P. v. Hua

Filed 7/24/07 P. v. Hua CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Harvey Giss, Judge. Affirmed.

Richard D. Miggins, under appointment by the Court of Appeal, for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Linda C. Johnson and Carl N. Henry, Deputy Attorneys General, for Plaintiff and Respondent.

A jury convicted defendant Tu Luong Hua of two counts of first degree murder with special circumstances and use of a firearm. (Pen. Code, 187, subd. (a), 190.2, subd. (a)(3) [multiple murders], (15) [lying in wait]; 12022.53, subd. (d).)[1] Defendant received two consecutive sentences of life without parole for the murders and two consecutive terms of 25 years to life for the firearm enhancements. Defendant contends on appeal that his taped confession should have been excluded, the prosecutor committed misconduct, his trial counsel was ineffective, and that numerous CALCRIM instructions are erroneous and misleading. We affirm.

BACKGROUND

Defendant, who confessed to both killings, did not dispute his identity as the shooter. At about 2 a.m. on July 20, 2003, defendant shot and killed his brother-in-law, Yu Huynh, at the home that Huynh was sharing with defendant. Huynh had raised defendant and provided for him following the deaths of defendants father and sister (Huynhs wife).

Defendant shot the second victim, Stanley Adamakis, at around 4:40 that morning. After shooting Huynh, defendant walked one mile to Adamakiss apartment, carrying the assault rifle used in both killings. Ana Cortez, who lived in the same complex, was awakened by a loud banging sound and a male voice saying, Stan, open the door. I need a ride. About a minute later, Cortez heard several gunshots and called 911. Cortez found Adamakis outside, lying face down on the ground.

Officers from the Los Angeles Police Department responded to the 911 call and recovered the assault rifle from a little cubbyhole or crawl space near Adamakiss body. The officers were still at the complex when at 7 a.m., defendant placed a 911 call (which was played for the jury) to report a dead body at his home. Defendant told the 911 operator, I came home and he was laying there, bloody, with a gunshot wound to the head.

In response to defendants 911 call, Officers Kelley and Dameworth left the apartment complex and arrived within minutes at defendants home. Defendant informed them that his brother-in-law had been shot; [s]omebody shot him. I dont know. I think it was a robbery. According to Kelley, defendant appeared to be walking, standing, moving, and speaking without difficulty.

Defendant told Kelley that four tenants, two adults and two children, were still inside the house. Kelley informed defendant that he was not under arrest, but that he was going to be handcuffed while the officers secured the area. The officers kept an eye on the residence while defendant remained on the tailgate of a pickup truck parked in the driveway. The tenants, who spoke Vietnamese, did not come out despite being told to do so over a police loudspeaker.[2] After about 30 minutes, backup officers arrived and the tenants were escorted outside. Inside the house, Kelley found Huynhs body on the floor of his bedroom and rifle casings in the adjacent hallway.

The door to defendants bedroom was locked, but defendant gave Dameworth the key and stated that he had .223 (rifle) ammunition in his room. After finding the ammunition, Dameworth asked defendant for the weapon that went with the ammunition.[3] Defendant first said that he hid it somewhere, but it was no longer there. Then he said that he had placed it in a gully to the west of his residence in the street, but that it was no longer there either because someone had taken it. Dameworth looked in the gully but could not find the rifle. During this time, defendant was cooperative, spoke in a [s]low, deliberate manner, displayed [n]o emotion, and had a flat affect.

At 8 a.m., Officer Ismail transported defendant to the station. Ismail asked defendant for his name, address, date and place of birth, phone number, and Social Security number. Defendant provided the above information without difficulty, speaking in a normal, calm manner and showing no signs of being delusional.

At 9 a.m., Detectives Holmes and Martinez conducted a 90-minute interview of defendant at the station. During the interview, which was secretly taped, defendant waived his Miranda[4]rights and confessed to both shootings. The tape of the interview, as well as defendants other extrajudicial statements, were admitted at trial over defendants objection that he was not given a proper Miranda warning and did not validly waive his rights.

During the interview, defendant mentioned some possible motives for the killings, including that he had argued with Huynh on the night before the killings and that Huynh had sent him to the mental hospital for just messing around and spraying water. Defendant also accused Adamakis of having sexually abused him for five years.

Defendant, whose urine sample tested positive for methamphetamine and marijuana, told the officers that he had not slept for two days and that he had used methamphetamine and marijuana before the shootings. He also admitted, however, that he wasnt that sedated, wasnt really messed up, wasnt too high, and was not sleepy.

According to Huynhs girlfriend Diane Fung, defendant had an unidentified illness that was [l]ike depression and had often treated Huynh badly. Fung testified that Huynh had tried to take defendant to a doctor but that defendant had refused.

The defense presented no evidence at trial. Defense counsel argued that the killings were second degree, not first degree, murder because, due to defendants mental disease and intoxication, he did not premeditate and deliberate before the shootings.

At the prosecutions request, the trial court instructed the jury on Voluntary Intoxication: Effects on Homicide Crimes (CALCRIM No. 625) and Mental Impairment: Defense to Specific Intent or Mental State (CALCRIM No. 3428). The jury returned two first degree murder convictions and found the special circumstance and firearm allegations to be true.

