Filed 12/15/14 P. v. Najdawi CA1/4
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                 DIVISION FOUR


THE PEOPLE,
         Plaintiff and Respondent,
                                                                     A135699
v.
TEYSEER ZAID NAJDAWI,                                                (San Mateo County
                                                                     Super. Ct. No. SC068726A)
         Defendant and Appellant.


         Defendant Teyseer Zaid Najdawi shot his best friend at close range, 11 times in
the head. While in jail, awaiting trial for murder, defendant brutally attacked his
cellmate, nearly killing him. Defendant pleaded not guilty and not guilty by reason of
insanity. A jury convicted defendant of first degree murder regarding the shooting death
of his friend and found true the firearm and great bodily injury enhancements. The jury
also convicted defendant of attempted murder and assault with great bodily injury
regarding the attack of his cellmate. The trial court determined that defendant was sane1
at the time the crimes were committed and sentenced him to a seven-year term for the
attempted murder count, to be served consecutive to a term of 50 years-to-life on the
murder count. Defendant appeals raising numerous claims of error, including
instructional errors, prosecutorial misconduct, ineffective assistance of counsel, and
sentencing error. We affirm.

1
       Defendant waived his right to a jury at the sanity phase of the proceedings and
agreed that the trial court could decide the issue of his sanity based on the medical
reports.

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                                  I. BACKGROUND
A.    Murder of Jack Chu
      At some time prior to the killing, defendant purchased a .40 caliber Glock
handgun in Reno, Nevada. Defendant had put a laser sight on the gun to help him aim.
Defendant acted like a tough guy and carried the gun around with him all of the time.
Defendant was a braggart, who made grandiose statements about himself. He claimed he
was a bounty hunter even though his friends knew he was not.
      Defendant also claimed that someone was trying to kill him. Defendant, however,
was never able to articulate what prompted him to think that someone was trying to kill
him. Nevertheless, he consistently claimed that someone was trying to kill him
regardless of whether he was under the influence of drugs/alcohol or sober. People close
to defendant believed he was paranoid.
      On July 7, 2008, defendant went out drinking in San Francisco with his best
friend, Jack Chu. A mutual friend, Gray Byun, met up with the men at The Bottom’s Up
bar, where they drank together for about an hour and a half. Defendant used his brother’s
credit card to buy drinks for the group and laughed about using the card without his
permission. Byun could see that defendant was carrying a .40 caliber Glock handgun that
night, which was the same gun that defendant had purchased in Reno, Nevada and had
brandished at a bachelor party several weeks before.
      Around 10:00 or 10:30 p.m., defendant and Chu left the bar and went to the
Dragon Lounge. Byun had to work the next morning, so he went home. Defendant and
Chu had a few more drinks at the Dragon Lounge, where the bartender described
defendant as being “very loud” and “annoying.” At one point, the bar manager had to
intervene. Chu apologized for defendant’s behavior and explained to the bartender that
defendant had just “popped some [V]icodin.” While at the bar, Chu and defendant called
their friend, Eric Brewer, on the telephone. Both Chu and defendant talked to Brewer
about Darryl Harvey, another friend of theirs who had taken some of Chu’s marijuana.
Chu told Brewer he wanted to “beat [Harvey’s] ass.” Defendant repeatedly said that he
wanted to “put a bullet” in Harvey. Brewer did not take Chu or defendant seriously. He


                                            2
just thought his friends were drunk; he could not imagine either of them actually getting
violent. Brewer invited Chu and defendant over to his apartment in Millbrae, but he
never got an actual answer about whether they would come by that night.
       Defendant and Chu left the Dragon Lounge around 1:00 a.m. Surveillance footage
from a store down the street from the Dragon Lounge showed the men outside the bar,
with defendant walking drunkenly behind Chu with a gun in his hand; the red beam of the
laser sight visible in the video.
       Around 1:30 a.m., Brewer saw Chu’s car pull up outside of his apartment on
Lincoln Circle in Millbrae. The car sat there for about five minutes with no one getting
out of it. Brewer then heard at least six gunshots but saw no movement in the car. He
thought that defendant and Chu were “just messing around,” shooting the gun. About a
minute later, Brewer saw Chu’s car drive away down an alley.
       Breanna Benson was outside an apartment on Lincoln Circle around 1:30 a.m.,
talking on the phone with her boyfriend. She saw a white car pull to an abrupt stop on
the street. While she was talking on the phone, she heard about eight “firecracker”
sounds from the car and saw flashes from the passenger seat of the car. She also heard
the metallic clicking of shell casings falling on the street by the front passenger window,
and saw a red laser on the building across the street. Benson saw the passenger get of the
car, walk around to the driver’s side, open the door and push what appeared to be a
person over to the passenger’s side. The passenger then got in the car and drove off
down the alley.
       Several other people heard gunshots on Lincoln Avenue on the night of the
murder. Rosemary Alva heard at least five gunshots outside. She looked outside and
saw a white car in the street with its headlights on and the passenger door open.
Domingo Loniza heard about eight gunshots from the street and then tires screeching.
After the police arrived, Loniza inspected the apartment for damage and found a bullet
lodged in the back window about two feet from where he had been in bed. Valeraiy
Pashchenko heard four to five gunshots in rapid succession. He found a bullet hole in the
wall of his bedroom.


                                             3
       The 911 dispatcher began receiving calls about gunshots being fired on Lincoln
Circle at 1:39 a.m., and the first officer responded on the scene by 1:41 a.m. Officers
found six bullets and six shell casings at the scene, as well as what was later identified as
Chu’s blood and brain matter in the street.
       Meanwhile, defendant drove Chu’s car to a residential neighborhood in
Burlingame and parked the car about a mile from defendant’s mother’s house. He left
Chu’s dead body in the car and went to his mother’s house. Defendant’s brother, Tarik,
heard defendant making loud “banging” noises and confronted defendant. Defendant
challenged Tarik to fight, gesturing at him and putting his hand in his coat. Tarik
retreated to his room.
       Defendant’s mother also got up and confronted defendant about the noise he was
making. She noticed that defendant had blood on his face, hands, and clothes. Defendant
told her that he had gotten in a fight with “some Filipinos” in the parking lot of a bar. He
also told his mother that he and Chu did not leave the bar together, explaining that the
two had “split up,” with defendant taking the train home.
       Chu’s friends and family became concerned when he did not come home that
night, and they went to The Bottom’s Up and the Dragon Lounge the next day seeking
information on his whereabouts. At the Dragon Lounge, they found out that Chu had
been there with defendant the previous night. Chu’s family called defendant’s mother,
hoping to talk to defendant. Defendant was not home at the time; after his mother told
him that the Chus had called, defendant left town.
       On July 10, 2008, a man on his morning walk noticed a dead body slumped over
in a car. The man saw “blood streaming” from the car door, “a hole in the window,” and
“flies all over the body.” Officers called to the scene noted that the body was “in the
early stages of decomposition,” just “beginning to rot,” and “there was maggot infestation
of the body.” The body was identified as Chu.
       Informed that Chu had last been seen with defendant, officers went to defendant’s
mother’s house. There, they retrieved defendant’s clothes from the night of the murder,
including his jeans and jacket, which were covered with Chu’s blood. In a storage locker


                                              4
in the garage, they also recovered a box for a laser sight, gun cleaning supplies, and an
envelope with two spent shell casings from defendant’s gun that matched the 12 shell
casings found at the murder scene and in Chu’s car. The serial number on the envelope
also matched paperwork from the Nevada gun shop where defendant had purchased his
.40 caliber Glock.
       Following Chu’s murder, defendant spent some time in Redding, where he met
John Sparks. The men spent about five days together before defendant was arrested in
connection with Chu’s death. During that time, Sparks saw defendant cleaning a black,
.40 caliber Glock handgun with a bandanna. Sparks noted that defendant was careful to
handle the gun only with the bandanna and not touch it with his hands. Defendant
mentioned to Sparks that things had gotten “a little heated” in the Bay Area, and that
defendant needed to “get rid of some car keys.” Defendant suggested that they go for a
walk by the river, during which defendant stopped on a bridge and leaned over towards
the water. They turned around and returned to defendant’s motel room; Sparks never saw
the gun or the keys again. Defendant was arrested in Redding soon thereafter; officers
were unable to locate his gun.
       A pathologist testified that Chu was shot 11 times in the head, with nine bullets
penetrating his head from the right side, one grazing his nose, and one grazing the left
side of his head. The majority of the entrance wounds had powder burns, indicating that
Chu was shot from a close range. This was consistent with “an individual seated in the
passenger’s side of a vehicle and simply blasting away firing his weapon repeatedly at the
side of the driver’s head.” There were no other injuries on Chu to suggest that he and
defendant had fought before he was shot.
B.     Attempted Murder of John Lynch
       In September 2008, defendant shared a two-man cell at the San Mateo County Jail
with John Lynch. For the first few days of their time as cellmates, Lynch “had no
problems with” defendant. However, one night, defendant mentioned “something about
some disrespect and something had happened in Millbrae.” Lynch told defendant he did
not want to discuss defendant’s case. At one point, defendant “started making robotic


