Filed 12/24/13 P. v. Guzman CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                  DIVISION TWO


THE PEOPLE,                                                          B245583

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. YA082065)
         v.

GERRALDO GUZMAN,

         Defendant and Appellant.




         APPEAL from a judgment of the Superior Court of Los Angeles County.
Steven R. Van Sicklen, Judge. Affirmed.


         Alan Siraco, 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, Scott A. Taryle and Eric J.
Kohm, Deputy Attorneys General, for Plaintiff and Respondent.


                                        _________________________
       Appellant Gerraldo Guzman appeals from the judgment in which a jury convicted
him of attempted willful, deliberate and premeditated murder (Pen. Code., §§ 667, 187,
subd. (a).) The jury also found true the allegations that appellant personally used a
deadly weapon, a knife (Pen. Code, § 12022, subd. (b)(1)), and personally inflicted great
bodily injury (Pen. Code, § 12022.7, subd. (a)). The trial court sentenced appellant to life
in prison with the possibility of parole, plus an additional four years.
       Appellant contends there was no substantial evidence of premeditation and
deliberation, the trial court gave prejudicially erroneous jury instructions, and appellant
received ineffective assistance of counsel. We affirm.
                                          FACTS
       On August 21, 2011, the victim, Angie Hernandez (Hernandez), went to a bar in
Redondo Beach, California, with her friend Charmaine Mettler (Mettler) and Mettler’s
boyfriend. Hernandez had several beers. Appellant was at the bar and repeatedly asked
Mettler if he could buy her a drink. Each time Mettler responded that she already had a
date. Mettler left the bar around 11:00 p.m. with her boyfriend. Hernandez stayed at the
bar.
       Around 2:00 a.m., Hernandez left the bar with some other friends. She told her
friends to go on without her because she lived down the street and she could walk home
alone. Hernandez crossed the street and sat down on a bench for two to three minutes
while she decided if she would go home or go back to the bar. She decided to go back to
the bar.
       As Hernandez began walking back to the bar, appellant started walking towards
her from the parking lot. Appellant then rushed towards Hernandez and placed his hands
on her neck. Hernandez immediately began to struggle with appellant. She could not
scream loudly because she had lost her voice earlier. During the struggle, she fell to the
ground and appellant fell on top of her. Appellant held Hernandez down, and she was
unable to get out from underneath him. As Hernandez struggled, appellant removed a
knife from his right pants pocket and raised it towards her neck. When Hernandez tried
to push appellant’s hand away, appellant cut her fingers with the knife. Hernandez

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became tired and unable to put up a fight any longer. She felt the knife poke her neck
and then the blade stabbing her. She thought she was going to die. Appellant looked
angry. Hernandez then pleaded in Spanish with appellant to stop, repeating that she had
children at home.
       Scott Fraser (Fraser), who lived near the bar, was walking his dog at the time of
the attack. He noticed the struggle and heard a strange noise he had never heard before,
“like a gurgling scream, moan, all combined into one.” Fraser yelled “Hey,” and
appellant suddenly stopped and got off Hernandez. Appellant turned and stared at Fraser
before running away.
       A band that had performed at the bar that night was loading its equipment into a
truck when appellant approached and stood silently watching for about five minutes. One
of the band members watched appellant walk away. About five to 10 minutes later,
Hernandez walked over to the band, bleeding and saying she had been stabbed.
       Two band members told the bartender to call the police. Based on their
description of appellant, the bartender directed the police to appellant’s house. When the
police arrived at appellant’s house, he was in the living room. Appellant matched the
description of the suspect and had blood on his left sock and the left side of his face, but
he was not wearing a shirt. The officers ordered appellant and the other people in the
house to go outside. When asked his name, appellant gave a fake name.
       The police searched appellant’s house. Inside a trash can at the rear of the house,
officers recovered a pair of bloodied jeans and a folding knife with a camouflage handle.
There was blood on the blade and handle. Officers took Fraser to a field show-up, where
he identified appellant as the man who had attacked Hernandez.
       Meanwhile, at the hospital, Hernandez received eight stitches to her neck wound,
and surgery to repair a tendon in her right ring finger. Her treating physician was
particularly concerned about her neck wound, because of its proximity to her major
arteries, veins, and airway.