DISCUSSION

I. Defendants Confession Was Admissible

A. Additional Facts

Detectives Holmes and Martinez began interviewing defendant at the station by asking a few questions to ascertain whether he was thinking right. Defendant, who was 24 years old, stated that after high school, he had attended two years of community college. Defendant responded lucidly to questions regarding his location (At Devonshire, the police station), home address and zip code, home telephone number, and date of birth (8-21-78).

The officers then advised defendant of his Miranda rights.[5] After stating that he understood each of those rights, defendant agreed to discuss what happened last night. As summarized below, defendant gave a detailed account of both shootings, but his account was interspersed with references to spooks, which he blamed for what happened, the house, which he said was pulling him around, spiders, weird neighbors, voices, codes, and events unrelated to the killings.

Regarding Huynhs death, defendant stated that on the night before the shootings, defendant had argued with Huynh [o]ver nothing. It wasnt nothing to shoot him for. . . . I dropped a bunch of CDs on the ground. He thought, you know, no big deal. He forgot about it. And I took the gun [from the closet in Huynhs bedroom] into my room. Defendant used wire cutters to remove the chain lock from the rifle. The rifle was a Bushmaster XXM-715, semi-automatic, 223, 10-round clip that defendant had beg[ged] my brother [to] buy . . . . Defendant had two types of ammo for the rifle, including Remington black hills. Defendant loaded the rifle and at about 2:00 a.m., went to Huynhs bedroom and called him. Huynh, who was in bed . . . watching TV, got up and walk[ed] to the door. Before he fired, defendant thought for like a second about everything hes done for me. And I just said, Later. Pretty creepy. Defendant fired three shots, trying to act as quickly as possible, painless as possible. I dont know where I hit him. I saw him flew back, so I just run out the door and f------ left. Once outside the house, defendant stuck around the neighborhood, waiting for you guys pick me up, cause I had nowhere to go. I went back to the house. You guys didnt pick it up yet, you didnt take out your trash. And then I got freaked out, lock the door. Called my his girlfriend, hoping shell call you guys, because I dont want nothing do with you guys . . . . You guys dont come to my rescue.[6]

Regarding Adamakiss death, defendant stated that after shooting Huynh, he had walked down the street, sweating my ass off. He needed that. He need that licking. Defendant walked to Adamakiss apartment, thinking, What the hell. If Im going to shoot my brother, Im going to shoot this ass hole, too. I walked up to his window and knocked on his window. I had it figured out before, you know, I was going to do it. I came to his window. I told him to get out. And he wouldnt come out. He went back to sleep. I told him I need a ride home, so he walked out the back door. I put the gun next to the tire. I put the barrel down first so, you know, grab a hold of the handle. He came out the door. He said, you know, he said, you know, he came up to me. I blew him back. Then he twisted. [] DETECTIVE HOLMES: So you went down into the carport and kind a had the gun waiting for him to come out to you? [] [Defendant]: Yeah, I point it right at his chest. And he flew back. And he landed on his belly or front side. After shooting Adamakis, defendant left the rifle in a like a little drainage, . . . right next to his window. I just left the gun there with my fingerprints, everything. I got nothing to hide, I guess. Hes a freak of nature. Hits on every f------ young guy he he meets. [H]es been messing with me like for years, you know, like about five years. I never I never did anything to provoke him, you know, you know, he he set himself on me. Defendant dropped the ammunition clip in the bush, and just left. And I saw another guy walk out. I just walked away like nothing happen . . . .[7]

After shooting Adamakis, defendant walked home. I got home when the sun came up and saw my brother. Defendant saw Huynh [j]ust laying on the ground in his bedroom right next to in front of the desk. Pretty horrific. Couldnt believe I had to do that. Freaked me out.

B. The Trial Courts Ruling

At a pretrial hearing, defense counsel requested that the prosecution establish a foundation for the admission of defendants extrajudicial statements, including the taped confession.[8] The trial court, stating that it had already listened to the tape and read the transcript of defendants interview, heard testimony from the officers who spoke with defendant after the shootings. The prosecutor then argued that defendant, after being properly advised of his Miranda rights, had validly waived his rights by voluntarily answering the officers questions. Defense counsel countered that the Miranda warning was insufficient because the officers had failed to read from the card that is recommended for them to use, and had given the warning in an awkward and unconstitutional fashion. Defense counsel also argued that the waiver was invalid because, despite defendants statement that he cant really comprehend right now, he was never asked, do you give up the rights.

The trial court deemed all of defendants extrajudicial statements admissible. The trial court noted that although defendant had expressed an initial inability to comprehend some of his rights, he later answered that he understood the additional explanations that were given. The trial court stated that it was accepting defendants final answer as he gave it, noting that defendant didnt again say I cant comprehend or dont understand, which he had no problem stating before. As for defendants use of methamphetamine and marijuana, the trial court found, based on the totality of the circumstances, that his condition was not an impediment to his waiving his constitutional rights, because he had the wherewithal[] to be able to try to hide the incident and hide[] the weapon, showing knowledge.

C. The Confession Was Properly Admitted

Defendant challenges on appeal the admissibility of his taped confession, arguing that he was not given a proper Miranda warning and did not make a voluntary, knowing, and intelligent waiver. We disagree.

1. Standard of Review

In considering a claim that a statement or confession is inadmissible because it was obtained in violation of a defendants rights under Miranda v. Arizona (1966) 384 U.S. 436, the scope of our review is well established. We must accept the trial courts resolution of disputed facts and inferences, and its evaluations of credibility, if they are substantially supported. [Citations.] However, we must independently determine from the undisputed facts, and those properly found by the trial court, whether the challenged statement was illegally obtained. (People v. Bradford [(1997)] 14 Cal.4th [1005,] at p. 1033.) We apply federal standards in reviewing defendants claim that the challenged statements were elicited from him in violation of Miranda. (Ibid.)

