the claim that application of the Penal Code
section 12022.53, subdivision (d) firearm enhancement violates rules against double
punishment and former jeopardy.


                    FACTUAL AND PROCEDURAL SUMMARY
       This case arises out of two homicides among members of the same criminal street
gang, the Grape Street Crips. No argument is raised concerning sufficiency of the
evidence to support the jury verdicts, and in the following summary we follow the
standard practice of reviewing the record in the light most favorable to the judgment, and
“presume in support of the judgment the existence of every fact the trier [of fact] could
reasonably deduce from the evidence. [Citation.]” (People v. Lewis (1990) 50 Cal.3d
262, 277.) We briefly summarize the evidence as necessary for discussion of the
contested issues.
       The Grape Street Crips is a large aggregation, numbering over 1,000 members.
Many of its members live in the area of Jordan Downs, a public-assisted housing project
in Los Angeles. The location is a high crime area and, as a result, is abundantly supplied
with surveillance cameras. On an evening in August 2011, one of the gang members,
Deshon Raspberry, was shot and killed by James Aubry, another member. Word had
been out that Aubry thought Raspberry had stolen some of his narcotics and was selling
it. According to another version, Antonio McNeil, another member of the gang, had
stolen Raspberry’s drugs, which somehow were acquired by Aubry. Raspberry and
Aubry got into a physical fight during which Raspberry struck Aubry with a stick and,
according to Aubry, said he was going to get a gun. Aubry then got his own gun and,
when Raspberry returned, was afraid Raspberry was going to shoot him. As a result,

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Aubry “went for his gun before [Raspberry] had time to get his,” and shot and killed
Raspberry. Aubry was arrested, but released based on his claim that he acted in self-
defense. Appellant was a close friend of Raspberry. He was “disciplined” (beaten up) by
his fellow gang members who learned that appellant was present when Raspberry was
killed yet made no effort to come to his aid, and because appellant’s explanation “wasn’t
adding up.”
       The day after Raspberry was killed, appellant appeared at the residence of his
girlfriend with a swollen lip. He was upset at the killing of Raspberry, who had been a
close friend. He was “kind of sad” and “cried a little bit.” He received a phone call, then
hurriedly left the residence in his girlfriend’s car and went to the area where Raspberry
had been killed. He spotted McNeil in the area. He said to Robert Anderson, an
acquaintance who was there, “I’m about to kill that n-----.” The acquaintance then left
the area on a bicycle and did not witness the shooting. There had been talk that McNeil
had given Aubry the gun used to kill Raspberry. When McNeil saw appellant he tried to
run away. McNeil was chased by appellant. Shot by appellant, McNeil dropped to the
ground. Appellant walked over and shot McNeil several more times, killing him. Videos
taken from the surveillance cameras displayed the encounter, chase and shooting. As
narrated by a detective while the jury viewed the film, it showed:
       “Down here is the crowd that was gathered. You can see them reacting to
something, kind of ducking and kneeling. There’s the victim running in an eastbound
direction between the buildings, stands behind the car over here. Here comes the suspect,
chasing him. At this point, they’re separated by the car and going back and forth in
between the cars. And suspect and victim . . . kind of chasing each other around the car.
Victim makes a run for it, and in a westbound direction he falls down between the
buildings. To the east of the [parking] lot suspect approaches him, stands, extends out his
arms, appears to be firing a gun a few more times. Stands extending his arm out.
Suspect begins to walk and then run back in the same direction [from which he had
come].” There was evidence that when McNeil saw appellant with a gun pointed at him,
McNeil yelled, “It wasn’t me. It wasn’t me.”