                                             5
noises” and “moving his hands up and down through the cell.” The next morning, Lynch
got up to use the bathroom. On his way to the toilet, Lynch was attacked by defendant.
Defendant hit Lynch, wrapped his arm around Lynch’s neck, and pulled him to the
ground. Lynch hit his head against the urinal, and defendant put him in a headlock,
punching the back of Lynch’s head and choking him. Lynch began to lose consciousness
and awoke only when two officers rushed in and pulled defendant off him. Lynch
appeared “lifeless” after the attack and was “hardly breathing.” He suffered a number of
head injuries and “had bruises all over.” An attending officer thought Lynch might die
overnight. Lynch suffered short-term and long-term memory loss and stated that his
“whole life has changed” as a result of the attack.
                                    II. DISCUSSION
A.     Instruction on Voluntary Manslaughter
       Defendant contends that the trial court should have instructed the jury on
voluntary manslaughter, either on the theory that Chu’s death was an unintentional killing
without malice, during the commission of a felony assault with a deadly weapon, as
described in People v. Garcia (2008) 162 Cal.App.4th 18, 31 (Garcia), or based on
imperfect self-defense (CALCRIM No. 571). However, the California Supreme Court
overruled Garcia to the extent it recognized a killing without malice during an inherently
dangerous assaultive felony as a third variety of voluntary manslaughter (People v.
Bryant (2013) 56 Cal.4th 959, 964). Recently the court has also held that imperfect or
unreasonable self-defense cannot be based solely on a defendant’s delusions (People v.
Elmore (2014) 59 Cal.4th 121,129-130 (Elmore)).
       1.     Background
       Prior to closing arguments, defense counsel requested the trial court to instruct the
jury with CALCRIM No. 571, the imperfect self-defense voluntary manslaughter
instruction. Defense counsel argued that the instruction was warranted because “there
has been evidence that raises a question of imperfect self-defense,” including testimony
from several witnesses purportedly showing that defendant was delusional and carried a
gun because he thought “people were trying to kill him.” In opposition, the prosecutor


                                             6
argued that “[n]either imperfect self-defense nor heat of passion can reduce what would
otherwise be a murder to manslaughter where the provocation, or perceived necessity to
defend is predicated on delusions and/or hallucinations.” Specifically, the prosecutor,
citing People v. Mejia-Lenares (2006) 135 Cal.App.4th 1437, 1461 (Mejia-Lenares),
argued an imperfect self-defense theory of manslaughter cannot be based solely on the
defendant’s delusions because the defense is limited to an unreasonable misinterpretation
of facts as they actually exist, while a delusion is a “ ‘perception of facts not grounded in
reality.’ ” (Mejia-Lenares, supra, 135 Cal.App.4th at p. 1453.) The prosecutor also
noted that, even if imperfect self-defense could, in theory, be based solely on a delusion,
“there’s absolutely no objective evidence of any sort of actual provocation or actual
danger in this record” to support the instruction.
       The trial court refused to instruct the jury on voluntary manslaughter, explaining
that defendant’s alleged “paranoid delusion” that some “amorphous or vague group of
people” was after him did not warrant a manslaughter instruction where there was “no
evidence” of any “actual provocation or danger from [the victim].”
       2.     Applicable Law
       “California statutes have long separated criminal homicide into two classes, the
greater offense of murder and the lesser included offense of manslaughter. The
distinguishing feature is that murder includes, but manslaughter lacks, the element of
malice. [Citations.]” (People v. Rios (2000) 23 Cal.4th 450, 460.) Penal Code2
“[s]ection 192 establishes three kinds of manslaughter: voluntary, involuntary, and
vehicular. Only voluntary manslaughter is at issue here. Punishment is mitigated for this
offense, which the law deems less blameworthy than murder because of the attendant
circumstances and their impact on the defendant’s mental state. Two factors may
preclude the formation of malice and reduce murder to voluntary manslaughter: heat of
passion and unreasonable self-defense. (People v. Beltran [(2013)] 56 Cal.4th 935, 942,
951; People v. Blakeley (2000) 23 Cal.4th 82, 87-88.) Heat of passion is recognized by


2
       All further undesignated statutory references are to the Penal Code.

                                              7
statute as a mitigating factor. (§ 192, subd. (a).) Unreasonable self-defense is founded
on both statute and the common law. (People v. Anderson (2002) 28 Cal.4th 767, 782.)”
(Elmore, supra, 59 Cal.4th at p. 133.)
       Here, defendant, relying on Garcia, supra, 162 Cal.App.4th 18, invites us to
consider a third type of voluntary manslaughter, to wit: a killing committed in the course
of an inherently dangerous assaultive felony. Defendant’s reliance on Garcia is
misplaced. Recently, in Bryant, supra, 56 Cal.4th 959, our Supreme Court expressly
disapproved Garcia, to the extent it suggests that a killing without malice in the
commission of an inherently dangerous assaultive felony constitutes voluntary
manslaughter. (Bryant, supra, 56 Cal.4th at p. 970.) In so holding, the Court explained
that “the offenses that constitute voluntary manslaughter—a killing upon a sudden
quarrel or heat of passion (§ 192, subd. (a)), a killing in unreasonable self-defense
[citation], and, formerly, a killing committed by one with diminished capacity
[citation]—are united by the principle that when a defendant acts with an intent to kill or
a conscious disregard for life (i.e., the mental state ordinarily sufficient to constitute
malice aforethought), other circumstances relating to the defendant’s mental state may
preclude the jury from finding that the defendant acted with malice aforethought. But in
all of these circumstances, a defendant convicted of voluntary manslaughter has acted
either with an intent to kill or with conscious disregard for life.” (Bryant, supra, 56
Cal.4th at pp. 969-970.) However, “[a] defendant who has killed without malice in the
commission of an inherently dangerous assaultive felony must have killed without either
an intent to kill or a conscious disregard for life. Such a killing cannot be voluntary
manslaughter because voluntary manslaughter requires either an intent to kill or a
conscious disregard for life.” (Id. at p. 970.)
       After the instant appeal was fully briefed, our Supreme Court rendered its decision
in Elmore, in which the Court, after thoroughly reviewing the law of murder and
manslaughter and the evolution of unreasonable self-defense, held that unreasonable self-
defense is not available when the belief in the need to defend oneself is purely delusional.
(Elmore, supra, 59 Cal.4th at pp. 129-130, 132-139.) In so holding, the court explained


                                               8
that “unreasonable self-defense involves a mistake of fact. (In re Christian S. (1994) 7
Cal.4th 768, 779, fn. 3 (Christian S.).) A purely delusional belief in the need to act in
self-defense may be raised as a defense, but that defense is insanity. Under our statutory
scheme, a claim of insanity is reserved for a separate phase of trial. At a trial on the
question of guilt, the defendant may not claim self-defense based on insane delusion.”
(Elmore, supra, 59 Cal.4th at p. 130.)
       In Elmore, the court expressly approved Mejia-Lenares, supra, 135 Cal.App.4th
1437, which holds that purely delusional acts are excluded from the scope of
unreasonable self-defense. (Elmore, supra, 59 Cal.4th at p. 136.) “Mejia-Lenares
reasoned that because unreasonable self-defense is a ‘species of mistake of fact [citation]
. . . it cannot be founded on delusion. In our view, a mistake of fact is predicated upon a
negligent perception of facts, not, as in the case of a delusion, a perception of facts not
grounded in reality. A person acting under a delusion is not negligently interpreting
actual facts; instead, he or she is out of touch with reality.’ (Mejia-Lenares, supra, 135
Cal.App.4th pp. 1453-1454.)” (Elmore, supra, 59 Cal.4th at p. 136, fn. omitted.)
       Agreeing with the Mejia-Lenares court, Elmore concluded that unreasonable self-
defense “has no application when the defendant’s actions are entirely delusional. A
defendant who makes a factual mistake misperceives the objective circumstances. A
delusional defendant holds a belief that is divorced from the circumstances. The line
between mere misperception and delusion is drawn at the absence of an objective
correlate. A person who sees a stick and thinks it is a snake is mistaken, but that
misinterpretation is not delusional. One who sees a snake where there is nothing
snakelike, however, is deluded. Unreasonable self-defense was never intended to
encompass reactions to threats that exist only in the defendant’s mind.” (Elmore, supra,
59 Cal.4th at pp. 136-137.)
       3.     Analysis
       When a defendant is charged with murder, the trial court has a sua sponte duty to
instruct the jury on a lesser included offense where “substantial evidence” is adduced at
trial to support the lesser charge. (People v. Stitely (2005) 35 Ca1.4th 514, 551.)