Once a suspect receives Miranda warnings, he is free to exercise his own volition in deciding whether or not to make a statement to the authorities. (Oregon v. Elstad (1985) 470 U.S. 298, 308.) If he thereafter requests counsel, the interrogation must cease until an attorney is present. (Edwards v. Arizona (1981) 451 U.S. 477, 482, quoting Mirandav. Arizona, supra, 384 U.S. at p. 474.) If a suspects request for counsel or invocation of the right to remain silent is ambiguous, the police may continue talking with him for the limited purpose of clarifying whether he is waiving or invoking those rights. (Peoplev. Johnson (1993) 6 Cal.4th 1, 27; see Davis v. United States (1994) 512 U.S. 452, 461 [police may seek to clarify suspects ambiguous reference to counsel].) The state must demonstrate the voluntariness of a confession by a preponderance of the evidence. (People v. Bradford, supra, 14 Cal.4th at p. 1033; see Colorado v. Connelly (1986) 479 U.S. 157, 168; [citation omitted].) (People v. Box (2000) 23 Cal.4th 1153, 1194-1195.)

2. The Advisement Was Sufficient

On appeal, defendant challenges the sufficiency of his Miranda warning, but only with regard to the right to appointed counsel. Defendant was advised that he had the right to the presence of an attorney before and during any questioning, and that he could request an attorney before we start talking to you, after we start talking to you, or anything. In relevant part, defendant was told, if you cannot afford an attorney, one will be appointed for you free of charge before any questioning, if you want. (Italics added.) Defendant contends that the latter advisement was insufficient because it failed to inform him of his right to an appointed attorney during questioning. We are not persuaded.

Under Miranda,an advisement of the right to counsel is sufficient if the defendant is informed that he has the right to the presence of an attorney, and that if he cannot afford an attorney one will be appointed for him prior to any questioning if he so desires. (Miranda, supra,384 U.S. at p. 479, italics added.) According to Duckworth v. Eagan (1989) 492 U.S. 195, 202, a Miranda warning need not be given in the exact form described in Miranda, and the reviewing court need not examine Miranda warnings as if construing a will or defining the terms of an easement. (Id. at p. 203.) In this case, the advisement of the right to counsel closely mirrored the language approved in Miranda, supra, 384 U.S. at page 479,and Duckworth, supra,492 U.S. at page 202, footnote 4. We therefore reject the contention that it was insufficient.

3. The Waiver Was Valid

According to Moran v. Burbine (1986) 475 U.S. 412, a Miranda waiver is valid if it was made: (1) voluntarily and without coercion; and (2) knowingly and intelligently, with a full awareness of both the nature of the right being abandoned and the consequences of the decision to abandon it. (Id. at p. 421.) In deciding whether a waiver is valid, we consider the totality of the circumstances surrounding the interrogation. (Ibid.) An express waiver is not necessary. We may find an accused has waived his Miranda rights if the facts and circumstances surrounding the case show that the accused understood his or her rights and proceeded to speak with the officers. (North Carolina v. Butler (1979) 441 U.S. 369, 374-375.)

The transcript shows that defendant, after being explained each aspect of his Miranda rights, stated that he understood each provision. Defendant points out, however, that after being advised regarding the right to remain silent and being asked to explain what that means, his response, I have the right to say anything I dont want to say, was the opposite of what that directive means. Defendant further points out that after being advised concerning the right to counsel and being asked to explain what that means, his response, Im sort a messed up right now, failed to indicate an understanding of that right. Defendant contends that it seems more probable than not that he was merely mimicking the officers when he subsequently stated that he understood each right. Defendant argues that his mental impairment precluded him from knowingly and intelligently waiving his Miranda rights.

The transcript shows, however, that defendant had both a clear recollection of his actions and a clear understanding of the incriminating nature of his statements. He not only accurately gave the details of both shootings with an accurate timeline, which was corroborated by the physical evidence and testimony, but he also admitted that he wasnt that sedated, wasnt really messed up, wasnt too high, and was not sleepy. He expressed an awareness of the incriminating nature of his confession by stating, I just admitted everything to you, Im going to jail for a long time, and Am I going to fry in the chair? The record, accordingly, amply demonstrates that defendant understood his rights and freely chose to speak to the detectives.

Defendant also contends that his waiver was invalid because he was so incapacitated by drugs, mental illness, and lack of sleep that his confession was not voluntary. In the absence of evidence of police coercion, however, a defendants mental incapacity, whether natural or induced, does not in itself render a defendant incapable of voluntarily waiving his rights. (People v. Cox (1990) 221 Cal.App.3d 980, 985-986 [waiver was voluntary despite the defendants intoxication].) Given the lack of any evidence of police coercion in this case, the contention lacks merit.[9]

4. The Confession Was Reliable

Defendant contends that his confession should have been excluded as unreliable because he was precluded by his mental incapacity from giving appropriate responses to the officers questions. He argues that his answers were inappropriate to time and space and he expressed an inability to maintain linear thought and expressiveness.