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       A neighbor, Marilyn Garcia, witnessed the shooting, and described it much as the
video had displayed. She testified that after the shooting, the shooter looked directly at
her and made a “mad face,” then left. She got a good look at him at the time. She was
able to recognize appellant as a resident of Jordan Downs, and when shown a photo
lineup that included appellant‘s photograph, she said the picture “looks like the guy that
did the shooting.”
       Appellant returned to his girlfriend’s residence, and was fully packed and ready to
leave when she returned. She drove him to San Bernardino, where he later was located
and arrested.
       Appellant was charged in a single count with murder (Pen. Code, § 187, subd. (a);
all subsequent code citations are to the Penal Code), with allegations that the killing was
committed by appellant’s personal and intentional discharge of a firearm (§§ 667.6,
subd. (c) & 12022.53, subd. (c)), and that the crime was committed for the benefit of and
at the direction of a criminal street gang with the specific intent to promote, further and
assist the criminal conduct of gang members (§186.22, subd. (b)(1)(C)). Appellant was
convicted of first degree murder and the special allegations were found to be true. He
received an aggregate prison sentence of 50 years to life. Appellant did not present a
case-in-chief. He filed a timely notice of appeal.


                                       DISCUSSION
                                              I
       Appellant argues that jury instructions on the doctrine of provocation were
misleading because they did not, or did not explicitly, inform the jury that the objective
standard applies only for reduction of murder to voluntary manslaughter, and does not
apply to reduce first to second degree murder.


       The jury instructions at issue are CALCRIM Nos. 520, 521, 522, and 570. The
jury received them in written and oral form. In each form, the jury was instructed on the
elements of first degree willful, deliberate and premeditated murder. It was informed that

                                              4
a conviction of first degree murder requires satisfaction of these elements, each of which
must be proven beyond a reasonable doubt. The jury was instructed that if it found that
appellant committed first degree murder it should sign and return the verdict form for that
offense and not complete or sign any other form. CALCRIM No. 522 instructed that
provocation may reduce murder from the first to the second degree. It informed the jury
that if it concluded that defendant committed murder “but was provoked, consider the
provocation in deciding whether the crime was first or second degree murder. Also,
consider the provocation in deciding whether the defendant committed murder or
manslaughter.” CALCRIM No. 570, addressed reduction to voluntary manslaughter on
the basis of provocation. It provides:
       “A killing that would otherwise be murder is reduced to voluntary manslaughter if
the defendant killed someone because of a sudden quarrel or in the heat of passion.
       “The defendant killed someone because of a sudden quarrel or in the heat of
passion if:
              1. The defendant was provoked;
              2. As a result of the provocation, the defendant acted rashly and under the
influence of intense emotion that obscured his/her reasoning or judgment;
              AND
              3. The provocation would have caused a person of average disposition to
act rashly and without due deliberation, that is, from passion rather than from judgment.
       “Heat of passion does not require anger, rage, or any specific emotion. It can be
any violent or intense emotion that causes a person to act without due deliberation and
reflection.
       “In order for the heat of passion to reduce a murder to voluntary manslaughter, the
defendant must have acted under the direct and immediate influence of provocation as I
have defined it. While no specific type of provocation is required, slight or remote
provocation is not sufficient. Sufficient provocation may occur over a short or long
period of time.