                                              9
Specifically, an instruction on imperfect self-defense is warranted “whenever the
evidence is such that a jury could reasonably conclude that the defendant killed the victim
in the unreasonable but good faith belief in having to act in self-defense.” (People v.
Barton (1995) 12 Ca1.4th 186, 201 (Barton).) “This does not mean, however, that trial
courts must instruct sua sponte on unreasonable self-defense in every murder case.”
(Ibid.) Rather, “the need to do so arises only when there is substantial evidence that the
defendant killed in unreasonable self-defense, not when the evidence is ‘minimal and
insubstantial.’ ” (Ibid., fn. omitted.)
       Here, the trial court had no duty to sua sponte instruct the jury on the purported
“third” variety of voluntary manslaughter described in Garcia, supra, 162 Cal.App.4th at
page 31 because as discussed ante (see § II.A.2), our Supreme Court has held, it does not
exist. (Bryant, supra, 56 Ca1.4th at p. 970.) In so holding, the Court made clear that it
had “never suggested that [voluntary manslaughter] could be committed without either an
intent to kill or a conscious disregard for life,” and thus, Garcia’s creation of a third
variety of “assaultive” manslaughter without malice was without legal support. (Id. at
pp. 969-970.) Inasmuch as the trial court did not have a sua sponte duty to instruct on a
theory of manslaughter which our Supreme Court has found not to exist, the trial court
did not err by failing to instruct on this form of manslaughter.
       Equally unavailing is defendant’s contention that the trial court had a duty to
instruct on a theory of imperfect or unreasonable self-defense. There was no evidence
whatsoever, let alone substantial evidence, of any objective circumstances that defendant
“acted under an unreasonable mistake of fact—that is, the need to defend himself against
imminent peril of death or great bodily injury.” (Christian S., supra, 7 Cal.4th at p. 779,
fn. 3, italics added.) Rather, defendant claims his request for an instruction on imperfect
self-defense should have been granted, even though his perception of a threat was entirely
delusional. This claim fails as a matter of law. As Elmore explains, “California cases
reflect the understanding that unreasonable self-defense involves a misperception of
objective circumstances, not a reaction produced by mental disturbance alone. And the
statutory scheme, though it permits evidence of mental illness to show that the defendant


                                              10
did not harbor malice, reserves the issue of legal insanity for a separate phase of trial . . .
[A] belief in the need for self-defense that is purely delusional is a paradigmatic example
of legal insanity.” (Elmore, supra, 59 Cal.4th at pp. 134-135.)
       Defendant argues his case is analogous to People v. Wells (1949) 33 Cal.2d 330
(Wells) and that he was entitled to an unreasonable self-defense instruction. Like the
defendant in Elmore, defendant here misreads Wells. (Elmore, supra, 59 Cal.4th at
pp. 137-138.) “Wells was not a homicide case but the prosecution of a prison inmate for
assault with malice aforethought . . . (Wells, at p. 334.) Wells had been ejected from a
disciplinary hearing for disrupting the proceedings. In the hall outside, he encountered
the guard who had brought charges against him. Wells ‘seized a heavy crockery cuspidor
and threw it’ at the guard, severely injuring him. (Id. at p. 338.) “Wells testified that he
had no intent to hit the guard, but only picked up the cuspidor to defend himself from
another guard who struck him with a baton. The blow caused him to fall and release the
cuspidor. (Wells, supra, 33 Cal.2d at p. 339.) The defense also offered testimony from
prison physicians that Wells suffered from an abnormal physical and mental condition,
not amounting to insanity. According to the doctors, he was in a state of tension that
rendered him highly sensitive to external stimuli and abnormally fearful for his personal
safety. As a result, he reacted to apparent threats more violently and unpredictably than
an average person would. (Id. at pp. 344-345.) [The California Supreme Court] reasoned
that if Wells had ‘acted only under the influence of fear of bodily harm, in the belief,
honest though unreasonable, that he was defending himself from such harm by the use of
a necessary amount of force, then . . . the essential element of “malice aforethought”
would be lacking.’ (Id. at p. 345 . . .)” (Elmore, supra, 59 Cal.4th at p. 137.)
       Defendant cites Wells for the proposition that “a state of paranoia coupled with an
external stimuli—as opposed to a delusion alone—will support a defense of unreasonable
self-defense.” His reliance on Wells is misplaced. Unlike in the instant case, “Wells held
a ‘belief which, although skewed by mental illness, was nevertheless factually based.’
(Mejia-Lenares, supra, 135 Cal.App.4th at p. 1449.) There was no evidence that Wells’s
perception of a threat was delusional. To the contrary, he claimed his actions were an


                                               11
attempt to defend himself from an actual baton-wielding guard. (Wells, supra, 33 Cal.2d
at p. 339.) The expert testimony was that Wells was abnormally sensitive to external
stimuli. (Id. at pp. 344-345, [italics omitted].) Wells does not support [the] claim that
unreasonable self-defense requires no objective basis.” (Elmore, supra, 54 Cal.4th at pp.
137-138.) Here, unlike in Wells, there is no evidence that defendant’s belief in the need
to defend himself was factually based.
         Inasmuch as “purely delusional perceptions of threats to personal safety cannot be
relied upon to claim unreasonable self-defense” (Elmore, supra, 59 Cal.4th at pp. 138-
139), the trial court did not err in refusing to instruct the jury with this theory.
         Accordingly, the trial court did not err in refusing to instruct the jury on voluntary
manslaughter.
B.       Instruction on Malice
         Although we have rejected defendant’s predicate contention that the jury should
have been instructed with CALCRIM No. 571, we also address his specific claim that the
jury should have been instructed that the prosecution was required to prove beyond a
reasonable doubt that defendant was not acting in unreasonable self-defense.
         Defendant contends that without the last portion of CALJIC No. 571 being given,
the jury was given an incomplete definition of malice. This derivate claim necessarily
fails.
         The jury was instructed with CALCRIM No. 520, which explains that there “are
two kinds of malice aforethought, express malice and implied malice[,]” which it defines
as follows: “The defendant acted with express malice if he unlawfully intended to kill.
[¶] The defendant acted with implied malice if: [¶] 1. He intentionally committed an act;
[¶] 2. The natural and 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 life.” (CALCRIM No. 520.)
The instruction further specified that “[m]alice 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



                                               12
death is committed. It does not require deliberation or the passage of any particular
period of time.”
       For the first time on appeal, defendant maintains that this definition is incomplete
and that jury should have also been instructed with the last sentence of CALCRIM
No. 571, to wit: “The People have the burden of proving beyond a reasonable doubt that
the defendant was not acting in (imperfect self-defense/ [or] imperfect defense of
another). If the People have not met this burden, you must find the defendant not guilty
of murder.”
       Even exercising our discretion and addressing this otherwise forfeited claim, it
nevertheless utterly fails on the merits. (See People v. Williams (1998) 17 Cal.4th 148,
161-162, fn. 6.) It stands to reason that if the trial court had no duty to instruct with
CALCRIM No. 571 in its entirety, it certainly had no duty to instruct with its last
sentence. Even assuming for the sake of argument that defendant’s claim had some
plausible merit, there is absolutely no evidence in the record that defendant was acting in
self-defense. Defendant never made a statement to the police, he also did not testify at
trial or present any evidence that the victim was out to get him. Rather, the scant
evidence upon which defendant relies to support his theory of imperfect self-defense is
generic testimony from friends and family that defendant was paranoid and carried a gun
because he thought “someone” was trying to kill him. Faced with a complete absence of
evidence of imperfect self-defense, the trial court was not obligated to instruct with
CALCRIM No. 571 or any portion of it.
       Finally, CALCRIM No. 520 has repeatedly been upheld as “adequately
inform[ing] the jury” of the law of murder and the prosecution’s burden regarding malice.
(See, e.g., People v. Canizalez (2011) 197 Cal.App.4th 832, 857.) The instruction
explains that the prosecution has the burden of proving that the defendant acted with
express malice, because he “unlawfully intended to kill,” or implied malice because:
“(1) He intentionally committed an act; [¶] (2) The natural and 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