Under People v. Cox, supra, 221 Cal.App.3d at page 986, footnote 3, an objection could have been raised under Evidence Code section 352 to exclude the confession as unreliable. As in Cox, however, the objection was waived because it was not raised below. The failure to object to evidence ordinarily waives the right to claim error from its admission. (People v. Karis (1988) 46 Cal.3d 612, 634 at fn. 16.) (Ibid.)

In any event, the contention lacks merit. Although defendant talked about spooks, spiders, weird neighbors, voices, and codes, we conclude that his actions (including his ability to cut the lock, load, and fire the rifle, to walk a mile each way between the apartment and his home, to persuade Adamakis to come outside at 4:40 a.m. under false pretenses, to place the 911 call and misleadingly describe the shooting as an apparent robbery, to leave Fung a message about Huynhs death in order to compel her to phone the police, to describe accurately the details of the shootings and the location of the rifle, to recite his Social Security number, telephone number, and other identifying information) showed that he was not incapacitated and was able to provide reliable information. Given the strength of the evidence on this point, any objection under Evidence Code section 352 would have been futile.

5. Detective Martinezs Remarks

After waiving his Miranda rights, defendant admitted taking the rifle from Huynhs bedroom on the night of the shooting and cutting off the lock. When asked to describe what happened next, defendant replied, Uh, do I have to say? Martinez responded, You should (Inaudible), and defendant inquired, You sure? Martinez then replied, Yeah, it may talking about it may help you get over it a little bit sooner. I know its tough. Its difficult. This is probably the most difficult thing youll ever do in your whole life, okay?

Based on the above exchange, defendant contends on appeal that he invoked his right to remain silent during the interview but that Martinez misled him to continue answering questions. Defendant argues that [e]ven if there were doubt about that exchange, all doubt was laid to rest by the follow-up. When appellant asked the detective if the detective was sure that appellant should speak, the detective responded, Yeah. Defendant maintains that his Fifth Amendment rights were violated.

Defendants argument exceeds, however, what is supported by the record, which is unclear. Defendants question, do I have to say[,] was ambiguous and did not constitute either an unequivocal request for counsel or an unequivocal invocation of the right to remain silent. If a suspects request for counsel or invocation of the right to remain silent is ambiguous, the police may continue talking with him for the limited purpose of clarifying whether he is waiving or invoking those rights. (Peoplev. Johnson (1993) 6 Cal.4th 1, 27; see Davis v. United States (1994) 512 U.S. 452, 461 [police may seek to clarify suspects ambiguous reference to counsel].) (People v. Box, supra,23 Cal.4th at p. 1194.) Moreover, because Martinezs response to defendants question, do I have to say[,] was unintelligible, we disagree that Martinezs follow-up response of Yeah, was intended to override defendants Miranda rights. Had an objection on this point been raised and litigated below, Martinez could have testified about what was said and the trial court could have resolved any factual disputes and made the necessary findings. We conclude, therefore, that the issue was waived by defendants failure to raise it below. (See People v. Gurule (2002) 28 Cal.4th 557, 602.)

In any event, the contention lacks merit because, not only was there no clear invocation of the right to counsel or to remain silent, there was no coercive or improper behavior on the part of the officers. In this regard, the cases relied upon by defendant are distinguishable. (Citing People v. Honeycutt (1977) 20 Cal.3d 150 [Miranda waiver invalid because it was preceded by a half-hour conversation designed to elicit the waiver]; Collazo v. Estelle (9th Cir. 1991) 940 F.2d 411 [Miranda waiver invalid because, after the defendant had invoked his right to counsel, he was threatened that things would not go well if he exercised his constitutional rights]; People v. Montano (1991) 226 Cal.App.3d 914 [confessiondeemed involuntary because the defendants repeated requests to halt the questioning were ignored]; In re Gilbert E. (1995) 32 Cal.App.4th 1598 [same].)[10]

II. Prosecutorial Misconduct

Defendant contends for the first time on appeal that the prosecutor committed misconduct during closing rebuttal argument. The first alleged misconduct occurred when the prosecutor stated that the victims did not deserve to be executed. The second alleged misconduct occurred when the prosecutor asked the jury to think about the difficulties that Huynh probably went through escaping from wherever he came from and coming to this country and making a living.[11]

The Attorney General argues that defendant forfeited his claim of misconduct by failing to make a timely objection and request an admonition. We agree. (People v. Cook (2006) 39 Cal.4th 566, 606.)

In any event, based on our review of the record, we conclude that the prosecutors first remark was not misconduct. Defense counsel previously had argued to the jury that although [n]obody deserves to be shot like that, the jury should return second degree murder verdicts because defendant, as [a] man with [an] impairment who had been sexually abused, was not thinking properly when he walked up Van Nuys Boulevard carrying this Bushmaster rifle. In rebuttal, the prosecutor argued that the killings were nevertheless intentional, deliberate, and premeditated first degree murders, and urged the jury not to throw the defense a bone by returning second degree verdicts. In this context, the prosecutor stated that notwithstanding any sexual abuse that defendant might have suffered, the victims did not deserve to be shot and executed. The prosecutors argument was a proper response to defense counsels request for leniency. Moreover, the prosecutors remark was not intended to inflame the jurys passion, but to urge the correct application of the law to the facts of the case.