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       “It is not enough that the defendant simply was provoked. The defendant is not
allowed to set up his own standard of conduct. You must decide whether the defendant
was provoked and whether the provocation was sufficient. In deciding whether the
provocation was sufficient, consider whether a person of average disposition, in the same
situation and knowing the same facts, would have reacted from passion rather than from
judgment.
       “If enough time passed between the provocation and the killing for a person of
average disposition to “cool off” and regain his or her clear reasoning and judgment, then
the killing is not reduced to voluntary manslaughter on this basis.
       “The People have the burden of proving beyond a reasonable doubt that the
defendant did not kill as the result of a sudden quarrel or in the heat of passion. If the
People have not met this burden, you must find the defendant not guilty of murder.”
       Thus, a subjective test applies to provocation as a basis to reduce malice murder
from the first to the second degree: it inquires whether the defendant in fact committed
the act because he was provoked. The rationale is that provocation may negate the
elements of premeditation, deliberateness and willfulness that are required for that degree
of the crime. (People v. Hernandez (2010) 183 Cal.App.4th 1327, 1333 (Hernandez).)
But more is required to reduce malice murder to voluntary manslaughter. For that, an
objective test also applies: the provocation must be so great that, in the words of
CALCRIM No. 570, it “would have caused a person of average disposition to act rashly
and without due deliberation, that is, from passion rather than from judgment.”
       Appellant argues that these pattern instructions were likely to have misled the jury
into concluding that the objective test applies both for reduction of first to second degree
murder as well as from murder to manslaughter. The argument fails on several levels.
       The first is that the instructions are correct. They accurately inform the jury what
is required for first degree murder, and that if the defendant’s action was in fact the result
of provocation, that level of crime was not committed. CALCRIM Nos. 521 and 522,
taken together, informed jurors that “provocation (the arousal of emotions) can give rise
to a rash, impulsive decision, and this in turn shows no premeditation and deliberation”

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(Hernandez, supra, 183 Cal.App.4th at p. 1334.) As the jury also was instructed, a
reduction of murder to voluntary manslaughter requires more. It is here, and only here,
that the jury is instructed that provocation alone is not enough for the reduction; the
provocation must be sufficient to cause a person of average disposition in the same
situation, knowing the same facts, to have reacted from passion rather than judgment.
       There was no error in giving these instructions.
       Which takes us to the second reason to reject the argument. What appellant is
arguing is that a more specific instruction, actually a pinpoint instruction, should have
been given informing the jury that the objective test did not apply to reduction of the
degree of murder. (Hernandez, supra, 183 Cal.App.4th at p. 1333.) Defense counsel did
not request such an instruction, and his failure to do so forfeits the claim on appeal.
(People v. Rundle (2008) 43 Cal.4th 76, 151, overruled on another ground in People v.
Doolin (2009) 45 Cal.4th 390, 421.)
       To be sure, the result might have been different if the prosecutor had argued that
an objective test applied to reduce murder from first to second degree. (See People v.
Guiton (1993) 4 Cal.4th 1116, 1128–1129 [prejudice might be inferred where two
alternative bases of guilt were presented to jury, one valid and the other not, and
prosecutor stressed the latter].) This takes us to the third reason we disagree with
appellant’s argument: appellant did not rely on provocation at trial. In fact, as we next
discuss, provocation was scarcely mentioned at all.
       Recognizing that a pinpoint instruction on provocation was not requested,
appellant argues that he was ineffectively represented by trial counsel. Not so. Counsel
was free to argue that appellant’s actions were the product of provocation based on the
killing of Raspberry, in which he thought McNeil was complicit. He not only did not
make that argument; he disavowed it. And understandably so.
       First, there was little in the record to support it. Raspberry was a friend of
appellant, his “best homey”. And there was evidence that appellant was upset about the
murder, and even cried “a little bit.” But that was all. The killing of Raspberry had
occurred the day before, and appellant had ample time to reflect and decide what to do.

