Filed 3/20/15 P. v. Lewis CA4/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D066868

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. FV11000504)

WILLIAM EDWARD LEWIS II,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Bernardino County, Eric

M. Nakata, Judge. Affirmed with directions.

         David L. Polsky, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney

General, Arlene A. Sevidal and Elizabeth M. Carino, Deputy Attorneys General, for

Plaintiff and Respondent.
                                             I.

                                    INTRODUCTION

       A jury convicted William Edward Lewis II of one count of first degree murder

(count 1) and one count of second degree murder (count 2) (Pen. Code, § 187, subd.

(a)).1 The murder victims were Lewis's girlfriend, Angelina Goffredo, and her fetus.

The jury also convicted Lewis of two counts of assault with a firearm (§ 245, subd.

(a)(2)) (counts 3 and 5). As to the murder counts, the jury found true allegations that

Lewis personally discharged a firearm, causing death, within the meaning of section

12022.53, subdivisions (b), (c), and (d), and that he was convicted of more than one count

of murder in a single proceeding, within the meaning of section 190.2, subdivision (a)(3).

As to the counts of assault with a firearm, the jury found true allegations that Lewis

personally used a firearm within the meaning of section 12022.5, subdivisions (a) and (d).

The court sentenced Lewis to life without the possibility of parole plus an indeterminate

term of 65 years, consisting of 15 years to life on the second degree murder count and a

firearm enhancement of 25 years to life for each of the two murder counts. The court

also sentenced Lewis to a determinate term of 18 years four months on the two assault

counts and related firearm enhancements.

       Lewis contends that (1) there was insufficient evidence that he acted willfully,

deliberately, and with premeditation to support his conviction of first degree murder on


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

                                             2
count 1; (2) there was insufficient evidence to support his conviction of assault with a

firearm on count 3; (3) the trial court prejudicially erred by incorrectly instructing the

jury on the definitions of express and implied malice with respect to first and second

degree murder; and (4) the sentencing minute order and abstract of judgment incorrectly

state that his credit for time served of 1,008 days includes conduct credit of 127 days.

The People concede that at sentencing, the court awarded 1,008 days of presentence

custody credit and did not award any conduct credit. We will direct the court to correct

the sentencing minute order and abstract of judgment to reflect its oral pronouncement of

presentence credit for time served. We otherwise affirm the judgment.

                                              II.

                                           FACTS

       Assault on Angelina Goffredo (count 3)

       In December 2009, Lewis and Goffredo lived together in a house on Duncan Road

in Phelan. On December 24, they moved into a house on Smith Road that Lewis's close

friend, Amanda Quinn, was renting. At some point in December before the 24th, Lewis

telephoned Quinn and told her that he and Goffredo had been arguing. Lewis sounded

upset and Quinn heard Goffredo yelling at him in the background. Quinn became

concerned and went to Lewis and Goffredo's house with her one of her roommates.

       When Quinn and her roommate arrived at the house, the front door was unlocked.

They entered the house and went to Lewis and Goffredo's bedroom. The bedroom door

was closed but Quinn heard Lewis and Goffredo speaking in the bedroom. Quinn

                                              3
testified that she may have told police that Lewis and Goffredo were arguing, and also

may have told police that she heard Goffredo say, "Don't point that gun at me." She

thought that she "heard a gun being cocked back." She became worried and told Lewis

that she was going to kick the door down. Lewis told Quinn not to come into the

bedroom and to mind her own business or he would "shoot at" her.2 Quinn eventually

calmed down Lewis and then left the house to get her daughter. When she returned later

that day, Lewis was out of the bedroom.

      Assault on Amanda Quinn (count 5)

      After Lewis and Goffredo moved into the house that Quinn rented, they frequently

argued and fought. One of their roommates, Kayla Sudeta, testified that she witnessed an

argument between Lewis and Goffredo during which Lewis pointed a gun at Goffredo

and told her that "she needed to tell [someone] that they weren't together or he was going

to shoot her." On another occasion, Sudeta heard Lewis slap Goffredo while they were

arguing in the hallway. Goffredo ran out of the hallway and said that Lewis was a

woman beater and she was going to call the police. Sudeta asked Goffredo not to call the

police because she "thought [she (Sudeta)] had a warrant" and would go to jail if the

police came.