Regarding the prosecutors second remark concerning the difficulties that Huynh probably went through escaping from wherever he came from and coming to this country and making a living, the Attorney General contends the prosecutor was simply drawing a reasonable inference from the evidence. In his taped interview, defendant described being born in Saigon to a Chinese mother who had died while giving birth, escaping from Vietnam by boat in 1980 during the persecution of the Chinese, and fearing Thai pirates who had boarded boats to steal valuables and commit rape. Given that Huynh, who was approximately 58 years old, had raised defendant, who was 24 years old, after the deaths of defendants father and sister, the Attorney General argues that it was reasonable to infer that Huynh, as part of defendants family, had also escaped to this country, where he worked hard to provide for defendant.

Even if the inference is not entirely warranted, the remark was not prejudicial. Although it is misconduct to ask the jury to view the crime through the eyes of the victims and refer to facts not warranted by the evidence (see People v. Stansbury (1993) 4 Cal.4th 1017, 1057, revd. on other grounds in Stansbury v. California (1994) 511 U.S. 318; People v. Talle (1952) 111 Cal.App.2d 650, 676-677), in the context of this case, the prosecutors brief references to Huynhs background were not so reprehensible or inflammatory as to deprive defendant of a fair trial or influence the verdict. Given the ample evidence of defendants guilt, including his confession to both shootings, it is inconceivable that the jury would have reached a different verdict in the absence of the prosecutors remark.[12]

III. Ineffective Assistance of Counsel

During the prosecutions case-in-chief, the jury was informed that a urinalysis had detected the presence of both methamphetamine and marijuana, but was not told the level of either substance. The jury heard defendants taped statement regarding his use of methamphetamine and marijuana before the shootings, as well as his statements that he wasnt that sedated, wasnt really messed up, wasnt too high, and was not sleepy. The jury heard Fungs testimony that defendant had an unidentified illness that was [l]ike depression, but that defendant had refused to go to the doctor. The jury also heard defendants taped statement that Huynh had sent him to the mental hospital for just messing around and spraying water.

The jury heard no expert testimony, however, on the issues of mental disease or drug use. The jury was not informed that defendant had been examined by two psychiatrists, Dr. Markman and Dr. Sharma, regarding a possible insanity defense. The jury was unaware that both psychiatrists had concluded that defendant was sane at the time of the crimes.

Defendant contends on appeal that his trial counsel was ineffective in failing to present evidence of his specific level of intoxication and mental illness, despite being fully apprised of his history of mental illness and the strength of the intoxication. He also argues that the investigation was inadequate because his attorney failed to seek the assistance of a mental state expert or an expert in the effects of narcotic use[,] and thereby [failed to] learn the significance of appellants condition and its implication and importance to substantiate a defense. In support of his contention, defendant relies upon the expert psychiatric reports of Dr. Markman and Dr. Sharma. Both reports, he claims, contained significant information, which if properly developed may have warranted

findings by the jury of sufficient intoxication or mental disease to negate the required mental state for first degree murder.[13]

A. The Diminished Actuality Defense

The prosecutions theory was that both murders were of the first degree because they were willful, deliberate, and premeditated, and that Adamakiss murder was also of the first degree because it was committed by lying in wait. The jury was instructed that the period of lying in wait need not continue for any particular period of time, but its duration must show a state of mind equivalent to deliberation and premeditation. (CALCRIM No. 521.)[14]

Defendant contends that his trial counsel was ineffective in failing to investigate and introduce evidence of his diminished mental state, which he contends may have led to two second degree murder verdicts. The essence of a showing of diminished capacity is a showing that the defendants mental capacity was reduced by mental illness, mental defect or intoxication. (People v. Berry [(1976)] 18 Cal.3d [509,] 517.) However, the Legislature abolished the defense of diminished capacity before defendant committed this crime. (People v. Castillo (1997) 16 Cal.4th 1009, 1013-1014; People v. Saille (1991) 54 Cal.3d 1103, 1114.) Only diminished actuality survives, i.e., the jury may generally consider evidence of voluntary intoxication or mental condition in deciding whether defendant actually had the required mental states for the crime. (People v. Saille, supra, 54 Cal.3d at p. 1116; but see current 22, subd. (b); People v. Castillo, supra, 16 Cal.4th at p. 1014 & fn. 1.) (People v. Steele (2002) 27 Cal.4th 1230, 1253.)

Evidence of voluntary intoxication, formerly admissible on the issue of diminished capacity (see generally People v. Mendoza (1998) 18 Cal.4th 1114, 1125), now 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. ( 22, subd. (b); People v. Mendoza, supra, at p. 1126.) Accordingly, a defendant is entitled to an instruction on voluntary intoxication only when there is substantial evidence of the defendants voluntary intoxication and the intoxication affected the defendants actual formation of specific intent. (People v. Williams (1997) 16 Cal.4th 635, 677.) (People v. Roldan (2005) 35 Cal.4th 646, 715.)

In this case, the trial court instructed the jury on Voluntary Intoxication: Effects on Homicide Crimes (CALCRIM No. 625) and Mental Impairment: Defense to Specific Intent or Mental State (CALCRIM No. 3428). CALCRIM No. 625, as modified in this case, provides: You may consider evidence, if any, of the defendants voluntary intoxication only in a limited way. You may consider that evidence only in deciding whether the defendant acted with an intent to kill, or the defendant acted with deliberation and premeditation. [] 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. [] You may not consider evidence of voluntary intoxication for any other purpose. CALCRIM No. 3428, as modified in this case, provides: You have heard evidence that the defendant may have suffered from a mental disease, or defect, or disorder. You may consider this evidence only for the limited purpose of deciding whether, at the time of the charged crime, the defendant acted or failed to act with the intent or mental state required for that crime. [] The People have the burden of proving beyond a reasonable doubt that the defendant acted with the required intent or mental state, specifically: malice aforethought. If the People have not met this burden, you must find the defendant not guilty of murder in each count.