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       Hernandez was shown a photographic six pack, and identified two men, including
appellant. In court, she identified appellant as her attacker. Both the bartender and
Mettler identified appellant from the six pack.
       DNA taken from appellant’s sock, the recovered jeans and the knife matched
Hernandez’s DNA.
                                      DISCUSSION
I. Substantial Evidence Supports the Jury’s Finding of Premeditation and
Deliberation
       Appellant contends the evidence was insufficient to support the jury’s finding that
he acted with premeditation and deliberation. We disagree.
       A. Standard of Review
       In reviewing a challenge to the sufficiency of evidence, we review the entire
record in the light most favorable to the judgment to determine whether it contains
substantial evidence, i.e., evidence which is reasonable, credible, and of solid value, such
that a reasonable trier of fact could have found beyond a reasonable doubt that the
attempted murder was willful, deliberate, and premeditated. (People v. Mendoza (2011)
52 Cal.4th 1056, 1068–1069 (Mendoza); People v. Johnson (1980) 26 Cal.3d 557, 578.)
In determining whether the record contains substantial evidence of premeditation and
deliberation, an appellate court draws all reasonable inferences in support of the finding.
(People v. Perez (1992) 2 Cal.4th 1117, 1124.) When the circumstances reasonably
justify the jury’s findings, our opinion that the circumstances might also be reasonably
reconciled with contrary findings does not warrant reversal of the judgment. (Mendoza,
supra, 52 Cal.4th at p. 1069.)
       B. Attempted Murder
       An attempted murder is “premeditated and deliberate if it occurred as the result of
preexisting thought and reflection rather than unconsidered or rash impulse.” (People v.
Stitely (2005) 35 Cal.4th 514, 543.) “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

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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.]” (People v.
Koontz (2002) 27 Cal.4th 1041, 1080; Mendoza, supra, 52 Cal.4th at p. 1069.)
       In People v. Anderson (1968) 70 Cal.2d 15, our Supreme Court identified three
types or categories of evidence pertinent to the determination of premeditation and
deliberation: (1) planning activity, (2) motive, and (3) manner of killing. (Id. at p. 27.)
The Supreme Court has made clear, however, that Anderson “‘“did not purport to
establish an exhaustive list that would exclude all other types and combinations of
evidence that could support a finding of premeditation and deliberation.” [Citations.]’”
(Mendoza, supra, 52 Cal.4th at p. 1069.)
                  1. Planning Activity
       Appellant argues there was no evidence that he planned the attack because he was
only carrying an ordinary folding knife and he did not pull out the knife prior to the
attack. We reject appellant’s claim that a folding knife is not a deadly weapon, as
compared to a switchblade. A knife is an inherently dangerous object, and, in this case,
nearly killed the victim. The jury could easily infer—from the fact that appellant was
armed with a knife at a bar—that he had considered the possibility of a violent encounter
that included the use of deadly force. As the People note, there was no reason a knife
was necessary to attack a defenseless woman, who had been drinking and who was alone,
other than if there was a preconceived plan to use deadly force. (See People v. Lee
(2011) 51 Cal.4th 620, 636 [evidence of planning where defendant brought a loaded
handgun with him on the night the victim was killed, indicating he had considered the
possibility of a violent encounter]; People v. Steele (2002) 27 Cal.4th 1230, 1250
[evidence defendant carried the fatal knife into the victim’s home makes it “‘reasonable
to infer that he considered the possibility of homicide from the outset’”]; People v. Elliot
(2005) 37 Cal.4th 453, 471 [same].)