                                              13
for human life.” Moreover, CALCRIM Nos. 220 and 521, both of which were given,
further explain the prosecution’s burden to prove the defendant’s guilt beyond a
reasonable doubt. Because there was no evidence supporting an instruction on imperfect
self-defense, and the instructions given clearly and fully explained the prosecution’s duty
to prove defendant’s guilt beyond a reasonable doubt, the trial court was not required to
instruct the jury with the last line of CALCRIM No. 571.
       Accordingly, we reject defendant’s subsidiary claim that the instructions as given
impaired his defense.
C.     Instruction on Hallucinations
       Defendant next contends the trial court erred by not instructing with CALCRIM
No. 627 or a similar instruction telling the jury that an unreasonable, subjective delusion
could negate premeditation and deliberation. Defendant argues the court’s failure to
instruct the jury was prejudicial because the instruction would have allowed the jury to
find the premeditation allegation was not true.
       At the hearing on the proposed jury instructions, the prosecutor, not defense
counsel, had originally proposed giving CALCRIM No. 627. However, following the
hearing, the prosecutor withdrew the instruction without objection by defense counsel,
and with no further request having been made, the instruction was not given.
       1.      Applicable Law
       A trial court has a sua sponte duty to give defense instructions supported by
substantial evidence and consistent with the defendant’s theory of the case. (People v.
Barton, supra, 12 Cal.4th at pp. 194-195; People v. Baker (1999) 74 Cal.App.4th 243,
252 (Baker).) However, instructions that relate “particular facts to the elements of the
offense charged” are pinpoint instructions that a trial court has no sua sponte duty to issue
to a jury. (Barton, supra, 12 Cal.4th at p. 197.) “ ‘Such instructions relate particular
facts to a legal issue in the case or ‘pinpoint’ the crux of a defendant’s case . . . .’ ”
(People v. Jennings (2010) 50 Cal.4th 616, 675.) They are “ ‘required to be given upon
request when there is evidence supportive of the theory, but they are not required to be
given sua sponte.’ ” (Ibid., italics added.)


                                               14
       “[E]vidence of a hallucination—a perception with no objective reality—is
inadmissible to negate malice so as to mitigate murder to voluntary manslaughter but is
admissible to negate deliberation and premeditation so as to reduce first degree murder to
second degree murder.” (People v. Padilla (2002) 103 Cal.App.4th 675, 677 (Padilla ).)
CALCRIM No. 627, which is based on Padilla, states: “A hallucination is a perception
not based on objective reality. In other words, a person has a hallucination when that
person believes that he or she is seeing or hearing [or otherwise perceiving] something
that is not actually present or happening. [¶] You may consider evidence of
hallucinations, if any, in deciding whether the defendant acted with deliberation and
premeditation. [¶] The People have the burden of proving beyond a reasonable doubt
that the defendant acted with deliberation and premeditation. If the People have not met
this burden, you must find the defendant not guilty of first degree murder.”
       2.     Analysis
       Defendant contends that the trial court had a sua sponte duty to instruct the jury
with CALCRIM No. 627, which would have allowed the jury to consider defendant’s
alleged hallucinations on the issue of premeditation and deliberation. We disagree. The
California Supreme Court has held that the effect of a defendant’s mental disease or
disorder on his or her mental state amounts to a pinpoint instruction, which a trial court
has no sua sponte duty to provide. (People v. Ervin (2000) 22 Cal.4th 48, 91 (Ervin);
People v. Saille (1991) 54 Cal.3d 1103, 1120 (Saille) [trial court had no duty to sua
sponte instruct on voluntary intoxication to negate premeditation].) The Ervin case is
particularly instructive. In Ervin, the defendant was convicted of first degree murder.
(Ervin, supra, 22 Cal.4th at p. 66.) The defendant asserted the trial court erred by failing
sua sponte to instruct the jury regarding the effect of a mental disease, defect, or disorder
on his ability to premeditate and deliberate. (Id. at p. 89.) The California Supreme Court
held that instructions regarding the actual effect of the defendant’s mental disease or
disorder on his mental state and the ability to premeditate and deliberate were instructions
“in the nature of pinpoint instructions required to be given only on request.” (Id. at
pp. 90-91.)


                                             15
       Here, to the extent defendant maintained that his hallucinations precluded him
from manifesting the requisite deliberation and premeditation, he was attempting to raise
a doubt regarding the intent element of the crime based on facts particular to his case,
rather than raising a defense based on a general principle of law. In other words,
“hallucination” is not a general defense, but rather a theory that attempts to negate the
intent element of the crime depending upon the individual facts attached to a specific
case. Thus, the court did not have a sua sponte duty to instruct with CALCRIM No. 627
without a specific request to do so.
       Defendant points out that the bench note to CALCRIM No. 627 states: “The court
has a sua sponte duty to give defense instructions supported by substantial evidence and
not inconsistent with the defendant’s theory of the case. [Citations.]” (Judicial Council
of Cal., Crim. Jury Instns. (2014) Bench Notes to CALCRIM No. 627, p. 391, boldface
omitted.) As to pattern instructions, it is well recognized that we independently assess
whether the instructions correctly state the law, and the legal adequacy of a pattern
instruction is reviewed de novo. (People v. Cole (2004) 33 Cal.4th 1158, 1210; People v.
Posey (2004) 32 Cal.4th 193, 218.) When the correctness of instructions is at issue, an
appellate court does not simply defer to the fact that the language was taken from pattern
instructions, but instead carefully reviews those instructions to determine whether they
correctly state the law. (See, e.g., People v. Ibarra (2007) 156 Cal.App.4th 1174, 1179-
1199; People v. Vang (2009) 171 Cal.App.4th 1120, 1129-1131; People v. Paysinger
(2009) 174 Cal.App.4th 26, 30.) The same principle should apply to review of the bench
notes to a pattern instruction.
       The bare assertion in CALCRIM No. 627’s bench note, that it is a sua sponte
instruction, cites to two cases—Baker and Barton—which we have already discussed
above. (Bench Notes to CALCRIM No. 627 at p. 396.) Notwithstanding the bench note,
these cases address a court’s general duty to instruct on lesser included offenses and
defenses, and they do not address Padilla or the concerns discussed in Ervin or Saille.
(Barton, supra, 12 Cal.4th at pp. 194-195; Baker, supra, 74 Cal.App.4th at p. 252.)



                                             16
       Finally, even disregarding for the moment that defendant was required to request
the challenged instruction, his argument fails for another, arguably more fundamental
reason. Jury instructions, whether they are to be given sua sponte or requested by the
parties, must be supported by substantial evidence. (See People v. Enraca (2012) 53
Cal.4th 735, 760; Barton, supra, 12 Cal.4th at pp. 194-195.) In the instant case,
defendant failed to present any evidence, let alone substantial evidence, that he was
operating under any hallucinations at the time he killed Chu. Rather, only generic
references to defendant’s paranoia and his belief that “someone” was trying to kill him
were mentioned in passing at trial.
       Accordingly, on this record, we conclude the trial court did not err in failing to
instruct the jury with CALCRIM No. 627, as this instruction was neither requested nor
supported by substantial evidence.
D.     Prosecutorial Misconduct
       Defendant claims that the prosecutor committed prejudicial misconduct during his
closing argument by using an improper analogy to demonstrate premeditation, by telling
the jury that evidence of defendant’s mental illness was more appropriately considered at
the sanity phase of the trial, and by arguing that reasonable doubt had to be based on
reason and the evidence. According to defendant, these instances of misconduct lowered
the prosecution’s burden of proof, which prevented the jury from considering whether the
evidence showed beyond a reasonable doubt that he committed first degree murder.
       1.     Background
       During his closing argument, the prosecutor explained the law of murder and
attempted murder, as well as the doctrines of express and implied malice, malice
aforethought, premeditation, and deliberation. With regard to deliberation, the prosecutor
argued that defendant had “formed a deadly state of mind,” had “determined to kill
somebody,” and had been “thinking about killing somebody for quite a while.” When
discussing premeditation, the prosecutor explained: “What is premeditation? It is a cold-
blooded killing. That’s all. No more, no less. A cold-blooded killing. [¶]
Premeditation. You have to think about it for a long time? You have to plan? No. Any