      Quinn was worried about Lewis's possession of guns because of the fighting

between him and Goffredo and because there were children in the house. There were

2      On redirect examination, Quinn said that she heard Lewis say, "Get away from the
door," but did not hear him say, "or I'll shoot," because she had walked away from the
door.
                                               4
also drugs in the house, and she was afraid that the police were going to come. She

testified that everyone who lived at the house, including her, used methamphetamine and

that she moved out of the house in February 2010 because "nobody was getting along in

the house because of the drugs, and I couldn't take it anymore."

       On the weekend of January 23, 2010, there was a party for Goffredo's 21st

birthday at the house. During the party, Lewis and Goffredo went into their bedroom and

got into an argument. Sudeta, Quinn, and other people attending the party gathered

outside the bedroom door and Quinn knocked on the door. From inside the bedroom

Lewis said, "Get away from the door or I'll shoot." A shot was then fired through the

door but no one was hit. Sudeta testified that she, Quinn, and another party guest were

standing by the door when the shot was fired.

       First and second degree murder (counts 1 and 2)

       Lewis's friend, Matthew Blaylock, testified that at the time Goffredo was shot and

killed, he was in a trailer, which he called his "shop," in the backyard of the Smith Road

residence. That morning, he and Lewis had gone together to a McDonalds and an auto

parts store. When they returned to the residence, Blaylock went to the shop to read an

installation guide for an oil pressure gauge and Lewis went into the house. Within an

hour, Lewis entered the shop and told Blaylock that he had accidentally shot Goffredo.

Blaylock ran into the house and Lewis followed him. Blaylock stepped into the doorway

of Lewis and Goffredo's bedroom and saw Goffredo lying on the bed. He immediately

turned around and went back outside and Lewis followed him. After the two men talked

                                             5
"for a brief second," Lewis called 911 and reported that he had shot his girlfriend in the

face. Blaylock estimated that about two and a half minutes passed from the time Lewis

came into the shop to tell him about the shooting and the time Lewis called 911.

         Police and paramedics from the fire department arrived at the scene and found

Goffredo lying on her back in a pool of blood on the floor of her bedroom. She was

pronounced dead at the scene. A handgun was on the floor next to her body, and there

was a bullet in her hair at the point of the exit wound. Bloodstains on the bed and floor

showed that Goffredo was lying on the bed when she was shot and was then moved to the

floor.

         In the bedroom, investigating officers found a fired cartridge case from a .357

magnum, a gun cleaning kit, and two unfired cartridges, one of which was a .357

magnum cartridge. They also found a book about pregnancy and a book about parenting,

entitled, respectively, "What to Expect When You're Expecting" and "What to Expect the

First Year." There was a hole in the bedroom door that had been patched on the outside

of the door.

         The medical examiner who performed Goffredo's autopsy testified that the cause

of death was a gunshot wound to the head. The bullet entered Goffredo's body on the left

side of the nose just below the left eye and exited the back of the head. There was a

pattern of gunpowder stippling just below the left eye, extending to the left ear, and on




                                               6
the left hand.3 Based on the density of the stippling pattern on Goffredo's face, and the

stippling on her left hand, the medical examiner thought that the gun was nine to 12

inches from Goffredo's face when it was fired, and that her left hand was up near her left

jaw. The examiner determined that Goffredo was 10 to 12 weeks pregnant at the time of

the shooting and that her death caused the death of the fetus.

       Police interviews

       Lewis was extensively interviewed by the police on the day of the incident and the

following day. He initially told the police that the shooting happened while he was

cleaning his gun, which he thought was unloaded. He said that the gun accidentally fired

as he pulled a brush away from the hammer. He noticed that Goffredo was bleeding and

immediately called 911. At the direction of the 911 dispatcher, he moved Goffredo from

the bed to the floor and performed CPR on her until the paramedics arrived.

       In a second interview, officers told Lewis that according to other people at the

house, there had been more conflict between him and Goffredo than he had represented.