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                  2. Motive
       Appellant argues there was no evidence of motive, since he had no prior or current
relationship with Hernandez. In closing argument, the prosecutor suggested to the jury
that because Hernandez’s friend, Mettler, had declined appellant’s offers to buy her a
drink, he was similarly rejected by Hernandez. Hernandez testified that appellant looked
angry when he was stabbing her. (See People v. Lunafelix (1985) 168 Cal.App.3d 97,
102 [observing that the law does not require a “‘rational’” motive for murder; even anger,
however “‘shallow and distorted,’” at the way the victim spoke to the defendant may be a
motive for murder].) But even if the evidence did not support these motives, the lack of
any apparent motive does not undercut the verdict, since motive is not necessary for
premeditation. (People v. Edwards (1991) 54 Cal.3d 787, 814.)
                  3. Manner of Killing
       Appellant argues that his stabbing of Hernandez’s neck was “ad hoc,”
“unsuccessful” and only resulted in a “superficial wound.” But the evidence showed that
appellant sought out Hernandez, pinned her down and prevented her escape despite her
struggles, stabbed her hand when she tried to fight off the knife, stabbed her in the neck,
and did so near major arteries, veins, and her trachea. (See People v. Pride (1992) 3
Cal.4th 195, 248 [jury could infer that murder was premeditated and deliberated where
victim was stabbed multiple times while pinned down and rendered helpless].)
       In sum, we are satisfied that there was substantial evidence of premeditation and
deliberation.
II. CALCRIM No. 3426 and Voluntary Intoxication
       Appellant contends that the judgment must be reversed because the trial court
prejudicially erred when instructing the jury on voluntary intoxication. Specifically, he
argues that CALCRIM No. 3426 was legally erroneous as given because it failed to
instruct the jury that voluntary intoxication is relevant to the mental states of
premeditation and deliberation.




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       The jury was instructed with CALCRIM No. 3426 as follows: “You may consider
evidence, if any, of the defendant’s voluntary intoxication only in a limited way. You
may consider that evidence only in deciding whether the defendant acted with the intent
to kill. [¶] A person is voluntarily intoxicated if he or she becomes intoxicated by
willingly using any intoxicating drug, drink, or other substance knowing that it could
produce an intoxicating effect, or willingly assuming the risk of that effect. [¶] In
connection with the charge of Attempted Murder, the People have the burden of proving
beyond a reasonable doubt that the defendant acted with the intent to kill. If the People
have not met this burden, you must find the defendant not guilty of Attempted Murder.
[¶] You may not consider evidence of voluntary intoxication for any other purpose.
Voluntary intoxication is not a defense to Assault with a Deadly Weapon, Personal Use
of Deadly Weapon or Personal Infliction of Great Bodily Injury.”
       Appellant correctly asserts that voluntary intoxication is admissible to support a
reasonable doubt that the defendant actually premeditated or deliberated a charged
attempted murder. “Evidence of voluntary intoxication is admissible solely on the issue
of whether or not the defendant actually formed a required specific intent, or, when
charged with murder, whether the defendant premeditated, deliberated, or harbored
express malice aforethought.” (Pen. Code, § 29.4, subd. (b); People v. Castillo (1997) 16
Cal.4th 1009, 1016; People v. Turk (2008) 164 Cal.App.4th 1361, 1368.) The instruction
as given was therefore incomplete (not legally erroneous) because it did not instruct the
jury that it could also consider voluntary intoxication for the purpose of determining
whether appellant actually premeditated or deliberated.
       But the error was harmless under either Chapman v. California (1967) 386 U.S.
18, 24 or People v. Watson (1956) 46 Cal.2d 818, 836. Evidence of appellant’s
intoxication was negligible. Appellant points to the testimony of two witnesses: Mettler
and one of the responding officers, Sergeant Fabian Saucedo. The following colloquy
took place on Mettler’s direct testimony: “Q. Did it appear to you that the defendant had
been drinking? [¶] A. I can’t say either way. No. I didn’t notice that. There was
nothing obvious. [¶] . . . [¶] Q. Did it appear he had difficulty walking. [¶] A. No. [¶]

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Q. Did it appear his eyes were red or watery? [¶] A. No. [¶] Q. Did you smell alcohol
coming from him? [¶] A. No.” On cross-examination, Mettler repeated that she did not
see appellant drinking, or swaying, “or anything like that.” Mettler did not remember
telling a detective that appellant was “drunk,” but added that if she had said that, her
“memory [was] probably . . . better at that time.”
       When Sergeant Saucedo was asked if he smelled alcohol “coming from” appellant,
he responded, “I believe I did, Yes.” But Sergeant Saucedo also testified that that it did
not appear to him that appellant was “under the influence” of alcohol, that he did not
recall seeing appellant’s eyes looking watery or bloodshot, and that he did not see
appellant stumbling or having difficulty walking. Appellant points to no other evidence
of his intoxication.
       The evidence showed that appellant had the presence of mind to pull out a knife
from his pocket while pinning Hernandez down, open the blade, and stab her neck, as
opposed to a less critical area of her body. Appellant also had the presence of mind to
flee the scene immediately when he recognized that a witness saw him, to attempt to
discard all evidence of his crime, and to give officers a fake name. The jury could
reasonably infer that appellant was not so intoxicated that he was unable to premeditate
and deliberate killing Hernandez.
III. No Ineffective Assistance of Counsel
       Appellant contends that the judgment must be reversed because he received
ineffective assistance of counsel. Specifically, he argues that his counsel was ineffective
for failing to request that CALCRIM No. 3426 be modified to include that voluntary
intoxication was relevant to whether appellant premeditated and deliberated murder.
       To establish a claim of ineffective assistance of counsel, a defendant must prove
that (1) trial counsel’s representation was deficient because it fell below an objective
standard of reasonableness under prevailing professional norms, and (2) the deficiency
resulted in prejudice to the defendant. (People v. Maury (2003) 30 Cal.4th 342, 389;
Strickland v. Washington (1984) 466 U.S. 668, 687 (Strickland).) On appeal, the
reviewing court “need not determine whether counsel’s performance was deficient before