                                             17
killing in cold blood is a killing with premeditation under the law. [¶] An example, you
are at a picnic. A mosquito lands on your arm. You look down, you reach over, you kill
that mosquito. That would be the first degree murder of a mosquito because you killed
the mosquito and you just don’t care. That’s how much thought you gave it. You gave it
enough thought to form the intent.”
         Defense counsel did not object to this statement or request an admonition from the
trial court. Instead, during his own closing, defense counsel responded to the mosquito
analogy: “The analogy that [the district attorney] gives you is a common one for
prosecutors. They always try to explain premeditation. And two common analogies is
[sic] the mosquito at the picnic or the light switch at the door. And the analogy it only
takes a second. It takes a second, a moment in time, to turn on the light switch. But you
wanted the lights in the room to come on. It’s the same analogy used all the time. [¶]
The difficulty is you don’t know. You are not there watching the person at the picnic
swat the mosquito. In this case, you don’t know what occurred during that time the car
pulled up on Lincoln Circle. You don’t have the ability to look inside [defendant’s]
head.”
         The prosecutor also suggested that the scant evidence presented of defendant’s
purported delusions was more relevant at the sanity phase of the trial than at the guilt
phase. He stated that the jury’s role in the guilt phase was to “determine what crimes, if
any, the defendant committed.” He informed the jury that if they found defendant had
committed any crimes, they might be presented with more psychiatric evidence at the
sanity phase to determine whether defendant was “not legally responsible for his
conduct.” The prosecutor noted that defendant had not offered any actual evidence of his
delusions at the guilt phase and discredited the theory that defendant was delusional or
drunk when he killed Chu, by pointing out that defendant “wasn’t drunk and taking
Vicodin when he tried to kill [his cellmate] Lynch.” The prosecutor also explained to the
jury that they might be presented with additional evidence at the sanity phase: “Whatever
psychiatric explanation there might be for [the shooting], you may hear in a different part
of . . . this trial.” “His brother describes him as paranoid and delusional. Fine. We will


                                             18
talk about that during the sanity phase if we can talk about it at all. But what he did, what
you are to determine in the first phase is first degree murder. That’s what he did.” “We
may get into his state of mind in the second phase of this case. The law doesn’t ask you
to return a verdict that says, we, the jury, find that [defendant] is a good person or a bad
person, or he’s mentally ill or he’s not mentally ill, or there’s an excuse for his behavior
or not an excuse for his behavior. [¶] In this phase of the trial, the question posed to you
is what did he do.” “It can be hard to explain people’s behavior. And we may approach
that in the second phase of this trial. But right now, you are faced with the naked facts of
what this defendant did.” “His sanity we may talk about on the basis of mental illness,
but it doesn’t change the crime.”
       Defense counsel did not object to these statements, but instead attempted to rebut
during his own closing the prosecution’s argument regarding consideration of defendant’s
purported delusions. Specifically, defense counsel countered: “[The prosecution] brings
up the sanity phase. It’s not your job to decide the sanity phase at this point. But it
doesn’t relieve you of the obligations . . . You can’t simply say, well, this is evidence we
are not going to consider till we have the sanity phase. You can’t do that. When you
took the oath, it’s to consider all the evidence.”
       Defense counsel went on to describe defendant’s paranoia on the night of Chu’s
death, and defendant’s fear “that he was going to be killed.” He noted that defendant had
said “that people were out to kill him,” and “that’s why he needed to have a gun.”
Defense counsel argued that there was “no evidence that he planned that night to kill
[Chu],” and the defendant’s “delusional fear [was] something that you can consider when
it goes to premeditation and deliberation.”
       On rebuttal, the prosecutor discredited the notion that defendant had been laboring
under a delusion when he killed Chu, noting that he certainly was “aware enough of his
circumstances to drive that car to Millbrae [sic], and make up a lie, and leave the body—
and, by the way, take . . . Chu’s cell phone.” He also posed a hypothetical to the jury to
explain how they could consider any evidence of mental illness at the guilt phase:
“Mr. Najdawi is sitting at the bar, and he’s delusional, and he’s paranoid, and he’s taken


                                              19
drugs, and he’s drunk, and he’s completely drunk. And in walks a motorcycle police
officer and puts his helmet there. And Mr. Najdawi, because he’s delusional and drunk
and he’s taken drugs and he’s all messed up, he thinks it would be a good idea to take that
helmet and try and steal [] it. [¶] Now he’s never going to get away with it. The cop is
sitting there. He’s drunk. It is stupid. It is not smart. It is irrational, but he does it. He’s
guilty. He’s guilty. He has done the act. He grabs that helmet; he heads for the door; he
is guilty of that offense. [¶] It can be the world’s worst idea. It can be a product of
mental illness . . . . We don’t say Mr. Najdawi is a paranoid, alcoholic, drugged up person
so he kills people; what do you say we let him go . . . [¶] There are ways in which we
handle these things. You decide what he did and then we address the other issue of his
mental illness or his mental defense should we get to that stage.” Defense counsel did
not object to any of these statements.
       Finally, the prosecutor told the jury, “[i]f you have a reasonable doubt, it has to be
based on reason and the evidence.” He also made clear that defendant “has no burden
whatsoever to present evidence,” but noted that defendant had not refuted the evidence
supporting the prosecution’s version of events. He argued that, given the defense’s
access to the prosecution’s evidence, “Don’t you think if there was a problem with the
DNA, you would have heard it, or something the matter with the phone records or the
ballistics?” Defense counsel objected to these statements as “shift[ing] the burden,” and
the trial court sustained the objection. However, defense counsel did not request that the
trial court admonish the jury. The prosecutor moved on by telling the jury not to invent
its own evidence, but to decide the case based on “what came from the witness stand and
the physical exhibits.”
       At the close of the prosecutor’s rebuttal, defense counsel moved for a mistrial or a
curative instruction on the basis that “the prosecutor shifted the burden.” The prosecutor
opposed the motion, arguing that he “did not suggest the defendant was obliged to supply
anything.” Rather, he merely “called the evidence uncontroverted” and “said explicitly
the defendant didn’t have to present any evidence but did make it clear they had access to
all our files.” The prosecutor also pointed out that he “didn’t go back to the issue once


                                              20
the court sustained the objection.” The trial court denied the motion for a mistrial, stating
that by sustaining the objection, “the jury is aware of the fact that no one can argue that
the defendant need to produce evidence.” The trial court stated that a “further instruction
will just probably . . . exacerbate the problem to the extent that there was a problem
which was minor to begin with which was cured by the court sustaining the objection.”
When the mistrial motion was reasserted at a later proceeding, the trial court stated that it
“would concur with [the prosecution’s] analysis of the distinction between commenting
on the defendant’s lack of testimony as opposed to the production of for lack of
evidence.”
       2.     Applicable Law
       Prosecutorial misconduct is reversible error under the federal Constitution only
“when it infects the trial with such unfairness as to make the conviction a denial of due
process.” (People v. Morales (2001) 25 Cal.4th 34, 44.) A prosecutor’s conduct that
does not render the trial fundamentally unfair is misconduct under California law “only if
it involves the use of deceptive or reprehensible methods to attempt to persuade” the trier
of fact. (Ibid.) “It is improper for the prosecutor to misstate the law generally, and in
particular, to attempt to lower the burden of proof.” (People v. Ellison (2011) 196
Cal.App.4th 1342, 1353.) However, “when the claim focuses upon comments made by
the prosecutor before the jury, the question is whether there is a reasonable likelihood
that the jury construed or applied any of the complained-of remarks in an objectionable
fashion.” (People v. Samayoa (1997) 15 Ca1.4th 795, 841.) Moreover, “ ‘a prosecutor is
given wide latitude during argument’ ” (People v. Wharton (1991) 53 Cal.3d 522, 567),
and appellate courts do not analyze isolated words or phrases, but instead “must view the
statements in the context of the argument as a whole” (People v. Dennis (1998) 17
Ca1.4th 468, 522). Additionally, “even otherwise prejudicial prosecutorial argument,
when made within proper limits in rebuttal to arguments of defense counsel, do not
constitute misconduct.” (People v. McDaniel (1976) 16 Ca1.3d 156, 177.)
       To encourage prompt detection and correction of error, courts have held that “lack
of a timely and meaningful objection forfeits or waives the claim [on appeal].” (People