The officers were told that Lewis had previously pointed a gun at Goffredo and "dry

fired" the gun—i.e., fired it when it was unloaded. Lewis denied that he had ever

threatened Goffredo or anybody else with a gun, and said that he did not recall ever

having dry fired the gun. He changed his explanation of how he had accidentally shot

Goffredo, saying that he pulled the hammer back and was not paying attention to where

3      The medical examiner explained that a stippling pattern is "caused by tiny
abrasions caused by unburned particles of gun powder that come out of the barrel of the
gun."
                                            7
he was "swinging [the gun]." He later said that he and Goffredo were talking about a

new apartment they were going to rent and thefts that had occurred at the apartment

complex. He told Goffredo that was why he got the gun and then pulled the gun's

hammer back. He began "playing" with the gun by twirling it "forward and backwards

and like pulling the hammer back and . . . guiding it slowly back into place and then it

goes off." He again told the officers that he thought the gun was unloaded at the time.

When a detective asked him if he was facing Goffredo when he was twirling the gun, he

said that "to [his] knowledge [he] was facing the TV area."

       During a third police interview, Lewis said that he and Goffredo had a minor

argument about "not taking care of what we were supposed to take care of." According

to Lewis, the argument had been about getting her car from her parents. Lewis told her

that he was going to "go do it" and was "taking care of what we need to take care of. . . ."

He asked Goffredo if she was "fucking gonna handle what [she] needed to and . . . she

said no . . . ." He then pulled the gun hammer back and the gun fired. He said that he

had the gun in his hand "to show authority" and that "I guess you can call it

intimidation . . . ." He wanted to say, "Hey, I'm handling my part[,] like why don't you

handle yours?" However, he thought that the gun went off before he was able to tell her

that. He did not remember pulling the trigger. He said that he did not have the gun "out

[of] aggression like that. I had it there so we could have a civilized conversation . . . ."

He pulled the hammer back because he "was playing with it like I said, just pulling it

back, shift forward, talking to her, trying to work something out."

                                               8
       When a detective asked why he had changed his story, Lewis said, "[T]here's

really no way . . . to explain it really, like the truth is the truth but it's still like so

farfetched and unbelievable due to just the way it happened." He said that he did not

intentionally pull the trigger and did not know the gun was loaded. Later in the

interview, Lewis told the detectives for the first time that Goffredo was pregnant and that

"that's one of the things that she was gonna go take care of. Like she's supposed to go

down and get proof of pregnancy so she can get on Medi-Cal and get [an] abortion."

       During his fourth police interview, on the day after the incident, Lewis reiterated

that he and Goffredo had been talking about "taking care of what we needed to be taking

care of and that's when . . . I went to intimidate her with the firearm and it went off in my

hand." Lewis thought the gun was unloaded and said that he was just trying to scare

Goffredo with it when he accidentally squeezed the trigger. Lewis maintained that they

were not having an argument; rather, they were civilly discussing her wanting him to go

get her car and his wanting her to go to Planned Parenthood to get proof of pregnancy.

The issue of Goffredo going to Planned Parenthood had been "an ongoing thing" for a

period of two weeks to a month, and Lewis agreed with the detective's statement that

"there's only a certain amount of time . . . you can deal with that."

       Lewis admitted that he had pointed the gun at Goffredo in the past, but said that he

did not remember whether he had done so out of anger or for intimidation. He thought it

was "[p]robably just a joke," and that he may have done it to get her out of his way if he

was trying to leave and she would not let him. On the morning of the shooting, Lewis

                                                  9
told Goffredo that he would find her a ride to Planned Parenthood, and Goffredo "kept

complaining." Lewis ignored her and fidgeted with the gun by repeatedly pulling the

hammer back and then easing it forward by squeezing the trigger with his thumb on the

hammer. The gun fired because he either squeezed the trigger too soon before he had his

thumb on the hammer, or his thumb slipped off the hammer.

       After a break, the police conducted their fifth and final interview with Lewis.