B. Ineffective Assistance of Counsel

A convicted defendants claim that counsels assistance was so defective as to require reversal of a conviction . . . has two components. First, the defendant must show that counsels performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsels errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. (Strickland v. Washington (1984) 466 U.S. 668, 687.) The defendant must show that there is a reasonable probability that, but for counsels unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome. (Id. at p. 694; People v. Wright (1990) 52 Cal.3d 367, 404.) Moreover, where the record is silent regarding why trial counsel failed to act as demanded on appeal, unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation, the claim on appeal must be rejected. [Citations.] (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266.)

Our Supreme Court recently reiterated the obligations of appellate courts in reviewing claims of ineffective assistance of counsel: Reviewing courts defer to counsels reasonable tactical decisions in examining a claim of ineffective assistance of counsel [citation], and there is a strong presumption that counsels conduct falls within the wide range of professional assistance. [Citation.] [W]e accord great deference to counsels 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]. Tactical errors are generally not deemed reversible, and counsels decisionmaking must be evaluated in the context of the available facts. [Citation.] (People v. Stanley (2006) 39 Cal.4th 913, 954, citing People v. Weaver (2001) 26 Cal.4th 876, 925-926.) [] Competent counsel . . . should realistically examine the case, the evidence, and the issues, and pursue those avenues of defense that, to their best and reasonable professional judgment, seem appropriate under the circumstances. [Citation.] (People v. Freeman (1994) 8 Cal.4th 450, 509.) [] Defendants burden is difficult to carry on direct appeal. We reverse on the ground of inadequate assistance on appeal only if the record affirmatively discloses no rational tactical purpose for counsels act or omission. [Citations.] (People v. Montoya (2007) 149 Cal.App.4th 1139, 1147-1148.)

C. Counsels Performance Was Not Deficient

In this case, reversal for ineffective assistance of counsel is not warranted because the available facts, including the expert reports of Drs. Markman and Sharma, compel only one reasonable conclusion: that defendant did not behave like a person so impaired by mental disease or intoxication that he lacked the requisite mental state for first degree murder. Not only did defendant cut the lock, load, and fire the rifle, but he also walked a mile each way between the apartment and his home, persuaded Adamakis to come outside at 4:40 a.m. under false pretenses, placed the 911 call in a manner designed to conceal his guilt, made misleading statements to the officers to hide his involvement, left Fung a message about Huynhs death in an attempt to compel her to call the police, correctly recited his Social Security number, telephone number, and other identifying information, and eventually gave an accurate description and timeline of the shootings and the location of the rifle.

Significantly, defendant admitted just hours after the killings that he wasnt that sedated, wasnt really messed up, and wasnt too high. He also admitted thinking for just a second before shooting Huynh about everything hes done for me. And I just said, Later. Pretty creepy. He then described thinking, just before shooting Adamakis, What the hell. If Im going to shoot my brother, Im going to shoot this ass hole, too. I walked up to his window and knocked on his window. I had it figured out before, you know, I was going to do it. I came to his window. I told him to get out. And he wouldnt come out. He went back to sleep. I told him I need a ride home, so he walked out the back door. I put the gun next to the tire. I put the barrel down first so, you know, grab a hold of the handle. He came out the door. He said, you know, he said, you know, he came up to me. I blew him back.

We conclude that the methodical and deliberate manner in which the crimes were committed, coupled with defendants description of his deliberative thoughts before each shooting, demonstrated the requisite mental state for first degree murder, thereby precluding a viable diminished actuality defense. It was therefore not irrational for defense counsel to refrain from presenting expert testimony regarding defendants mental illness or intoxication, because such opinion testimony would have been directly refuted by the physical evidence, testimony, and defendants own statements.

In any event, given the uncontroverted evidence of the manner of the killings, defendants stated reasons for the killings, and his description of his deliberative process, we cannot conclude that but for counsels perceived errors, there is a reasonable probability that the result of the trial would have been different.

IV. Instructional Error

Defendant challenges numerous CALCRIM instructions as erroneous, misleading, and prejudicial. He also contends that if these instructional issues were not preserved for appellate review, his trial counsel was ineffective in failing to object below. We treat the issues as cognizable on appeal because they implicate defendants substantial rights. ( 1259; People v. Guerra (2006) 37 Cal.4th 1067, 1134.) Given our rejection on the merits of defendants arguments, we necessarily reject the claim of ineffective assistance of counsel.

In reviewing the challenged instructions, we are guided by the established principles that [j]ury instructions must be read together and understood in context as presented to the jury. Whether a jury has been correctly instructed depends upon the entire charge of the court. [Citations.] (People v. Tatman (1993) 20 Cal.App.4th 1, 10.) Jurors are presumed to be intelligent persons capable of understanding and correlating jury instructions. (People v. Yoder (1979) 100 Cal.App.3d 333, 338.) An erroneous instruction requires reversal only when it appears that the error was likely to have misled the jury. (Cal. Const., art. VI, 13; Tatman, at p. 10.) (People v. Brock  (2006) 143 Cal.App.4th 1266, 1277.)