                                             21
v. Scott (1994) 9 Ca1.4th 331, 351.) To preserve a claim of prosecutorial misconduct
specifically, the defendant must make a timely objection at trial and request an
admonition to the jury. (People v. Najera (2006) 138 Cal.App.4th 212, 224.) A
defendant is excused from the necessity of objecting and requesting an admonition if
either would have been futile. (Ibid.)
       3.     Mosquito Analogy and Comments on Delusions
       Defendant argues that the prosecutor committed misconduct by making the
mosquito analogy and by arguing that the jury need not consider defendant’s delusions.
Defense counsel did not object to these statements and did not seek an admonition.
Nevertheless, defendant argues these issues are cognizable on appeal because they
involve his fundamental right to due process. Alternately, he urges us to exercise our
discretion and reach the merits of these otherwise forfeited claims. He further attempts to
avoid forfeiture by claiming that his defense counsel’s failure to object below constituted
ineffective assistance of counsel. We decline to address the merits of these forfeited
claims, and instead proceed to defendant’s claim of ineffective assistance of counsel,
which we shall discuss post at section II.E. of this opinion.
       4.     Reasonable Doubt Comment
       Defendant contends that the prosecutor committed misconduct during closing
argument when he made the following comment regarding reasonable doubt: “If you
have a reasonable doubt, it has to be based on reason and the evidence.” The prosecutor
further argued that defense counsel “has no burden whatsoever to present evidence. And
P.S. he hasn’t got any . . .[¶] . . . Don’t you think if there was a problem [with the state’s
evidence] . . . you would have heard about it.” Defense counsel objected, arguing that the
prosecutor was shifting the burden; the trial court sustained the objection, but did not
issue a curative instruction. The prosecutor continued, “The evidence in this case is
uncontroverted. And I respectfully suggest that you not invent evidence of your own.
You go with what came from the witness stand and the physical exhibits. [¶] What are
the elements of second degree murder? A person is killed intentionally. Period. The
end. Unlawfully. [¶] There’s no doubt about that in this case whatsoever. And [defense


                                              22
counsel] . . . conceded that his client is guilty of second [degree murder]. [¶] The
evidence of first degree murder is premeditation. That is an issue you will consider. But
please consider all of the evidence taken together . . . .”
       Defendant claims that by these comments, the prosecutor misstated the law
regarding reasonable doubt, and that the trial court erred by failing to issue a curative
instruction and/or denying his request for a mistrial based on these comments. We
disagree. First, we doubt that in context, these statements by the prosecutor, which were
raised in his final closing argument, was misconduct rather than a fair response to defense
counsel’s argument, which urged the jury to find reasonable doubt on the issue of
premeditation and deliberation based on the lack of affirmative evidence that defendant
said he was going to kill someone. Viewed in the context of the argument as a whole,
“there is [not] a reasonable likelihood that the jury construed or applied any of the
complained-of remarks in an objectionable fashion.” (People v. Berryman (1993) 6
Cal.4th 1048, 1072, disapproved on other grounds, People v. Hill (1998) 17 Cal.4th 800,
823, fn. 1 (Hill).)
       Second, we cannot agree with defendant that the above-quoted remark is similar to
one found improper by our Supreme Court in Hill, supra, 17 Cal.4th 800. In Hill, the
prosecutor improperly shifted the burden of proof to the defendant when she explained
reasonable doubt to the jury as follows: “ ‘[I]t must be reasonable. It’s not all possible
doubt. Actually, very simply, it means, you know, you have to have a reason for this
doubt. There has to be some evidence on which to base a doubt.’ . . . ‘There must be
some evidence from which there is a reason for a doubt. You can’t say, well, one of the
attorneys said so.’ (Italics added.)” (Hill, supra, 17 Cal.4th at p. 831.) The California
Supreme Court explained that “to the extent [the prosecutor] was claiming there must be
some affirmative evidence demonstrating a reasonable doubt, she was mistaken as to the
law, for the jury may simply not be persuaded by the prosecution’s evidence. [Citation.]
On the other hand, [the prosecutor] may simply have been exhorting the jury to consider
the evidence presented, and not attorney argument, before making up its mind.” (Hill,
supra, 17 Cal.4th at pp. 831-832.) The Supreme Court said the question was arguably


                                              23
close, but it concluded it was reasonably likely that the jury understood the comments “to
mean defendant had the burden of producing evidence to demonstrate a reasonable doubt
of his guilt.” (Id. at p. 832.) The Supreme Court reversed the verdict in Hill, but it did so
based upon “the many acts of prosecutorial misconduct and other errors that plagued that
trial.” (People v. Booker (2011) 51 Cal.4th 141, 186.)
       Unlike Hill, this case was not plagued with multiple acts of prosecutorial
misconduct, and the prosecutor was not trying to explain to the jury the concept of
reasonable doubt. Rather, the prosecutor commented on the weakness of the evidence to
support the defense theory that defendant was delusional and irrational. He also exhorted
the jury to consider the evidence as a whole, and affirmatively stated that the defense had
no burden to produce any evidence. There was no risk that the jury would construe the
prosecutor’s challenged remarks to mean defendant had the burden of proving reasonable
doubt. “A distinction clearly exists between the permissible comment that a defendant
has not produced any evidence, and on the other hand an improper statement that a
defendant has a duty or burden to produce evidence, or a duty or burden to prove his or
her innocence.” (People v. Bradford (1997) 15 Cal.4th 1229, 1340.)
       Finally, the trial court clearly instructed the jury that the burden of proof rested
with the prosecution (CALCRIM No. 220), and that the jury must follow its instructions,
not the attorneys’ comments on the law (CALCRIM No. 200). It also properly instructed
the jury on the use of circumstantial evidence, advising the jurors that “when considering
circumstantial evidence, you must accept only reasonable conclusions and reject any that
are unreasonable.” (CALCRIM No. 224.) Considering the record as a whole, it is not
reasonably likely the jury construed the prosecutor’s argument to mean defendant had the
burden of producing evidence to demonstrate a reasonable doubt. Under the
circumstances, defendant’s claim of prosecutorial misconduct lacks merit.
E.     Ineffective Assistance of Counsel
       Defendant next claims that defense counsel rendered ineffective assistance of
counsel by failing to object to alleged prosecutorial misconduct and by failing to request
certain jury instructions.


                                              24
       To prevail on a constitutional claim of ineffective assistance of counsel on appeal,
defendant has the burden of proving two things. First, defendant must show that his
counsel’s representation was deficient, i.e., it fell below an objective standard of
reasonableness under prevailing professional norms. Second, defendant must show his
counsel’s deficient representation subjected the defense to prejudice, i.e., that there is a
reasonable probability that but for counsel’s failings, the result would have been more
favorable. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694 (Strickland).)
       “ ‘Reviewing courts defer to counsel’s reasonable tactical decisions in examining
a claim of ineffective assistance of counsel [citation], and there is a “strong presumption
that counsel’s conduct falls within the wide range of reasonable professional
assistance.” ’ [Citations.] ‘[W]e accord great deference to counsel’s tactical decisions’
[citation], and we have explained that ‘courts should not second-guess reasonable, if
difficult, tactical decisions in the harsh light of hindsight’ [citation].” (People v. Weaver
(2001) 26 Cal.4th 876, 925-926.) If the record on appeal sheds no light on why trial
counsel acted or failed to act in the manner challenged, an ineffective assistance claim
must be rejected unless counsel was asked for an explanation and failed to provide one,
or unless there simply could be no satisfactory explanation. (People v. Slaughter (2002)
27 Cal.4th 1187, 1219; People v. Pope (1979) 23 Cal.3d 412, 426.)
       1.     Failure to Object to Alleged Prosecutorial Misconduct
       Defendant argues that the prosecutor’s mosquito analogy trivialized the concept of
premeditation, which had to be proven beyond a reasonable doubt. According to
defendant, “[t]he basic premise of the prosecutor’s argument was that premeditation was
proven beyond a reasonable doubt if it were shown that [he] exercised the same thought
process as a person brushing a mosquito off his arm.” Defendant further claims that the
prosecutor’s comments that to the jury that it should only consider evidence of mental
illness, paranoia, and delusions at the sanity phase “effectively removed from the jury’s
consideration” whether defendant’s paranoia and delusions “tended to negate
premeditation and deliberation.”