Lewis told the detectives that he knew the gun was loaded when he was pulling back and

releasing the hammer just before he shot Goffredo because he had loaded it with six

rounds before he went back into the house after working on the gun in the shop. After he

shot Goffredo, he took the remaining rounds out of the gun and threw them on the ground

in the backyard while he was waiting for his 911 call to be answered.

       Defense

       Callie Olson testified for the defense. She had dated Lewis for about a year and a

half approximately three years prior to the trial, and they currently were "really good

friends." During their relationship, they rarely argued and he had never been violent

toward her.

                                                 III.

                                          DISCUSSION

A.     Sufficiency of the Evidence to Support the First Degree Murder Conviction

       Lewis contends that his conviction of first degree murder must be reversed

because the prosecution presented insufficient evidence to support findings that he shot

                                            10
Goffredo with the intent to kill her and that he acted willfully, deliberately, and with

premeditation. The definition of first degree murder includes "any . . . willful, deliberate,

and premeditated killing . . . ." (§ 189.) The word "willful" means intentional. (People

v. Perez (1992) 2 Cal.4th 1117, 1123 (Perez).) However, "[a] verdict of deliberate and

premeditated first degree murder requires more than a showing of intent to kill.

[Citation.] 'Deliberation' refers to careful weighing of considerations in forming a course

of action; 'premeditation' means thought over in advance. [Citations.] '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 . . . ." ' " (People v. Koontz (2002) 27 Cal.4th 1041, 1080.)

       The California Supreme Court has "identified three categories of evidence relevant

to determining premeditation and deliberation: (1) events before the murder that indicate

planning; (2) a motive to kill; and (3) a manner of killing that reflects a preconceived

design to kill." (People v. Gonzalez (2012) 54 Cal.4th 643, 663, citing People v.

Anderson (1968) 70 Cal.2d 15, 26-27.) The Supreme Court has repeatedly pointed out

that these guidelines are descriptive rather than normative. (People v. Gonzalez, supra, at

p. 663.) "They are not all required [citation], nor are they exclusive in describing

evidence that will support a finding of premeditation and deliberation." (Ibid.)

       "Review on appeal of the sufficiency of the evidence supporting the finding of

premeditated and deliberate murder involves consideration of the evidence presented and

                                             11
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.] The standard of

review is the same in cases such as this where the People rely primarily on circumstantial

evidence. [Citation.] 'Although it is the duty of the jury to acquit a defendant if it finds

that circumstantial evidence is susceptible of two interpretations, one of which suggests

guilt and the other innocence, it is the jury, not the appellate court which must be

convinced of the defendant's guilt beyond a reasonable doubt. If the circumstances

reasonably justify the trier of fact's findings, the opinion of the reviewing court that the

circumstances might also be reasonably reconciled with a contrary finding does not

warrant a reversal of the judgment.' " (Perez, supra, 2 Cal.4th at p. 1124.)

       Viewing the evidence in the light most favorable to the judgment, we conclude

that substantial evidence supports Lewis's first degree murder conviction. The jury could

reasonably have inferred that Lewis intended to kill Goffredo from the fact that he shot

her in the face at nearly point blank range. (People v. Lashley (1991) 1 Cal.App.4th 938,

945 [shooting at point blank range "undoubtedly creates a strong inference that the killing

was intentional"]; People v. Lee (1987) 43 Cal.3d 666, 679 [15 to 20 feet is near point

blank range]; People v. Chinchilla (1997) 52 Cal.App.4th 683, 690 [for purposes of

                                              12
attempted murder, "[t]he act of firing toward a victim at a close, but not point blank,

range 'in a manner that could have inflicted a mortal wound had the bullet been on target

is sufficient to support an inference of intent to kill' "].)

       The jury could also reasonably have inferred that the killing was premeditated and

deliberate based on evidence of events that occurred before the shooting and the manner

of the shooting. After Lewis initially and repeatedly told the police that he thought the

gun was unloaded when he shot Goffredo, he ultimately admitted that he loaded the gun

with six rounds of ammunition after working on it in the shop just before he entered the

house on the morning of the shooting, and that he knew the gun was loaded when he was

pulling back the hammer and releasing it just before he shot Goffredo. The jury could

reasonably have viewed Lewis's loading the gun and then taking it in the bedroom,

together with his statement to the police that he "went to intimidate her with the firearm,"

as evidence of planning. The manner of killing—i.e., shooting Goffredo in the face at a

very close range—also supports a reasonable inference that the killing was deliberate.