A. CALCRIM No. 200

Defendant challenges the portion of CALCRIM No. 200 that provides, I will now instruct you on the law that applies to this case, contending that it improperly invaded the province of the jury and was improperly coercive. This contention fails because it ignores the portions of CALCRIM No. 200, which provide: Do not assume just because I give a particular instruction that I am suggesting anything about the facts; After you have decided what the facts are, follow the instructions that do apply to the facts as you find them; and It is up to you, exclusively, to decide what happened, based only on the evidence that has been presented to you in this trial. Given that the jury was informed that it was the exclusive arbiter of the facts, the contention that the CALCRIM No. 200 invaded the province of the jury is meritless. (See People v. Brock, supra, 14 Cal.App.4th at p. 1277.)

B. CALCRIM No. 220

Defendant challenges the portion of CALCRIM No. 220 that provides, You must not be biased against the defendant just because he has been arrested, charged with a crime, or brought to trial, contending that the instruction erroneously implies that bias is permissible for reasons other than the three prohibited by the instruction. This contention fails because it ignores CALCRIM No. 200, which provides, Do not let bias, sympathy, prejudice, or public opinion influence your decision. (See People v. Reyes (2007) 151 Cal.App.4th 1491, 1496 [rejecting a similar argument concerning CALCRIM No. 103].) It also ignores the presumption of innocence discussed in CALCRIM No. 220, which states, A defendant in a criminal case is presumed to be innocent. This presumption requires that the People prove each element of a crime and special allegation beyond a reasonable doubt.

Given that CALCRIM No. 200 prohibits all forms of bias, we reject the contention that CALCRIM No. 220 implicitly permits the jury to harbor biases not mentioned in the instruction. (See People v. Brock, supra, 14 Cal.App.4th at p. 1277.)

C. CALCRIM Nos. 223 and 224

Defendant challenges the portion of CALCRIM No. 223 that states, Both direct and circumstantial evidence are acceptable types of evidence to prove or disprove the elements of a charge, including intent and mental state and acts necessary to a conviction, and neither is necessarily more reliable than the other. Neither is entitled to any greater weight than the other. You must decide whether a fact in issue has been proved based on all the evidence.

Defendant contends that this language usurps the function of the jury by erroneously creating the impression they are not free to give specific circumstantial evidence greater weight than other specific direct evidence or vice versa. The contention lacks merit because the challenged portion of the instruction correctly states that circumstantial evidence is as adequate to convict as direct evidence. [Citation.] (People v. Goldstein (1956) 139 Cal.App.2d 146, 155.)

Defendant also challenges CALCRIM No. 223, which applies the reasonable doubt standard to circumstantial evidence.[15] Defendant argues that the instruction is misleading because, by applying the reasonable doubt standard only to circumstantial evidence, it implies by omission that the reasonable doubt standard does not apply to direct evidence. This contention is not persuasive because CALCRIM No. 220 requires the jury to apply the reasonable doubt standard to all the evidence that was received throughout the entire trial, whether direct or circumstantial. (Italics added.)

Defendant also contends that CALCRIM No. 224 lessened the prosecutions burden of proof by stating that the jury must be convinced of the defendants guilt beyond a reasonable doubt, rather than required to find, based on the evidence, that the defendant was proven guilty beyond a reasonable doubt. Defendant objects that a juror can be convinced or satisfied in his or her own mind that the defendant is guilty beyond a reasonable doubt even if the evidence has fallen short of so proving. We reject this contention because CALCRIM No. 220 requires the jury to compare and consider all the evidence that was received throughout the entire trial. (CALCRIM No. 220.) Read together, CALCRIM Nos. 220 and 224 require the jury to apply the reasonable doubt standard to all of the evidence and do not allow the jury to apply the standard randomly to select portions of the evidence. (See People v. Yoder, supra, 100 Cal.App.3d at p. 338 [jurors are presumed to be intelligent persons capable of understanding and correlating jury instructions].)

D. CALCRIM No. 226

Defendant challenges the portion of CALCRIM No. 226 that provides: Do not automatically reject testimony just because of inconsistencies or conflicts. Consider whether the differences are important or not. People sometimes honestly forget things or make mistakes about what they remember. Also, two people may witness the same event yet see or hear it differently. (Italics added.) Defendant asserts that CALJIC No. 2.21.1, which states that [i]nnocent misrecollection is not uncommon, more accurately conveys the greater frequency with which people often or commonly forget things. Defendant argues that by downplaying the frequency with which people sometimes forget, CALCRIM No. 226 gives eyewitnesses a false aura of credibility by implying that more often tha[n] not the identification provided by the purported eyewitness is accurate.

Notwithstanding that defendants identity was not contested at trial, we disagree that CALCRIM No. 226 lends a false aura of credibility to eyewitness testimony. On the contrary, CALCRIM No. 226: (1) recites numerous factors to be considered by the jury in evaluating a witnesss testimony;[16] (2) requires the jury to decide whether testimony is true and accurate based on its common sense and experience; (3) allows the jury to believe all, part, or none of any witnesss testimony; and (4) permits the jury to consider anything that reasonably tends to prove or disprove the truth or accuracy of that testimony.

E. CALCRIM No. 251

CALCRIM No. 251, as given in this case, provides that [e]very crime or other allegation charged in this case requires proof of the union, or joint operation, of act and wrongful intent. [] In order to be guilty of the crimes of first or second degree murder, a person must not only intentionally commit the prohibited act but must do so with a specific intent or mental state. In comparison, CALJIC No. 3.31 requires the jury to find a union or joint operation of act or conduct and a certain specific intent in the mind of the perpetrator. (Italics added.) Defendant contends that CALCRIM No. 251s omission of the words or conduct erroneously removed from the jurys consideration the concept of union of intent and conduct.