                                              25
       Defense counsel affirmatively chose to address the comments in the prosecutor’s
initial closing argument in defendant’s closing argument. Such a choice was a reasonable
tactical decision. It is a common and acceptable strategy to allow opposing counsel’s
argument to proceed uninterrupted, perhaps to avoid antagonizing the jury, and then to
address objectionable matters in responding argument. (People v. Plasencia (1985) 168
Cal.App.3d 546, 556.)
       Defendant, however, criticizes his counsel’s choice, arguing that counsel’s failure
to object did not inure to his benefit. We do not accept defendant’s criticism. Defense
counsel’s argument clearly distinguished defendant’s situation from the district attorney’s
mosquito analogy by stating, “[t]he difficulty is you don’t know. You are not there
watching the person at the picnic swat the mosquito. In this case, you don’t know what
occurred during that time the car pulled up on Lincoln Circle. You don’t have the ability
to look inside [defendant’s] head.” Similarly, defense counsel responded to the
prosecutor’s suggestion that evidence of defendant’s mental illness should be considered
at the sanity phase by describing defendant’s general paranoia and fear on the night of
Chu’s death, and argued that defendant’s “delusional fear or not is something that you
can consider when it goes to premeditation and deliberation.”
       We find no fault with defense counsel’s tactical choice of dismissing the mosquito
analogy and focusing the jury’s attention to defendant’s particular thought process. The
argument had the positive effect of requiring the prosecutor to respond in his final closing
argument with a discussion of how the jury could consider evidence of defendant’s
mental illness at the guilt phase. We find defense counsel’s performance was not
deficient.
       Similarly, the prosecutor’s repeated statements that the jury was charged at the
guilt phase only with determining whether he committed the elements of the charged
crimes, while reserving the issue of sanity for a later phase, was not necessarily in error,
and the trial court might not have sustained such an objection. As discussed, defense
counsel dismissed the mosquito analogy and exhorted the jury to consider all of the



                                             26
evidence, including defendant’s “delusional fear[s],” at the guilt phase in determining
whether he acted with premeditation and deliberation.
       Accordingly, we conclude defense counsel’s failure to object to the prosecutor’s
comments was not objectively unreasonable under the circumstances. In other words,
counsel’s representation was not deficient.
       2.     Failure to Request Certain Jury Instructions
       Defendant next claims that his trial counsel was ineffective by failing to request
jury instructions that would have provided a legal basis for finding that he did not commit
first degree murder. According to defendant, trial counsel should have requested
instructions that the jury could consider defendant’s delusions (CALCRIM No. 627), any
acts of provocation (CALCRIM No. 522), which he asserts would not have to be
reasonable, but could be “viewed through the prism of his paranoid delusions,” and a
manslaughter instruction based on Garcia, supra, 162 Cal.App.4th 18. He further
contends defense counsel was deficient in failing to request a modification of the
definition of malice aforethought (CALCRIM No. 520), so as to reference his claim of
imperfect self-defense (CALCRIM No. 571).
       We find no fault with defense counsel’s failure to seek the challenged jury
instructions. Here, based on the scant evidence of defendant’s delusions and the
complete lack of evidence regarding any provocative acts by the victim, defense counsel
made a reasonable and tactical decision to not request CALCRIM Nos. 522 and 627.
Inasmuch as defendant did not testify that Chu provoked him, and no other evidence was
presented at trial showing that defendant misperceived Chu as a threat in the car as a
result of his delusions, the trial court would likely have denied defendant’s requests for
CALCRIM Nos. 522 and 627 as not supported by substantial evidence.
       Similarly, it appears that defense counsel had tactical reasons for not requesting a
modification of the definition of malice to add a reference to defendant’s imperfect self-
defense theory, which cannot be based on delusions alone (Elmore, supra, 59 Cal.4th at
pp. 135-137) and for not requesting a manslaughter instruction based on a theory that had
no legal basis (Bryant, supra, 56 Cal.4th at p. 970). Defendant has failed to carry his


                                              27
burden of disproving that defense “counsel had no such tactical purpose.” (People v.
Jones (2003) 30 Cal.4th 1084, 1122.)
        3.     No Resulting Prejudice
        Even assuming arguendo that defendant was able to demonstrate deficient
performance on the part of defense counsel, he has not demonstrated that “a reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding
would have been different.” (Strickland, supra,466 U.S. at pp. 687-688, 694.)
        To begin, the evidence supporting the verdict was substantial, and no evidence
was presented showing that defendant believed Chu posed a threat when defendant shot
him 11 times in the head. Any prejudicial impact of the prosecutor’s argument was
minimized through defense counsel’s effective response during his own closing.
        Similarly, there was little prejudicial effect from the trial court’s failure to instruct
with CALCRIM Nos. 522 and 627 because, though the jury would have been instructed
to consider Chu’s real or imagined provocatory conduct toward defendant, no such
evidence whatsoever was presented at trial. Moreover, the trial court properly and fully
instructed the jury on the meaning of malice aforethought (CALCRIM No. 520), on the
mental state required for deliberate and premeditated murder (CALCRIM No. 521), on
unpremeditated murder in the second degree (CALCRIM No. 520), on the jury’s duty if it
found a reasonable doubt as to the degree of murder (CALCRIM No. 521), on the effect
of voluntary intoxication on homicide crimes (CALCRIM No. 625), on the insufficiency,
by itself, of multiple acts of violence to establish premeditation and deliberation (Special
Jury Instruction No. 1), and that the jury must accept and apply the law as the court states
it, not as the attorneys state it (CALCRIM No. 222). “[T]he jury is presumed to consist
of intelligent persons who are fully able to understand, correlate and follow the
instructions given to them.” (People v. Archer (1989) 215 Cal.App.3d 197, 204.) Absent
evidence to the contrary, and there is none here, it is presumed that the jury understood
and correctly applied those instructions. (People v. Talhelm (2000) 85 Cal.App.4th 400,
409.)



                                               28
       Finally, the parties’ arguments, taken as a whole, and the trial court’s instructions,
adequately informed the jury of the legal principles relevant to the case. For these
reasons, defendant has not demonstrated a reasonable probability that he would have
been acquitted of first degree murder absent defense counsel’s alleged errors.
       Accordingly, because trial counsel’s performance did not fall outside the wide
range of professionally competent assistance and did not prejudice defendant, his claim
of ineffective assistance of counsel necessarily fails.
F.     Cumulative Error
       Because we reject each of defendant’s claims of error, we also reject his claim that
cumulative error requires reversal. (See People v. Smithey (1999) 20 Cal.4th 936, 1007.)
G.     Sentencing
       Defendant contends that the abstract of judgment erroneously states that he was
sentenced to a consecutive, rather than a concurrent term on the gun charges (§ 12021,3
subd. (c)(1) (count 2)) and that his conviction for this offense was invalid because his
prior, qualifying offense was not among the misdemeanors enumerated in the statute.
While defendant is correct that the abstract of judgment should be modified, his claim as
to the validity of his conviction is not cognizable on appeal.
       1. Background
       In addition to the murder and attempted murder charges, defendant was charged
with violations of section 12021, subdivisions (c) and (d) and four counts of credit card
fraud. Section 12021, subdivision (c)(1) prohibits an individual who has been convicted
of certain enumerated California misdemeanors from possessing a firearm, and section
12021, subdivision (d)(1) criminalizes possession of a firearm where such possession is
prohibited by an express condition of his or her probation. The indictment alleged that
defendant was prohibited from possessing a firearm due to his May 28, 2008, conviction
in Nevada for a violation of Nevada Code NRS 202.290, aiming a firearm at a human

3
       Section 12021, subdivision (c)(1) was repealed, effective January 1, 2012, and
renumbered section 29805 without any substantive change. (Cal. Law Revision Com.
com., 51D (Pt.4) West’s Ann. Pen. Code (2012 ed.) foll. § 29805, p. 237.)