(People v. Koontz, supra, 27 Cal.4th at p. 1082 [firing a shot at a vital area of the body at

close range indicates a deliberate intent to kill].)

       The jury's finding that Lewis premeditated the murder is further supported by

evidence of motive. Lewis made statements to the police from which the jury could

reasonably have inferred that he was upset with Goffredo because she intended to give

birth to their child instead of aborting the pregnancy, as evidenced by the books about

pregnancy and first-year parenting that were found in the bedroom where Lewis shot her.

                                                13
Lewis told the police that he wanted Goffredo to go to Planned Parenthood to obtain

proof of pregnancy "so she [could] get on Medi-Cal and get [an] abortion," and that the

issue of her going there had been "an ongoing thing" between them for two weeks to a

month. On the morning of the shooting, he told her that he would find her a ride to

Planned Parenthood. He said that he had "gotten her many rides before, but she wasn't

comfortable with the people . . . so she wouldn't take 'em." Goffredo was nearly three

months pregnant, and Lewis expressed concern about the limited amount of time

remaining to "deal with that." Lewis also told the police that just before the gun fired, he

asked Goffredo whether she was "fucking gonna handle what [she] needed to and . . . she

said no . . . ." He said that he had the gun in his hand "to show authority" and that "I

guess you can call it intimidation . . . ." He said that just before he shot her, he intended

to tell her, "Hey, I'm handling my part[,] like why don't you handle yours?" The jury

could reasonably have inferred that Lewis killed Goffredo because she refused to get an

abortion. The evidence of motive together with the evidence that Lewis shot Goffredo at

nearly point blank range with a gun that he admittedly knew was loaded sufficiently

supports the jury's finding that Lewis murdered Goffredo with premeditation and

deliberation.

B.     Jury Instructions on Express and Implied Malice

       Lewis contends that the court committed prejudicial error by instructing the jury

with a version of CALCRIM No. 520 that did not correctly define the types of malice

required for first and second degree murder. We independently review whether jury

                                              14
instructions correctly state the law. (People v. Posey (2004) 32 Cal.4th 193, 218.)

"Review of the adequacy of instructions is based on whether the trial court 'fully and

fairly instructed on the applicable law.' (People v. Partlow (1978) 84 Cal.App.3d 540,

558.) ' "In determining whether error has been committed in giving or not giving jury

instructions, we must consider the instructions as a whole . . . [and] assume that the jurors

are intelligent persons and capable of understanding and correlating all jury instructions

which are given." [Citation.]' [Citation.] 'Instructions should be interpreted, if possible,

so as to support the judgment rather than defeat it if they are reasonably susceptible to

such interpretation. ' " (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088.)

       The trial court instructed the jury with CALCRIM No. 520 as follows:

                 "The defendant is charged in Counts 1 and 2 with murder in
          violation of Penal Code Section 187.

                "To prove that the defendant is guilty of this crime, the
          People must prove that:

                "1. The defendant committed an act that caused the death of
          another person or a fetus; AND

                "2. When the defendant acted, he had a state of mind called
          malice aforethought; AND

                 "3. he killed without lawful excuse.

                "There are two kinds of malice aforethought, express malice
          and implied malice. Proof of either is sufficient to establish the state
          of mind required for murder.

                 "The defendant acted with express malice if he unlawfully
          intended to kill.


                                             15
       "The defendant acted with implied malice if:

       "1. He intentionally committed an act;

      "2. The natural, probable consequences of the act were
dangerous to human life;

     "3. At the time he acted, he knew his act was dangerous to
human life; AND

        "4. He deliberately acted with conscious disregard for human
or fetal life.

       "Malice aforethought does not require hatred or ill will
toward the victim. It is a mental state that must be formed before the
act that causes death is committed. It does not require deliberation
or the passage of any particular period of time.