When reviewing a supposedly ambiguous jury instruction, we inquire whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. (People v. Frye [(1998)] 18 Cal.4th [894,] 957.) (People v. Welch (1999) 20 Cal.4th 701, 766.) In this case, there is no reasonable likelihood that the jury was misled by the omission of the words or conduct to apply CALCRIM No. 251 in an unconstitutional manner. With regard to the murder and special circumstance allegations, the jury was correctly instructed that the defendants acts had to be tied to a specific intent or mental state. The jury was instructed: (1) that in order to find defendant guilty of murder, it must find that the defendant acted with malice aforethought, which is a mental state that must be formed before the act that causes death is committed; (2) that first degree murder requires a finding that the defendant acted willfully, deliberately, and with premeditation, which means that the defendant decided to kill before committing the act that caused death; and (3) that [i]n order to prove the special circumstances of multiple murders and lying in wait, the People must prove not only that the defendant did the acts charged, but also that he acted with a particular intent or mental state.

F. CALCRIM No. 300

CALCRIM No. 300 provides that [n]either side is required to call all witnesses who may have information about the case or to produce all physical evidence that might be relevant. (Italics added.) Defendant contends that the use of the word all erroneously suggests that he must produce some witnesses and evidence, in violation of the constitutional presumption that he is innocent until proven guilty. We disagree. CALCRIM No. 300 is similar to CALJIC No. 2.11, which was approved as a correct statement of the law in People v. Simms (1970) 10 Cal.App.3d 299, 313.

With respect to the burden of proof, the jury was given CALCRIM No. 220, which states that: (1) criminal defendants are presumed to be innocent; (2) the prosecution must prove each element of a crime and special allegation beyond a reasonable doubt; and (3) the jury must acquit the defendant [u]nless the evidence proves the defendant guilty beyond a reasonable doubt. (CALCRIM No. 220.) In addition, the jury was given CALCRIM No. 355, which states that the defendant may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. Taken together, the instructions did not erroneously suggest that the defendant bears any burden of proof.

G. CALCRIM No. 302

CALCRIM No. 302 provides that in evaluating conflicting evidence, the jury must decide what evidence, if any, to believe. Do not simply count the number of witnesses who agree or disagree on a point and accept the testimony of the greater number of witnesses. On the other hand, do not disregard the testimony of the greater number of witnesses, or any witness, without a reason or because of prejudice or a desire to favor one side or the other. What is important is whether the testimony or any other evidence convinces you, not just the number of witnesses who testify about a certain point.

Notwithstanding the absence of any defense witnesses in this case, defendant contends that CALCRIM No. 302 erroneously implies that the jurys disbelief of defense witnesses means that the prosecutions burden has been met. The instruction does not support such an inference. CALCRIM No. 302 is impartial and does not align prosecution witnesses against defense witnesses. The first sentence, you must decide what evidence, if any, to believe, allows the jury to believe or disbelieve some, all, or none of the witnesses on any given point, regardless of the party that called them as witnesses. Moreover, CALCRIM No. 302 was recently approved in People v. Reyes, supra, 151 Cal.App.4th at page 1497, and is similar to CALJIC No. 2.20, which was approved in People v. Rincon-Pineda (1975) 14 Cal.3d 864, 884-885. The contention, accordingly, lacks merit.

H. CALCRIM No. 355

CALCRIM No. 355, which explains a defendants right not to testify, states that a defendant may rely on the state of the evidence and argue that the People have failed to prove the charges beyond a reasonable doubt. (Italics added.) Defendant contends that the word argue erroneously suggests that the defense has a burden to argue that the case wasnt proven.

When reviewing a supposedly ambiguous jury instruction, we inquire whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution. (People v. Frye, supra, 18 Cal.4th at p. 957.) (People v. Welch, supra, 20 Cal.4th at p. 766.) There is no reasonable likelihood that CALCRIM No. 355 will be applied in the manner suggested by defendant. As we previously stated, the jury was correctly instructed that the prosecution must prove the defendant guilty beyond a reasonable doubt. (CALCRIM No. 220.) In any event, CALCRIM No. 355 is a cautionary instruction that benefits the defendant and any error in giving it was harmless. (People v. Frye, supra, 18 Cal.4th at p. 959.)

I. CALCRIM No. 370

CALCRIM No. 370 provides: The People are not required to prove that the defendant had a motive to commit any of the crimes charged. In reaching your verdict you may, however, consider whether the defendant had a motive. [] Having a motive may be a factor tending to show that the defendant is guilty. Not having a motive may be a factor tending to show the defendant is not guilty. Defendant contends that the instruction: (1) coercively implies the jury is obligated to reach a verdict; (2) improperly permits the jury to consider any free-floating or untethered motive which has nothing to do with the charged crimes; (3) erroneously shifts the burden of proof to the defense to prove the defendant is not guilty; and (4) improperly allows the jury to convict on evidence of motive alone. We disagree.

CALJIC No. 2.51, which is almost identical to CALCRIM No. 370, provides: Motive is not an element of the crime charged and need not be shown. However, you may consider motive or lack of motive as a circumstance in this case. Presence of motive may tend to establish the defendant is guilty. Absence of m