                                              7
He doubtless was upset after having suffered the disgrace of being disciplined by his
gang for being present and not coming to Raspberry’s aid when the killing occurred.
After receiving a telephone call from someone, he left his girlfriend’s residence, with a
gun, and headed to the place where the Raspberry killing had occurred, and where
McNeil was. He remarked to an acquaintance that he was going to kill McNeil, then
proceeded to do so.
       Second, defense counsel had two possible theories to present: provocation and
mistaken identity. It would have been difficult to present both while retaining credibility
with the jury. He chose the second, and presented evidence to support it as best he could.
Given the evidence in the case, counsel cannot be faulted for not succeeding with what he
had to work with, concentrating on weaknesses and inconsistencies in the identification
evidence.
       Although the jury had been instructed on provocation, the subject was hardly
mentioned in argument. In opening statement defense counsel set out what he argued the
evidence would show: while there was a video of the actual shooting, it did not identify
the shooter, and Anderson, the acquaintance, was not to be credited because he said a lot
of different things, one of which was he “wasn’t even there. I didn’t see anything.” And
in his closing argument, defense counsel told the jury that in opening statement he had
said “what the evidence is going to show is that the shooter is not in this courtroom. That
they will not be able to prove beyond a reasonable doubt that the shooter is in this
courtroom. And I stand by that.” Neither did the prosecutor dwell on provocation. She
said, simply, that “[t]here’s a voluntary manslaughter instruction thrown in there, and that
has to do with the killing in the heat of passion. It’s in there because the law says, you
know, that you get this instruction. It’s there for your consideration. But there is no
evidence in this case and you haven’t heard anything from the defense at all. Not that
they have the burden to present anything. But we haven’t heard anything to show that
this was a killing done in the heat of passion from him having his best friend killed. The
defendant went out that morning after a phone call, he acted coldly, he acted
methodically, he acted to execute Antonio McNeil.”

                                              8
       In short, provocation was not part of the defense. We have no occasion to discuss
prejudicial error since there was no error.
                                              II
       During direct examination of witness Anderson, the prosecutor asked how he
knew Raspberry (using his street moniker, “Little Locci”). Anderson answered that they
grew up together. Raspberry was a “kind of” relation to Anderson. Asked to explain,
Anderson said, “My mother and his mother grew up together.” Asked, “What about
Third? How did you know him?” (“Third” was appellant’s moniker), Anderson replied,
“Went to school, and we was in prison together.” This was followed by a discussion at
sidebar, where defense counsel objected to the reference to appellant having been in
prison, asked that the answer be stricken, and moved for a mistrial. The prosecutor stated
that the answer was not what he was attempting to elicit from Anderson, that he thought
it was understood that evidence of appellant’s prison record had been stricken from
documents presented in evidence, and she agreed that the answer should be stricken. The
trial court announced that it was going to strike the answer and admonish the jury. It
denied the motion for mistrial. It then instructed the jury: “The court’s going to strike
Mr. Anderson’s last response with respect to Mr. Jones and how he knows Mr. Jones. So
that’s stricken and disregard that response for any reason whatsoever. Do not let it enter
your discussions at all.”
       Appellant argues the harm already had been done and could not be undone. We
do not agree. The court acted promptly and effectively. It repeated the admonition in its
closing instructions, “If I ordered testimony stricken from the record you must disregard
it and must not consider that testimony for any purpose.” It is presumed the jury
followed these instructions. (People v. Yeoman (2003) 31 Cal.4th 93, 139.) Finally,
while jurors heard that appellant had been in prison, they heard nothing about the nature
of the crime that caused him to be there; they knew Anderson had been in prison, and
later learned that it was for a nonviolent drug offense. No basis for reversal has been
shown.


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                                            III
       Appellant argues that the “super-weapons enhancement” provision in section
12022.53, subdivision (d), violates the rule against conviction for both a crime and a
lesser included offense of that crime. This is so, he argues, because the crime of murder
includes the element of death as does the enhancement, and McNeil died as a result of
being shot to death. In a related claim, appellant argues that imposition of the
enhancement violates the former jeopardy principle. Appellant recognizes that our
Supreme Court has ruled against these claims in two recent cases, People v. Sloan (2007)
42 Cal.4th 110, 115, and People v. Izaguirre (2007) 42 Cal.4th 126, 130. He also
recognizes that, as an intermediate appellate court, we are bound by decisions of our
Supreme Court (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455), but
makes these arguments for purposes of preserving the claims for subsequent review. We
are not persuaded but even if we were, as appellant recognizes, we are bound by
controlling precedent.


                                     DISPOSITION
       The judgment is affirmed.
       CERTIFIED FOR PARTIAL PUBLICATION




                                                        EPSTEIN, P. J.
We concur:



       WILLHITE, J.                                     MANELLA, J.




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