       "It is not necessary that the defendant be aware of the
existence of a fetus to be guilty of murdering that fetus.

       "A fetus is an unborn human being that has progressed
beyond the embryonic stage after major structures have been
outlined, which occurs at seven to eight weeks of development.

        "An act causes death if the death is the direct, natural, and
probable consequence of the act and the death would not have
happened without the act. A natural and probable consequence is one
that a reasonable person would know is likely to happen if nothing
unusual intervenes. In deciding whether the consequence is natural
and probable, consider all of the circumstances established by the
evidence.

       "If you decide that the defendant committed murder, you
must then decide whether it is murder of the first or second degree."

   The court next instructed the jury with CALCRIM No. 521 as follows:




                                  16
                "The defendant is guilty of first degree murder if the People
          have proved that he acted willfully, deliberately and with
          premeditation. The defendant acted willfully if he intended to kill.
          The defendant acted deliberately if he carefully weighed the
          considerations for and against his choice and, knowing the
          consequences, decided to kill. The defendant acted with
          premeditation if he decided to kill before completing the acts that
          caused that death.

                 "The length of time a person spends considering whether to
          kill does not alone determine whether the killing is deliberate and
          premeditated. The amount of time required for deliberation and
          premeditation may vary from person to person and according to the
          circumstances. A decision to kill made rashly, impulsively, or
          without careful consideration is not deliberate and premeditated. On
          the other hand, a cold, calculated decision to kill can be reached
          quickly. The test is the extent of reflection not the length of time.

                "The requirements for second degree murder based on
          express or implied malice are explained in CALCRIM No. 520 . . . .

                 "The People have the burden of proving beyond a reasonable
          doubt that the killing was first degree murder, rather than a lesser
          crime. If the People have not met this burden, you must find the
          defendant is not guilty of first degree murder." (Italics added.)

       Lewis contends that because CALCRIM No. 520 informed the jury that there are

two kinds of malice, express and implied, and instructed them that "[p]roof of either is

sufficient to establish the state of mind required for murder," it incorrectly conveyed the

message that express malice is not a necessary element of first degree murder, and that

even if the jury found that he did not act with express malice, it could still convict him of

first degree murder based on a finding that he acted with implied malice. Lewis

complains that neither instruction explained under what circumstances the jury could find

him guilty of second degree murder. Lewis focuses only on CALCRIM No. 520 in

                                             17
contending that the instructions failed to properly inform the jury concerning the types of

malice required for first and second degree murder. We conclude that when considered

together, the versions of CALCRIM Nos. 520 and 521 given in this case clearly

differentiated between first and second degree murder, properly instructed the jury on

both offenses, and did not suggest that the jury could convict Lewis of first degree

murder based on a finding of implied malice.

       CALCRIM No. 520 instructed the jury that if it decided that Lewis committed

murder, it was required to decide whether the murder was of the first or second degree.

CALCRIM No. 521 instructed the jury that to find Lewis guilty of first degree murder, it

had to find beyond a reasonable doubt that he killed Goffredo willfully, deliberately and

with premeditation—i.e., that he intended to kill Goffredo, carefully weighed the

considerations for and against choosing to kill her, and knowing the consequences, made

the decision to kill her before he shot her. CALCRIM No. 521 further instructed the jury

that "[t]he requirements for second degree murder based on express or implied malice are

explained in CALCRIM No. 520." By referring the jury to CALCRIM No. 520 to decide

whether the killing met the requirements of second degree murder, CALCRIM No. 521

plainly instructed the jury that if it found that the killing was not deliberate and

premeditated and, therefore, not first degree murder, it was to decide whether the killing

was second degree murder based on either express or implied malice as explained in

CALCRIM No. 520.