                                              29
being or discharging a weapon where a person might be endangered, “a misdemeanor
equivalent to [ ] Penal Code section 246.3.”
       On November 29, 2011, defendant pleaded no contest to the two firearm
possession counts for “strategic” reasons. At that same hearing, the prosecutor moved to
dismiss the four fraud-related counts.4
       On May 10, 2012, after defendant had been convicted by the jury on the remaining
charges, the trial court sentenced defendant. According to the reporter’s transcript, the
trial court sentenced defendant to “a consecutive midterm sentence of seven years” on the
attempted murder charge, which would precede a “50-year to life sentence” on the
murder charge and gun enhancement. As to the gun charges, the trial court sentenced
defendant to “a two-year midterm concurrent” term as to the section 12021, subdivision
(c)(1) count, with the section 12021, subdivision (d)(1) count stayed pursuant to section
654.
       The clerk’s minutes also indicate that the trial court imposed a consecutive seven
year term on the attempted murder charge, a two year concurrent term on the section
12021, subdivision (c)(1) charge, and a 50 year-to-life term on the murder charge and gun
enhancement. However, the clerk’s minutes also state, “Defendant is committed to
Department of Corrections for 50 years to life plus 7 months.” (Italics added.)
       Finally, the abstract of judgment indicates that the trial court sentenced defendant
to a seven-year consecutive term on the attempted murder charge, a two-year four-month
consecutive term on the section 12021, subdivision (c)(1) count, and a 50 year-to-life
term on the murder charge with the gun enhancement. The abstract of judgment lists a




4
       Contrary to the Attorney General’s assertion on appeal, we find nothing in the
record supporting the contention that defendant pleaded no contest to the gun charges in
exchange for the dismissal of the credit card charges. Rather, the record reflects that
defendant first announced his desire to plead to the gun charges on November 15, 2011.
However, due to apparent calendaring issues, the matter was not actually heard until
November 29, 2012, the same date the prosecutor first indicated the possibility of
dismissing the fraud-related charges.

                                               30
“total time on attached pages” of nine years four months and a “total time” of 50 years to
life plus 7 months.
       2.     The Abstract of Judgment
       “Where there is a discrepancy between the oral pronouncement of judgment and
the minute order or the abstract of judgment, the oral pronouncement controls.” (People
v. Zackery (2007) 147 Cal.App.4th 380, 385.) Moreover, an unauthorized sentence is
subject to correction at any time. (People v. Dotson (1997) 16 Cal.4th 547, 554, fn. 6.)
Here, as the Attorney General concedes, the reporter’s transcript, clerk’s transcript, and
abstract of judgment all conflict with one another. Instead of an aggregate term of 50
years to life, plus 7 months, the intended sentence was obviously 50 years to life, plus 7
years determinate. Because there is no reason to suspect that the reporter’s transcript is
incomplete or incorrect, and in fact, the sentence memorialized therein provides the most
logical sentence, we find the reporter’s transcript controlling and modify the abstract of
judgment accordingly. The reporter’s transcript clearly states that the trial court
sentenced defendant to a seven year term on the attempted murder charge and a two year
concurrent term for the section 12021, subdivision (c)(1) charge (for a total determinate
term of seven years), with a 50 year-to-life term for the murder charge and gun
enhancement (for a total indeterminate term of 50 years to life). We shall order the
abstract of judgment be modified accordingly.
       3.     Validity of Conviction
       Defendant next attempts to contest the validity of his conviction for firearm
possession. He argues that his misdemeanor conviction for a prior Nevada gun offense
was not a qualifying offense under section 12021, subdivision (c)(1), which pertains only
to California crimes. Although acknowledging that section 12021, subdivision (c)(1)
would not apply to defendant’s out-of-state misdemeanor conviction (see People v.
Delacy (2011) 192 Cal.App.4th 1481, 1493), the Attorney General, nevertheless, argues
that defendant’s claim must fail, as it is not cognizable on appeal. We agree.
       Generally speaking, under section 1237.5, a defendant may not bring an appeal
from a judgment of conviction entered after a guilty or no contest plea unless he or she


                                             31
has first obtained from the superior court a certificate of probable cause. (People v.
Mendez (1999) 19 Cal.4th 1084, 1095 (Mendez). “A defendant who has pleaded guilty or
nolo contendere, however, need not file a written statement or obtain a certificate of
probable cause if the appeal is based on the following grounds: ‘(A) The denial of a
motion to suppress evidence under . . . section 1538.5; or [¶] (B) Grounds that arose after
entry of the plea and do not affect the plea’s validity.’ ([Cal. Rules of Court, rule]
8.304(b)(4); see also . . . Mendez [, supra,] 19 Cal.4th [at p.]1099 . . . .) Defendant here
does not base his appeal on either noncertificate ground.” (People v. Maultsby (2012) 53
Cal.4th 296, 299, fn. 2 (Maultsby).) “The purpose of section 1237.5 is ‘to weed out
frivolous and vexatious appeals from pleas of guilty or no contest, before clerical and
judicial resources are wasted.’ (People v. Buttram (2003) 30 Cal.4th 773, 790; see
Mendez, supra, 19 Cal.4th at p. 1095 [§ 1237.5 ‘is procedural in nature’].)” (Maultsby,
supra, 53 Cal.4th at p. 299.)
       Defendant maintains that he was not required to obtain a certificate of probable
cause under section 1237.5 because his no contest plea was “ancillary” to the charges that
he took to trial. Relying on Maultsby, supra, 53 Cal.4th 296, defendant asserts that “there
is no efficiency to be gained in requiring a certificate of probable cause when a single
judgment is based [on] convictions that combine guilty pleas and jury trial convictions
. . . .” Defendant’s reliance on Maultsby is misplaced, as this case supports our
conclusion that a certificate of probable cause was required in the instant case.
       In Maultsby, our Supreme Court addressed the issue of whether a defendant who
was convicted by a jury of a petty theft offense, but who had admitted a prior felony
conviction was required to obtain a certificate of probable cause to pursue an appeal
limited to his admission of the prior conviction. (Maultsby, supra, 53 Cal.4th at p. 298.)
Under these circumstances, the court concluded that section 1237.5 did not apply. (Ibid.)
The court explained that the “Legislature has distinguished between pleas, such as guilty,
not guilty, or nolo contendere[], and admissions to sentencing allegations.” (Id. at
p. 299.) The court reasoned that in light of this distinction, together with the limited
application of section 1237.5 to only convictions based on a “plea of guilty or nolo


                                              32
contendere,” the necessary implication was that the certificate of probable cause
requirement was not intended to apply to an admission of a sentencing enhancement
allegation. (Id. at pp. 299-300.) Thus, based on its plain language, the court concluded
that section 1237.5 “does not apply to an appeal where a defendant does not plead guilty
or nolo contendere.” (Id. at p. 300, fn. omitted.)
       Here, however, defendant pleaded no contest to the section 12021, subdivision
(c)(1) charge, and thus his appeal falls plainly within the purview of section 1237.5.
Defendant misreads Maultsby to the extent he claims that section 1237.5 should not apply
where, as here, a defendant pleads guilty to some charges but takes others to trial.
Nothing in Maultsby stands for the proposition that a defendant who goes to trial on some
counts, but who enters guilty or no contest pleas on others is able to bypass the
gatekeeping provisions of section 1237.5. Moreover, here, unlike in Maultsby, defendant
pleaded no contest to a substantive offense. “This factual circumstance alone triggers
section 1237.5’s requirement that a defendant obtain a certificate of probable cause.
[Citations.]” (Maultsby, supra, 53 Cal.4th at p. 302.)
       Accordingly, we conclude that defendant’s challenge to his section 12021,
subdivision (c)(1) conviction is barred in the absence of a certificate of probable cause.

                                   III. DISPOSITION
       The abstract of judgment and minute order are corrected to reflect the following:
1) the sentence of a two-year concurrent term for count 2 ( § 12021, subd. (c)(1); 2) the
consecutive sentence of a determinate term of seven years for count 8 (§ § 664 & 187,
subd. (a)), which shall precede the indeterminate term of 50 years-to-life for count 1
(§ 187, subd. (a).) The superior court clerk is directed to prepare and forward a copy of
the amended abstract of judgment to the Department of Corrections and Rehabilitation.
As so modified, the judgment is affirmed.




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                                 _________________________
                                 REARDON, J.


We concur:


_________________________
RUVOLO, P. J.


_________________________
RIVERA, J.




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