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examining the prejudice suffered by the defendant as a result of the alleged
deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of
lack of sufficient prejudice, . . . that course should be followed.” (Strickland, supra, at
p. 697; In re Cox (2003) 30 Cal.4th 974, 1019–1020.) “[P]rejudice must be affirmatively
proved; the record must demonstrate ‘a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine confidence in the
outcome.’ [Citation.]” (People v. Maury, supra, 30 Cal.4th at p. 389; Strickland, supra,
at pp. 693–694.) It is not enough for a defendant to show that errors had some
conceivable effect on the outcome of the case. (People v. Ledesma (1987) 43 Cal.3d 171,
217.)
        Because we have already concluded that the instructional error was harmless in
light of the paltry evidence of intoxication and the jury’s reasonable inference that
appellant was not so intoxicated that he was unable to premeditate and deliberate murder,
the failure of appellant’s trial counsel to request the suggested modification of
CALCRIM No. 3426 was not prejudicial.
IV. CALCRIM No. 372 and Flight
        Appellant contends that the judgment should be reversed because the standard
instruction on flight given to the jury was impermissibly argumentative.
        As an initial matter, appellant has forfeited his claim by failing to object to
CALCRIM No. 372 in the trial court. (People v. Loker (2008) 44 Cal.4th 691, 705–706
[by not objecting to unmodified form of standard flight instruction, defendant forfeited
appellate argument that the instruction should have been modified].)
        In any event, appellant’s claim fails on the merits. The trial court instructed the
jury with CALCRIM No. 372 as follows: “If the defendant fled immediately after the
crime was committed, that conduct may show that he was aware of his guilt. If you
conclude that the defendant fled, it is up to you to decide the meaning and importance of
that conduct. However, evidence that the defendant fled cannot prove guilt by itself.”



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         Appellant argues that the instruction is argumentative because it is not neutral and
impermissibly invites the jury to infer his guilt. A jury instruction is argumentative if it is
“‘“of such a character as to invite the jury to draw inferences favorable to one of the
parties from specified items of evidence.” [Citations.]’” (People v. Lewis (2001) 26
Cal.4th 334, 380, quoting People v. Hines (1997) 15 Cal.4th 997, 1067–1068.) But
appellant’s argument does not consider the instruction as a whole. It is well-established
that the propriety of jury instructions is determined from “‘the entire charge of the court,
not from a consideration of parts of an instruction or from a particular instruction.’”
(People v. Jeffries (2000) 83 Cal.App.4th 15, 22; People v. Paysinger (2009) 174
Cal.App.4th 26, 31.)
         The instruction is phrased in permissive, not mandatory, terms, using the words
“if” and “may.” The jury is also specifically instructed that “it is up to you” to decide the
meaning and importance of flight, if the jury concludes the defendant fled. More
importantly, the final sentence of the instruction states that “evidence that the defendant
fled cannot prove guilt by itself.” As the reviewing court stated in People v. Paysinger,
supra, 174 Cal.App.4th at page 31, this final sentence “positively refutes” the argument
that the instruction suggests that evidence of flight is sufficient to show guilt.
Appellant’s argument, therefore, is without merit based on a review of the instruction as a
whole.
                                       DISPOSITION
         The judgment is affirmed.

                                                   ASHMANN-GERST, J.


We concur:

         BOREN, P. J.
         FERNS, J.*

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

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