                                              18
       Thus, CALCRIM Nos. 520 and 521 together instructed the jury that if it found

Lewis not guilty of first degree murder, it could find him guilty of second degree murder

if it found that he either "unlawfully intended to kill" Goffredo but did so without

premeditation and deliberation, or that he intentionally committed an act that he knew

was dangerous to human life, and deliberately acted with conscious disregard for human

life. The instructions together adequately explained the difference between first and

second degree murder and under what circumstances the jury could find Lewis guilty of

second degree murder. Considering CALCRIM No. 521's clear and unambiguous

directive that the jury could convict Lewis of first degree murder only if it found beyond

a reasonable doubt that he intended to kill Goffredo, carefully weighed the considerations

for and against choosing to kill her, and knowing the consequences, made the decision to

kill her before he shot her, we reject Lewis's contention that the instructions erroneously

suggested that the jury could convict him of first degree murder based on a finding of

implied malice.

C.     Sufficiency of the Evidence to Support the Conviction of Assault with a Firearm
       on Count 3

       Lewis challenges the sufficiency of the evidence to support his conviction of

assault with a firearm against Goffredo in December 2009, before he and Goffredo

moved into the house on Smith Road. "To determine whether there is substantial

evidence to support a conviction we must view the record in a light most favorable to

conviction, resolving all conflicts in the evidence and drawing all reasonable inferences


                                             19
in support of conviction. We may conclude that there is no substantial evidence in

support of conviction only if it can be said that on the evidence presented no reasonable

fact finder could find the defendant to be guilty on the theory presented." (People v.

Nguyen (1993) 21 Cal.App.4th 518, 528-529, citing People v. Johnson (1980) 26 Cal.3d

557, 578.)

       " 'An assault is an unlawful attempt, coupled with a present ability, to commit a

violent injury on the person of another.' (§ 240.) Assault requires the willful commission

of an act that by its nature will probably and directly result in injury to another (i.e., a

battery), and with knowledge of the facts sufficient to establish that the act by its nature

will probably and directly result in such injury." (People v. Miceli (2002) 104

Cal.App.4th 256, 269.) "To point a loaded gun in a threatening manner at another

(especially if accompanied by threats to shoot . . . ) constitutes an assault, because one

who does so has the present ability to inflict a violent injury on the other and the act by

its nature will probably and directly result in such injury." (Ibid.; People v. Escobar

(1992) 11 Cal.App.4th 502, 505 [evidence that victim was aware defendant was holding a

gun concealed inside a leather purse and heard the gun being cocked was sufficient to

support conviction of assault with a firearm].)

       We conclude that substantial evidence supports Lewis's assault conviction on

count 3. Viewed in the light most favorable to the judgment, the evidence established

that on the day of the assault, Lewis's friend Quinn entered Lewis and Goffredo's house,

stood outside their closed bedroom door, and heard them arguing inside the bedroom.

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Quinn heard Goffredo say, "Don't point that gun at me." Quinn then heard the sound of a

gun being cocked. She told Lewis that she was going to kick the door down, and Lewis

responded by telling her not to come into the bedroom and to mind her own business or

he would shoot at her. The jury could reasonably infer from Lewis's threat to shoot at

Quinn that the gun that Quinn heard being cocked was loaded. After Lewis killed

Goffredo, he admitted to the police that he had previously pointed a gun at her and told

her to get out of his way when she would not let him leave. Based on this evidence, the

jury could reasonably find that Lewis committed an assault with a firearm against

Goffredo by pointing a loaded gun at her in a threatening manner. (People v. Miceli,

supra, 104 Cal.App.4th at p. 269.)

D.     Custody Credits

       Lewis contends, and the People concede, that the sentencing minute order and

abstract of judgment in this case incorrectly state that his credit for time served of 1,008

days includes conduct credit of 127 days. At the sentencing hearing, the court awarded

1,008 days of credit for days served and did not award any conduct credit. Accordingly,

we direct the court to correct the sentencing minute order and abstract of judgment to

reflect the court's award of presentence custody credit.




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                                      DISPOSITION

       The trial court is directed to correct the December 7, 2012 sentencing minute order

and the abstract of judgment to reflect the court's oral pronouncement at the sentencing

hearing awarding Lewis 1,008 days of presentence custody credit and no conduct credit.

In all other respects the judgment is affirmed.



                                                                               AARON, J.

WE CONCUR:



              McCONNELL, P. J.



                    HUFFMAN, J.




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